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STILL “SNOWING” IN THE SUNSHINE STATE:
AN ANALYSIS OF AND POTENTIAL SOLUTIONS TO THE
LACK OF PROTECTION FROM EMPLOYER RETALIATION
FOR FLORIDA LAWYERS WHO ADHERE TO THE STATE’S
MANDATORY REPORTING OF PROFESSIONAL
MISCONDUCT RULE
Jason A. Anon
*
ABSTRACT
The Preamble to the Florida Rules of Professional Conduct establishes
lawyers as “officers of the court” and recognizes the self-governing nature of
the legal profession. As such, in addition to requiring adherence to the rules,
the Florida Rules of Professional Conduct also endow all lawyers with the
responsibility of ensuring other lawyers’ adherence to the rules. This charge
of responsibility is directly stated in Section 4-8, Maintaining the Integrity of
the Profession. More specifically, subsection (a) of Rule 4-8.3, Reporting
Professional Misconduct, explicitly requires “[a] lawyer who knows that
another lawyer has committed a violation of the Rules of Professional
Conduct that raises a substantial question as to that lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects [to] inform the
appropriate professional authority.”
Although Rule 4-8.3(a) requires lawyers to report such misconduct, the
Rules fail to provide any express protection for lawyers who are retaliated
against by employers because they report (or insist on reporting) the
misconduct of other lawyers. Furthermore, Florida courts do not recognize
the common law tort cause of action for retaliatory or wrongful discharge;
the Second District Court of Appeal of Florida has also held that Florida
lawyers are precluded from redress under Florida’s Private Sector
Whistleblower Act when they are retaliated against by an employer for
adhering to (or insisting on adherence to) Florida’s mandatory reporting
requirement; and Florida courts will not find a breach of the contractual
implied covenant of good faith and fair dealing (unless an express term of the
*
J.D. candidate, 2019, Florida International University (FIU) College of Law. Special thanks to Professor
Rosario Lozada Schrier, Associate Professor of Legal Skills and Values, for inspiring this Comment and
for her unceasing dedication and guidance throughout the drafting process. Many thanks to the Editorial
Board and Staff of the FIU Law Review for their unrelenting efforts in seeing this Comment through to
final publication. To Mom, Dad, Mike, Ale, and the rest of my family and friends for your unparalleled
support and encouragement. And to Gabrielle Aurora for always believing in me, brightening my darkest
days, and filling my life with inspiration, meaning, and purpose.
12 - ANON.DOCX (DO NOT DELETE) 9/30/19 7:46 PM
1176 FIU Law Review [Vol. 13:1175
at-will employment contract has been breached) in situations where at-will
lawyers are similarly retaliated against.
Thus, given the tension between the mandatory reporting requirement
of Rule 4-8.3(a) and the lack of protection from employer retaliation for
lawyers who report or insist on reporting the misconduct of other lawyers,
(1) Florida courts should recognize in such situations a tort cause of action
for retaliatory or wrongful discharge in contravention of public policy, (2)
the Florida Legislature should redraft the Definitions section of the Florida
Private Sector Whistleblower Act to include the Florida Rules of Professional
Conduct into the definition of “[l]aw, rule, or regulation,” (3) Florida courts
should allow claims for breach of the implied covenant of good faith and fair
dealing with respect to at-will lawyers’ employment contracts in such
situations, or (4) the Florida Supreme Court should draft a new rule (or
alternatively include as a provision or comment under Rule 4-8.4,
Misconduct) in the Florida Rules of Professional Conduct proscribing such
employer retaliation.
I. Introduction ................................................................................... 1176
II. Background ................................................................................... 1180
A. The Duty to Report Professional Misconduct in Florida:
Rule 4-8.3(a) .......................................................................... 1180
B. The Significance of Reporting Professional Misconduct ...... 1182
C. Florida Retaliatory or Wrongful Discharge Law .................. 1185
D. Florida At-Will Employment Contract Law and the Implied
Covenant of Good Faith and Fair Dealing ............................ 1187
III. A Lack of Protection from Employer Retaliation ......................... 1188
IV. Potential Solutions to the Lack of Protection from Employer
Retaliation ..................................................................................... 1193
A. Other Jurisdictions’ Judicial Solutions .................................. 1193
B. Analysis of Judicial Solutions and Discussion of Other
Nonjudicial Solutions ............................................................ 1202
V. Conclusion .................................................................................... 1205
I. INTRODUCTION
After completing three long years of law school and passing the Florida
Bar Examination, you are finally hired as an associate at a private law firm,
a position that you have been searching for tirelessly since becoming a
licensed attorney in the State of Florida. While it has surely taken some time
and effort to adjust from law school to law firm life, you find yourself settling
in with your workload and becoming familiar with your firm’s culture and
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2019] Still “Snowing” in the Sunshine State 1177
operations.
1
However, after several months of work, you begin to realize that
occasionally some of the firm’s practices (as well as the conduct of some of
the other lawyers) are not always as entirely forthright as they should be. For
example, some of the improprieties you might observe are that the work of
junior associates—including your own—is occasionally inadequately
supervised; clients are sometimes provided altered copies of documents that
were supposedly filed as-is with the court; firm performance evaluations and
client billing statements are sometimes partially fabricated; and one of your
supervisors has falsely represented to the firm on a few occasions that he
prepared a document when he had actually never even read it.
2
As you make these observations, you remember sitting in your law
school professional responsibility courses or professional ethics seminars and
learning about the high standards to which lawyers are held because of their
positions of trust within the community and their “special responsibility for
the quality of justice.”
3
You also know that as members of the Florida Bar,
you and your colleagues are held to heightened professional standards,
including the mandatory duty to report serious professional misconduct that
reflects on a lawyer’s fitness to practice law.
