Retaliatory Discharge and the Ethical Rules Governing Attorneys

Alex Long, University of Tennessee College of Law

Abstract

In Garcetti v. Ceballos, the Supreme Court held that a deputy district attorney who, as part of his job duties, raised concerns with his superiors about possibly unlawful activity and was allegedly fired in response had no First Amendment retaliation claim. In support of its conclusion, the Court suggested that adequate checks already existed at the state and federal level to curb the behavior of employers who engage in unlawful activity and to protect the employees who seek to prevent or expose such activity. In addition to state and federal whistleblower statutes, the Court singled out the rules of professional conduct governing attorneys as providing additional safeguards for attorneys in situations similar to the plaintiff in Garcetti. This begs an important question: to what extent do the rules governing the practice of law actually provide attorneys with protection from employer retaliation? Based on the case law to date, the answer is decidedly unclear.Numerous cases attest to the fact that attorneys who report the misconduct of their employers or other attorneys - either internally or externally - face the real possibility of retaliatory discharge. It is not only the act of blowing the whistle that potentially exposes an attorney to retaliation. In numerous cases, attorneys have charged that their employers have taken action against them for otherwise complying with their ethical obligations or acting in furtherance of the policies underlying the rules of professional conduct. Courts have taken a variety of approaches to such cases, with some refusing to recognize any kind of breach of contract or retaliatory discharge claim on the part of an attorney and others recognizing such claims, but under limited circumstances. This Article attempts to resolve some of the confusion by offering a comprehensive approach to claims of retaliatory discharge brought by attorneys. The approach that best balances the competing interests in such cases borrows from Title VII retaliation caselaw and draws a distinction between participating in the lawyer disciplinary process and opposing unlawful or unethical conduct, with greater protection being given to conduct in the former category.