4
At the same time, however, you
mentally juggle your professional duties and obligations against other
considerations, such as being labeled as a “snitch” or “rat” within the firm,
being ostracized by your supervisors and coworkers, earning the reputation
of a “troublemaker” within the legal community (and suffering the associated
employment consequences as a result, for example), and even facing
employer retaliation such as demotion or termination for reporting or
insisting on reporting this professional misconduct consistent with your
professional responsibilities.
5
While you consider simply “looking the other way” after contemplating
the potential consequences or effects that could result from a disturbance of
1
See Douglas R. Richmond, Professional Responsibilities of Law Firm Associates, 45 BRANDEIS
L.J. 199, 201 (2007).
2
These facts loosely represent the situation in Wallace v. Skadden, Arps, Slate, Meagher, &
Floam, 715 A.2d 873, 883 (D.C. Cir. 1998).
3
FLA. RULES OF PROF’L CONDUCT pmbl. (THE FLA. BAR 2012) (“As a public citizen, a lawyer
should seek improvement of the law, access to the legal system, the administration of justice, and the
quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should
cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law,
and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of
and confidence in the rule of law and the justice system, because legal institutions in a constitutional
democracy depend on popular participation and support to maintain their authority.”).
4
See id. at r. 4-8.3(a).
5
Douglas R. Richmond, Associates as Snitches and Rats, 43 WAYNE L. REV. 1819, 1821 (1997);
see also Terri Martin Kirik, Retaliatory Discharge for Attorney-Employees in Private Practice: To Do, or
Not To Do, the “Right Thing”, 33 J. MARSHALL L. REV. 383, 383–84 (2000).
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1178 FIU Law Review [Vol. 13:1175
your firm’s current equilibrium,
6
you ultimately decide to report the
professional misconduct you have observed to your supervising attorney.
First, you understand the foundational importance behind your duty to report
such misconduct.
7
Second, you want to avoid being complicit and included
as part of the misconduct or otherwise subjected to disciplinary action. And
third, you think that even if your employing law firm did terminate or
otherwise retaliate against you, you would surely be protected by some sort
of remedy given that, after all, you were simply following a mandatory
obligation to report under the Florida Rules of Professional Conduct.
8
But
think again.
The Florida Rules of Professional Conduct entrust all lawyers licensed
to practice in the State of Florida with the responsibility of maintaining the
integrity of the legal profession by not only adhering to the rules themselves,
but also by ensuring other lawyers’ adherence to the rules: “A lawyer who
knows that another lawyer has committed a violation of the Rules of
Professional Conduct that raises a substantial question as to that lawyer’s
honesty, trustworthiness, or fitness as a lawyer in other respects shall inform
the appropriate professional authority.”
9
While “[r]eporting on a member of
your own profession is usually an unpleasant act,
10
. . . it is necessary for the
protection of the public because co-professionals are often the only people
who become aware of misconduct.”
11
As a parallel, concrete example, most
people would likely want the doctors in an operating room to report a fellow
6
See Balla v. Gambro, Inc., 584 N.E.2d 104, 113 (Ill. 1998) (Freeman, J., dissenting) (“[A]s
unfortunate for society as it may be, attorneys are no less human than nonattorneys and, thus, no less given
to the temptation to either ignore or rationalize away their ethical obligations when complying therewith
may render them unable to feed and support their families.”).
7
See Wieder v. Skala, 609 N.E.2d 105, 109 (N.Y. 1992) (“The reporting requirement is nothing
less than essential to the survival of the [legal] profession.”) (internal citations omitted).
8
See FLA. RULES OF PROF’L CONDUCT r. 4-8.3(a) (THE FLA. BAR 2012).
9
Id.; see also id. at pmbl. (“[E]very lawyer is responsible for observance of the Rules of
Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of
these responsibilities compromises the independence of the profession and the public interest that it
serves.”).
10
Lawyers are reluctant to report their peers because of widespread ambivalence about or negative
attitudes toward self-reporting, ignorance, and fear of retaliation. The rate of reporting for lawyers
working in the same firm is lower still for at least two reasons. First, lawyers feel greater loyalty to
their colleagues. Second, because co-workers often have exclusive knowledge of another lawyer’s
misconduct, they more acutely fear discovery and retaliation.
Richmond, supra note 5, at 1838.
11
LISA G. LERMAN & PHILIP G. SCHRAG, ETHICAL PROBLEMS IN THE PRACTICE OF LAW 92 (4th
ed. 2016); see also Sandra J. Mullings, Wieder v. Skala: A Chink in the Armor of the At-Will Doctrine or
a Lance for Law Firm Associates?, 45 SYRACUSE L. REV. 963, 994 (1995) (“[P]rofessional peers are in
the best position to detect misconduct and, therefore, to serve the public interest of identifying and
removing incompetent or unethical practitioners.”).
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2019] Still “Snowing” in the Sunshine State 1179
doctor or surgeon to authorities if they knew he was intoxicated during an
operation.
12
But the Florida Rules of Professional Conduct are silent on the issue of
protections for lawyers who are retaliated against by their employing law
firms for reporting or insisting on reporting the misconduct of other lawyers.
Additionally, Florida courts do not recognize the common law tort cause of
action for retaliatory or wrongful discharge;
13
the Second District Court of
Appeal of Florida has also held that Florida lawyers are precluded from
redress under Florida’s Private Sector Whistleblower Act
14
when they are
retaliated against by an employer for adhering to (or insisting on adherence
to) Florida’s mandatory reporting requirement;
15
and Florida courts will not
find a breach of the contractual implied covenant of good faith and fair
dealing (unless an express term of the at-will employment contract has been
breached) in situations where at-will lawyers are similarly retaliated
against.
16
Thus, given the tension between the mandatory reporting requirement
of Rule 4-8.3(a) and the lack of protection from employer retaliation for
lawyers who report or insist on reporting the misconduct of other lawyers,
(1) Florida courts should recognize in such situations a tort cause of action
for retaliatory or wrongful discharge in contravention of public policy, (2)
the Florida Legislature should redraft the Definitions section of the Florida
Private Sector Whistleblower Act to include the Florida Rules of Professional
Conduct into the definition of “[l]aw, rule, or regulation,” (3) Florida courts
should allow claims for breach of the implied covenant of good faith and fair
12
LERMAN & SCHRAG, supra note 11.
13
See Smith v. Piezo Tech. and Prof’l Adm’rs, 427 So. 2d 182, 184 (Fla. 1983); DeMarco v.
Publix Super Mkts., Inc., 384 So. 2d 1253, 1254 (Fla. 1980) (affirming and adopting reasoning of
DeMarco v. Publix Super Mkts., 360 So. 2d 134, 136 (Fla. Dist. Ct. App. 1978)); Hartley v. Ocean Reef
Club, Inc., 476 So. 2d 1327, 1330 (Fla. Dist. Ct. App. 1985).
14
Fla. Stat. §§ 448.101–.105 (2017).
15
Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So. 2d 787 (Fla. Dist. Ct. App.
2005). Although this case represents a decision from a mid-level Florida District Court of Appeal, its
dictates are entirely significant because the Florida Supreme Court has acknowledged that Florida district
courts’ decisions “represent the law of Florida unless and until they are overruled” by it. Pardo v. State,
596 So. 2d 665, 666 (Fla. 1992) (quoting Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980)). “[I]n the
absence of interdistrict conflict, district court decisions bind all Florida trial courts.” Pardo, 596 So. 2d at
666 (citing Weiman v. McHaffie, 470 So. 2d 682, 684 (Fla. 1985)). Furthermore,
in the event the only case on point on a district level is from a district other than the one in which
the trial court is located, the trial court [is] required to follow that decision. . . . Contrarily, as between
District Courts of Appeal, a sister district’s opinion is merely persuasive.
Id. at 666–67 (quoting State v. Hayes, 333 So. 2d 51, 53 (Fla. Dist. Ct. App. 1976)).
16
See Snow, 896 So. 2d at 791–92; Ins. Concepts and Design, Inc. v. Healthplan Servs., Inc., 785
So. 2d 1232, 1234 (Fla. Dist. Ct. App. 2001); Burger King Corp. v. Weaver, 169 F.3d 1310, 1316 (11th
Cir. 1999); Hospital Corp. of America v. Fla. Med. Ctr., Inc., 710 So. 2d 573, 575 (Fla. Dist. Ct. App.
1998).
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1180 FIU Law Review [Vol. 13:1175
dealing with respect to at-will lawyers’ employment contracts in such
situations, or (4) the Florida Supreme Court should draft a new rule (or
alternatively, include as a provision or comment under Rule 4-8.4,
Misconduct) in the Florida Rules of Professional Conduct proscribing such
employer retaliation. By applying these potential solutions to the ironic
paradox existing between a mandatory reporting of professional misconduct
rule and a lack of attorney protection from employer retaliation for lawyers
adhering to the reporting rule, Florida lawyers will no longer be “left out in
the cold” by Snow v. Ruden, McClosky et al., Florida’s at-will employment
doctrine, or the silence of the Rules themselves.
Part II of this Comment provides the background and framework
underlying the tension between the mandatory reporting requirement and the
lack of protection against employer retaliation for lawyers. This section
analyzes Rule 4-8.3(a) of the Florida Rules of Professional Conduct,
discusses the importance of adhering to the mandatory reporting requirement,
and surveys Florida retaliatory or wrongful discharge law (including an
analysis of the Florida Private Sector Whistleblower Act) and Florida at-will
employment contract law. Part III examines the Florida District Court of
Appeal case currently dictating Florida’s position on this issue, as well as
analyzes case examples from other jurisdictions that have adopted positions
similar to Florida’s. On the other hand, Part IV presents case examples from
jurisdictions that have responded more favorably to the issue for reporting
lawyers; and these cases offer guidelines for potential solutions to the
predicament in Florida. Additionally, this section addresses the possibility of
a legislative solution to the issue as well as a partial solution involving the
Florida Rules of Professional Conduct themselves. Last, Part V summarizes
where Florida currently stands and where it should be heading.
II. BACKGROUND
A. The Duty to Report Professional Misconduct in Florida:
Rule 4-8.3(a)
Rule 4-8.3(a) of the Florida Rules of Professional Conduct consists of
three parts: a knowledge requirement, a gauge of the severity of the
professional misconduct that must be reported, and a mandatory reporting
obligation. First, the language of Rule 4-8.3(a) is couched in terms of a
lawyer’s knowledge of another lawyer’s violation of the Rules of Professional
Conduct.
17
“The standard for assessing knowledge is objective. The
knowledge must be more than a mere suspicion that misconduct has occurred.
17
See FLA. RULES OF PROF’L CONDUCT r. 4-8.3(a) (THE FLA. BAR 2012).
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2019] Still “Snowing” in the Sunshine State 1181
The question is whether ‘a reasonable lawyer in the circumstances would
have a firm opinion that the conduct in question more likely than not
occurred.’”
18
Next, the mandatory reporting requirement under Rule 4-8.3(a) is
qualified by the language “raises a substantial question as to that lawyer’s
honesty, trustworthiness, or fitness as a lawyer in other respects.”
19
The major
implication of this language, which is also the source of considerable
confusion and significant “gray area,” is that not all violations of the Florida
Rules of Professional Conduct trigger Rule 4-8.3(a)’s mandatory reporting
requirement.
20
As the comment to the rule indicates, the “reporting obligation
[is limited] to those offenses that a self-regulating profession must vigorously
endeavor to prevent. . . . The term ‘substantial’ refers to the seriousness of
the possible offense and not the quantum of evidence of which the lawyer is
aware.”
21
Accordingly, where a lawyer observes professional or ethical
misconduct, such as noticing a colleague neglecting work because of
substance abuse, encountering an opposing counsel who intentionally
obstructs discovery, or being asked to falsify time records by a supervisor,
22
the qualification in Rule 4-8.3(a) requires the lawyer to examine whether
reporting the other lawyer’s misconduct is obligated because its severity or
relation to the practice of law “raises a substantial question as to that lawyer’s
honesty, trustworthiness, or fitness as a lawyer in other respects.”
23
Furthermore, in terms of determining whether the severity of a particular
instance of professional misconduct has triggered an attorney’s mandatory
reporting obligation, Rule 4-8.4, Misconduct, and its comment provide
additional guidance into this inquiry; the Rule explicitly proscribes specific
actions and conduct that are per se misconduct (based on their inclusion in
the rule proscribing misconduct) and would thus trigger the reporting
requirement.
24
The Rule’s comment also provides the following explanation:
Many kinds of illegal conduct reflect adversely on fitness to
practice law, such as offenses involving fraud and the
18
See LERMAN & SCHRAG, supra note 11 at 91 (quoting Restatement § 5 cmt. i).
19
FLA. RULES OF PROF’L CONDUCT r. 4-8.3(a) (THE FLA. BAR 2012) (emphasis added).
20
Id. at r. 4-8.3 cmt. 3 (“If a lawyer were obliged to report every violation of the rules, the failure
to report any violation would itself be a professional offense. Such a requirement existed in many
jurisdictions, but proved to be unenforceable.”).
21
Id. at cmt. 2 (Along these lines, “[a] report about misconduct is [also] not required where it
would involve violation of rule 4-1.6 [(Confidentiality of Information)]. However, a lawyer should
encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s
interests.”).
22
LERMAN & SCHRAG, supra note 11 at 91.
23
FLA. RULES OF PROF’L CONDUCT r. 4-8.3(a) (THE FLA. BAR 2012) (emphasis added).
24
See id. at r. 4-8.4. The Rule begins with the broad proscription, “[a] lawyer shall not:” before
proceeding to enumerate various actions and conduct (a)–(i) explicitly deemed misconduct under the Rule.
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1182 FIU Law Review [Vol. 13:1175
offense of willful failure to file an income tax return.
However, some kinds of offense carry no such implication.
Traditionally, the distinction was drawn in terms of offenses
involving “moral turpitude.” That concept can be construed
to include offenses concerning some matters of personal
morality, such as adultery and comparable offenses, that
have no specific connection to fitness for the practice of law.
Although a lawyer is personally answerable to the entire
criminal law, a lawyer should be professionally answerable
only for offenses that indicate lack of those characteristics
relevant to law practice. Offenses involving violence,
dishonesty, or breach of trust or serious interference with the
administration of justice are in that category.
25
Lastly, the word “shall” in Rule 4-8.3(a) is significant because it makes
the professional reporting requirement mandatory.
26
As opposed to many
other rules and comments in the Florida Rules of Professional Conduct,
which merely recommend courses of action or provide guidelines,
27
Rule 4-
8.3(a) makes it such that a lawyer with knowledge of another lawyer’s
“violation of the Rules of Professional Conduct that raises a substantial
question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in
other respects” must report it to the “appropriate professional authority.”
28
B. The Significance of Reporting Professional Misconduct
While Florida and the vast majority of states have adopted mandatory
reporting rules, relatively few public disciplinary reports have been issued in
which lawyers are disciplined for failing to adhere to their reporting
obligations.
29
Scholars recognize, however, that lawyers in several states
have indeed been sanctioned in various instances for failing to report,
although formal opinions on the matters were never published.
30
In any
regard, state courts maintain the importance of self-regulation of the legal
profession and take seriously attorneys’ failures to report misconduct under
25
Id. at cmt. 1 (Furthermore, “[a] pattern of repeated offenses, even ones of minor significance
when considered separately, can indicate indifference to legal obligation.”).
26
Id. at r. 4-8.3(a).
27
See id. at pmbl. (“Some of the rules are imperatives, cast in the terms of ‘must,’ ‘must not,’ or
‘may not.’ These define proper conduct for purposes of professional discipline. Others, generally cast in
the term ‘may,’ are permissive and define areas under the rules in which the lawyer has discretion to
exercise professional judgment.”).
28
Id. at r. 4-8.3(a).
29
See LERMAN & SCHRAG, supra note 11 at 91.
30
Id. at 94 n.91.
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mandatory reporting rules of professional conduct as exemplified in a
groundbreaking case, In re Himmel.
31
In In re Himmel, Tammy Forsberg retained Attorney Casey to represent
her in a personal injury/property damage case resulting from a motorcycle
accident.
32
A $35,000 settlement was negotiated, and pursuant to his
agreement with Forsberg, Casey was entitled to one-third of any money
received as his attorney fee.
33
Nonetheless, Casey ended up converting the
funds received, and Forsberg retained Attorney Himmel to collect her money,
agreeing to pay Himmel one-third of any money recovered.
34
Accordingly,
Himmel then drafted an agreement in which Casey agreed to pay Forsberg
$75,000 in exchange for Forsberg’s agreement to not initiate any criminal,
civil, or disciplinary actions against Casey.
35
When Casey subsequently
failed to pay, however, Himmel then filed suit against Casey and obtained a
$100,000 judgment was entered against Casey.
36
The issue before the Supreme Court of Illinois was that Himmel had
“received unprivileged information that Casey converted Forsberg’s funds,
and that [Himmel] failed to relate the information to the Commission in
violation of Rule 1 -- 103(a) of the Code.”
37
Recognizing the emphasis of the
“importance of a lawyer’s duty to report misconduct,” the court found that
the information Himmel possessed regarding Casey’s conduct was not
protected by the attorney–client privilege and so was not exempt from the
reporting rule.
38
This was because (1) Forsberg did not communicate the
information to Himmel in confidence because she voluntarily discussed the
matter with Himmel in the presence of third parties such as her mother and
fiancé, and (2) the information was intended to be disclosed by Himmel (with
Forsberg’s consent) to third parties such as the insurance company involved,
the insurance company’s lawyer, and Casey himself.
39
As such, the court
concluded that Himmel “possessed unprivileged knowledge of Casey’s
conversion of client funds, which [was] illegal conduct involving moral
31
See id. at 93.
32
In re Himmel, 533 N.E.2d 790, 791 (Ill. 1988). For this case and subsequent cases discussed in
this Comment, an in-depth description of the facts surrounding each is provided to (1) further highlight
the frequency with which examples of the quandary addressed in this Comment arise and (2) offer a look
into the reality of the situation each lawyer faced when confronting this “Catch-22” dilemma.
33
Id.
34
Id.
35
Id.
36
Id.
37
Id. at 792.
38
Id. at 793–94.
39
Id. at 794.
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1184 FIU Law Review [Vol. 13:1175
turpitude, and that [Himmel] failed in his duty to report such misconduct to
the Commission.”
40
After finding that Himmel violated his duty to report, the court
determined that Himmel should be publicly disciplined to uphold the
purposes of the disciplinary process such as maintaining the integrity of the
legal profession, protecting the administration of justice, and safeguarding
the public.
41
The court thus suspended Himmel from the practice of law for
one year based on the “serious nature of [his] failure to report Casey, the
resulting interference with the Commission’s investigation of Casey, and
[Himmel’s] ill-advised choice to settle with Casey rather than report his
misconduct.”
42
As another example, in In re Condit, Attorney Lawrence Condit settled
his client’s claim alleging legal malpractice, conversion, embezzlement,
fraud, and conflict of interest against the client’s former attorney, Eldridge.
43
Upon Eldridge’s breach of the settlement agreement, Condit and his client
brought suit against Eldridge, and Eldridge’s lawyers then responded by
filing a bar complaint against Condit for violating the state’s mandatory
reporting requirement when he failed to report Eldridge’s misconduct.
44
Subsequently, Condit and the State Bar entered into a discipline by consent
agreement under which Condit admitted to violating state mandatory
reporting requirements and agreed to be publicly censured and to pay for all
of the State Bar’s litigation costs and expenses.
45
However, the state
disciplinary commission rejected the agreement and remanded the case to the
State Bar for the filing of a complaint against Condit.
46
Both Condit and the State Bar then appealed to the Arizona Supreme
Court, certifying the question of whether the state ethical rule regarding the
confidentiality of information relating to the representation of a client
preempted Condit’s duty to report Eldridge’s professional misconduct under
state mandatory reporting requirements.
47
Declining to entirely handle the
issue and set straight the existing interplay between the confidentiality and
reporting ethical rules, the court nonetheless determined that when Condit
40
Id. at 793–95. The court made this finding over Himmel’s arguments that he did not report
Casey’s conduct because he was respecting his client’s wishes (and not motivated by his own financial
gain) and Forsberg had approved/accepted his actions.
41
Id. at 795.
42
Id. at 796.
43
In re Condit, No. SB-94-0021-D, 1995 Ariz. Unpub. LEXIS 5, *1–2 (Mar. 14, 1995). The
parties’ negotiated settlement included in its terms a confidentiality agreement.
44
Id. at *2.
45
Id. at *1–2.
46
Id. at *2. The commission’s primary concern arose out of the confidentiality term included in
the settlement agreement between Condit’s client and Eldridge.
47
Id. at *3.
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brought suit “against Eldridge, the alleged acts of misconduct became a
matter of public record.”
48
Thus, the court explained that once Condit filed
the lawsuit, there was nothing left to be kept confidential, and he was
therefore unprotected from his failure to report Eldridge by the state client
confidentiality ethical rule.
49
As such, after weighing considerations
including, inter alia, the conduct in the case occurring several years before
In re Himmel was decided and the avoidance of further delay in finalizing the
matter, the court ultimately approved of Condit’s discipline by consent
agreement and public censure for violating state mandatory reporting
requirements.
50
Ultimately, however, notwithstanding the possible consequences (such
as affirmative discipline or public reprimand) of failing to report misconduct
under mandatory reporting rules of professional conduct, “[a]ccountability
within the legal profession through self-regulation is a crucial component of
its autonomy, internal integrity, and reputation among the . . . public. The
duty to self-regulate contains elements of both furthering the public’s interest
in trustworthy guardians of the law, as well as protecting the integrity of the
legal profession.”
51
Thus, even if an attorney is licensed in a jurisdiction that
less readily disciplines lawyers for failing to report professional misconduct,
the “ends” the duty to report is aimed at achieving—“maintain[ing] the
integrity of the legal profession, further[ing] the ends of justice, and
protect[ing] the public from unscrupulous attorneys”—should be achieved
regardless of the probability of discipline or a given state’s proclivity to
discipline lawyers.
52
C. Florida Retaliatory or Wrongful Discharge Law
Florida has long been recognized as an at-will employment state.
53
This
means that in Florida, “where the term of employment is discretionary with
either party or indefinite, then either party for any reason may terminate it at
any time and no action may be maintained for breach of the employment
48
Id. at *4.
49
Id.
50
Id. at *5.
51
Nikki A. Ott & Heather F. Newton, Current Development 2002-2003: A Current Look at Model
Rule 8.3: How is it Used and What are Courts Doing About it?, 16 GEO. J. LEGAL ETHICS 747, 758 (2003).
52
Skolnick v. Altheimer & Gray, 730 N.E.2d 4, 13 (Ill. 2000).
53
See Smith v. Piezo Tech. and Prof’l Adm’rs, 427 So. 2d 182, 184 (Fla. 1983); DeMarco v.
Publix Super Mkts., Inc., 384 So. 2d 1253, 1254 (Fla. 1980) (affirming and adopting reasoning of
DeMarco v. Publix Super Mkts., 360 So. 2d 134, 136 (Fla. Dist. Ct. App. 1978); Wynne v. Ludman Corp.,
79 So. 2d 690, 691 (Fla. 1955); Kimberly A. McCoy, Litigating Under the Florida Private Sector Whistle-
Blower’s Act: Plaintiff Protection and Good Faith, 52 U. MIAMI L. REV. 855, 859 (1998).
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1186 FIU Law Review [Vol. 13:1175
contract.”
54
In Hartley v. Ocean Reef Club, Inc., the Third District Court of
Appeal of Florida considered a claim for retaliatory discharge of an at-will
employee where the discharge on the part of the employer contravened the
public’s policy interests.
55
In its analysis of determining “what constitutes
public policy, or which of competing public policies should be given
precedence,” the court exercised judicial restraint and deferred the
determination to the legislature.
56
As such, the court concluded “that a
significant change in the law such as the creation of a cause of action for
retaliatory or wrongful discharge in this state is best left to the legislature.”
57
Therefore, the court held that “a common law cause of action for retaliatory
or wrongful discharge does not exist in Florida.”
58
In 1991, however, the Florida Legislature passed Sections 448.101–.105
of the Florida Statutes (commonly referred to as Florida’s Private Sector
Whistleblower Act) to protect whistleblowing private sector employees from
employer retaliation.
59
Section 448.102 prohibits private employers from
“tak[ing] any retaliatory personnel action against an employee because the
employee has” done one of the following:
(1) Disclosed, or threatened to disclose, to any appropriate
governmental agency, under oath, in writing, an activity,
54
DeMarco, 360 So. 2d at 136 (aff’d per curiam, DeMarco, 384 So. 2d at 1254); see also Hartley
v. Ocean Reef Club, Inc., 476 So. 2d 1327, 1330 (Fla. Dist. Ct. App. 1985) (“The established rule in
Florida is that when the term of employment is discretionary or indefinite, either party may terminate the
employment at any time for any reason or no reason without assuming any liability.”).
55
Hartley, 476 So. 2d at 1328 (The employee was fired after “refus[ing] to build or order his
workers to construct or plan any facilities without proper government approval.”). This section focuses on
Hartley because the public policy concern at issue in Hartley is comparable to the public’s policy interest
in ensuring the integrity and trustworthiness of the legal profession via a mandatory reporting requirement.
See Alex B. Long, Retaliatory Discharge and the Ethical Rules Governing Attorneys, 79 U. COLO. L. REV.
1043, 1063 (2008) (“[T]he public unquestionably has a substantial interest in insuring that attorneys
comply with both the letter and spirit of the ethical rules governing attorneys. . . . [T]he very existence
and enforcement of such rules contributes to public confidence in the judicial process.”).
56
Hartley, 476 So. 2d at 1329.
57
Id. The court reached this conclusion after acknowledging various jurisdictions’ approval of the
tort cause of action of retaliatory discharge in contravention of public policy. See id. at 1328–29.
58
Id. at 1330 (emphasis added); see also Smith v. Piezo Tech. and Prof’l Adm’rs, 427 So. 2d 182,
184 (Fla. 1983) (“Some jurisdictions have recognized exceptions to [the employment at-will] rule and one
exception takes the form of a common law tort for retaliatory discharge. Florida has not followed that
path.”).
59
See Richard D. Tuschman, III, Another Look at the Notice Requirement of the Florida Private
Sector Whistleblower’s Act, 71 FLA. B. J. 10, 43 (1997) (“The Florida private sector Whistleblower’s
Act . . . prohibits employers from taking an adverse employment action against an employee because the
employee has disclosed, threatened to disclose, objected to, or refused to participate in a violation of
law.”); McCoy, supra note 53, at 860; cf. Burden v. City of Opa Locka, No. 11-22018, 2012 U.S. Dist.
LEXIS 144903, at *26 (S.D. Fla. Oct. 7, 2012) (“Florida’s [public sector] Whistle-blower’s Act was
enacted with the intent to prevent retaliatory action against employees and persons who disclose
government wrongdoing to the appropriate officials.”) (citing WHISTLEBLOWER’S ACT, FLA. STAT. §
112.3187(2) (2017)).
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policy or practice of the employer that is in violation of a
law, rule, or regulation; (2) Provided information to, or
testified before, any appropriate governmental agency,
person, or entity conducting an investigation, hearing, or
inquiry into an alleged violation of a law, rule, or regulation
by the employer; or (3) Objected to, or refused to participate
in, any activity, policy, or practice of the employer which is
in violation of a law, rule, or regulation.
60
As a result, Section 448.102 seems to provide an express protection and
remedy for lawyers who have been retaliated against by their employing law
firms for reporting or threatening to report the professional misconduct of
other lawyers. However, as discussed further in Part III below, the Florida
Second District Court of Appeal in Snow v. Ruden, McClosky et al. has
narrowly interpreted the meaning of the word “rule” under the Definitions
section of the statute and deferred to the legislature to resolve the ironic
paradox existing between Rule 4-8.3(a) and the lack of protection from
employer retaliation for lawyers who adhere to their reporting obligation.
61
D. Florida At-Will Employment Contract Law and the Implied
Covenant of Good Faith and Fair Dealing
Under Florida contract law, the implied covenant of good faith and fair
dealing is built into every contract.
62
The covenant arises out of the implied
understanding that under a contractual agreement, each party mutually
promises to perform its obligations in good faith while expecting the other
party to similarly perform.
63
As such, the covenant functions to ensure that
the contracting parties’ reasonable commercial expectations are protected in
light of their agreement.
64
60
FLORIDA PRIVATE SECTOR WHISTLEBLOWER’S ACT, FLA. STAT. § 448.102 (2017). Subsection
(1) of Section 448.102 applies only when “the employee has, in writing, brought the activity, policy, or
practice to the attention of a supervisor or the employer and has afforded the employer a reasonable
opportunity to correct the activity, policy, or practice.”
61
See Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So. 2d 787 (Fla. Dist. Ct.
App. 2005).
62
See, e.g., Cty. of Brevard v. Miorelli Eng’g, Inc., 703 So. 2d 1049, 1050 (Fla. 1997) (“Virtually
every contract contains implied covenants and conditions. For example, every contract includes an implied
covenant that the parties will perform in good faith.”) (quoting Champagne-Webber, Inc. v. City of Fort
Lauderdale, 519 So. 2d 696, 697 (Fla. Dist. Ct. App. 1988); Ins. Concepts and Design, Inc. v. Healthplan
Servs., Inc., 785 So. 2d 1232, 1234 (Fla. Dist. Ct. App. 2001); Burger King Corp. v. Weaver, 169 F.3d
1310, 1315 (11th Cir. 1999).
63
See Cox v. CSX Intermodal Inc., 732 So. 2d 1092, 1097 (Fla. Dist. Ct. App. 1999) (quoting
First Nationwide Bank v. Fla. Software Servs., Inc., 770 F. Supp. 1537, 1543 (M.D. Fla. 1991)).
64
See, e.g., Meruelo v. Mark Andrew of the Palm Beaches, Ltd., 12 So. 3d 247, 251 (Fla. Dist.
Ct. App. 2009); Ins. Concepts and Design, Inc., 785 So. 2d at 1234; Cox, 732 So. 2d at 1097.
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However, beyond acknowledging that the implied covenant of good
faith and fair dealing exists in every contractual relationship, Florida courts
consistently adhere to restricting the reach of the implied covenant.
65
For
example, Florida courts maintain that the implied covenant of good faith and
fair dealing should not be invoked to vary or override the express terms of a
contract.
66
Additionally, as discussed further in Part III below, a cause of
action for breach of the implied covenant of good faith and fair dealing cannot
be maintained under Florida contract law unless an express term of the
contract has been breached.
67
III. A LACK OF PROTECTION FROM EMPLOYER RETALIATION
Given that Rule 4-8.3(a) of the Florida Rules of Professional Conduct
imposes such a strict, mandatory reporting requirement, it would seem to
follow that the law would protect lawyers who are retaliated against by their
employing law firms when they uphold their ethical duties to report
misconduct under mandatory reporting rules of professional conduct.
However, as the following examples illustrate, that is not always the case.
In Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., Plaintiff
Ann E. Snow appealed the dismissal of her two-count second amended
complaint against her former law firm.
68
She alleged (1) “a violation of
section 448.101(2)–(3), Florida Statutes (1999),” and (2) “that her
termination of employment was a breach of the implied covenant of good
faith in her at-will employment contract as well as a violation of public
policy.”
69
Snow, a member of the Florida Bar, had been hired as an associate
by the law firm Ruden, McClosky when she discovered that her supervisor
had improperly diverted fees to himself that were owed to the law firm.
70
Snow’s claim was that as an attorney licensed in Florida she was ethically
65
See, e.g., Burger King Corp., 169 F.3d at 1316 (“The Florida District Courts of Appeal have
held unequivocally that the rights conferred by the implied covenant of good faith and fair dealing are
limited.”); Snow, 896 So. 2d at 791; Ins. Concepts and Design, Inc., 785 So. 2d at 1234.
66
See, e.g., Flagship Resort Dev. Corp. v. Interval Int’l, Inc., 28 So. 3d 915, 924 (Fla. Dist. Ct.
App. 2010); Ins. Concepts and Design, Inc., 785 So. 2d at 1234; Cox, 732 So. 2d at 1098.
67
Ins. Concepts and Design, Inc., 785 So. 2d at 1234; Burger King Corp., 169 F.3d at 1316;
Hospital Corp. of America v. Fla. Med. Ctr., Inc., 710 So. 2d 573, 575 (Fla. Dist. Ct. App. 1998). The
Fifth District Court of Appeal of Florida has even gone to the extent of stating that a breach of the implied
covenant is not recognized in Florida where the plaintiff alleges a wrongful dismissal. Kelly v. Gill, 544
So. 2d 1162, 1164 (Fla. Dist. Ct. App. 1989).
68
Snow, 896 So. 2d at 789.
69
Id.
70
Id. at 789–90.
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required to report this illegal conduct under Rule 4-8.3 of the Florida Rules
of Professional Conduct.
71
In terms of Snow’s claim under the Florida Private Sector
Whistleblower Act, the Second District Court of Appeal of Florida focused
on the language “law, rule, or regulation” in Section 448.102(1) as defined in
Section 448.101(4).
72
Based on the definition of this language in the statute,
the court found that the rules governing the conduct of members of the
Florida Bar, despite being designated as “rules,” are not laws, rules, or
regulations under Section 448.101(4) because they “do not flow from either
a legislatively enacted statute, ordinance, or administrative rule. Neither do
they originate from any similar federal source. Rather, [they] are promulgated
by the Florida Supreme Court, the head of the judicial branch of state
government, under . . . authority given . . . by . . . the Florida Constitution.”
73
Even after making this finding, the court still went on to recognize that
the firm’s reaction “may have been inappropriate.”
74
Nonetheless, the court
refrained from deciding the case on any grounds other than the language
contained in the Definitions section of the statute and its interpretation.
75
However, the court did acknowledge the quandary it was dealing with and
evidently made it a point to mention that “[w]hether it is appropriate to afford
whistle-blower protection to an attorney in Ms. Snow’s circumstance is a
policy-making function left to the legislature.”
76
The court also imposed a restricted reach (as discussed in Part II above)
on the implied covenant of good faith built into Snow’s at-will employment
contract: “[t]here can be no cause of action for a breach of the implied
covenant ‘absent an allegation that an express term of the contract has been
breached.’”
77
“[T]he duty of good faith performance does not exist until a
plaintiff can establish a term of the contract the other party was obligated to
perform and did not.”
78
Similar situations to that which took place in Snow have also occurred
in other jurisdictions. In Jacobson v. Knepper & Moga, P.C., shortly after
71
Id.
72
Id. at 791.
73
Id.
74
Id.
75
Id.
76
Id.
77
Id. at 791–92 (quoting Ins. Concepts & Design, Inc. v. Healthplan Servs., Inc., 785 So. 2d 1232,
1234 (Fla. Dist. Ct. App. 2001).
78
Snow, 896 So. 2d at 792. After stating this point the court then cited a case from the United
States Court of Appeals for the Eighth Circuit not in conformity with its construction of the implied
covenant of good faith in Snow: Scott v. County of Ramsey, 180 F.3d 913, 918 (8th Cir. 1999) (“affirming
the giving of a jury instruction stating that employment decisions or actions can be made for ‘a
good reason, bad reason or no reason at all, but they cannot be based on intentional retaliation’”).
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1190 FIU Law Review [Vol. 13:1175
Plaintiff Alan P. Jacobson was hired as an associate with the law firm of
Knepper & Moga, P.C., he learned that the firm had been improperly filing
consumer debt collection actions.
79
After bringing the filing practice issue to
the attention of Knepper, a principal partner at the firm, Knepper advised
Jacobson that the matter would be corrected.
80
However, Jacobson would
subsequently realize on two separate occasions that the firm had not ceased
its improper filing practices at all.
81
In fact, after approaching Knepper with
his concerns for a second time, Jacobson was again informed that the issue
would be rectified.
82
And after raising the issue with Knepper for a third time,
Jacobson was terminated about two weeks later.
83
As such, Jacobson brought
suit against the firm “alleging that he had been wrongfully discharged in
retaliation for reporting the firm’s illegal practices to a principal partner of
the firm.”
84
After initially denying the firm’s motion to dismiss, the circuit court
certified the following question to the appellate court: whether an Illinois
attorney is prevented “from maintaining a cause of action for the Tort of
Retaliatory Discharge against his non-client law firm employer due to the
pre-eminence of the Rules of Professional Conduct?”
85
Reversing the
appellate court’s holding that Jacobson “was not precluded from maintaining
an action for retaliatory discharge against his employing firm,” the Illinois
Supreme Court first recognized the “limited and narrow” scope of retaliatory
discharge “as an exception to the general rule of at-will employment.”
86
The
court further described retaliatory discharge as an “action which seeks to
achieve a proper balance among the employer’s interest in operating a
business efficiently and profitably, the employee’s interest in earning a
livelihood, and society’s interest in seeing its public policies carried out.”
87
As such, for a plaintiff to maintain a retaliatory discharge action, he “must
demonstrate that (1) he was discharged in retaliation for his activities; and (2)
the discharge is in contravention of a clearly mandated public policy.”
88
Recognizing the lack of an exact definition of “clearly mandated public
policy,” the court noted that its case law allows retaliatory discharge actions
where (1) employees are terminated in response to the filing (or anticipated
79
Jacobson v. Knepper & Moga, P.C., 706 N.E.2d 491, 492 (Ill. 1998).
80
Id.
81
Id.
82
Id.
83
Id.
84
Id.
85
Id.
86
Id.
87
Id. at 493.
88
Id.
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filing) of Workers’ Compensation Act claims or (2) employees are
terminated “in retaliation for the reporting of illegal or improper conduct,” or
“whistle blowing.”
89
Turning its attention to the case before it, the court determined that the
public policy safeguarded by the collection statutes, “that of protecting the
debtor defendants’ property and ensuring them due process, is adequately
safeguarded without extending the tort of retaliatory discharge to employee
attorneys.”
90
This is because licensed attorneys have professional and ethical
obligations to report attorney misconduct, which ensures that the public
policy under the collection statutes (that of protecting debtor defendants’
property and ensuring due process) will be adequately safeguarded since
attorneys with knowledge of improper violations of the statutes are required
to report them.
91
Thus, before reversing the appellate court’s holding and
circuit court’s order denying the motion to dismiss, the court answered the
certified question in the affirmative and found that “an attorney licensed to
practice in the State of Illinois is prevented from maintaining a cause of action
for the tort of retaliatory discharge against his nonclient law firm employer
due to the preeminence of the Rules of Professional Conduct.”
92
At the same
time, the dissent captured the essence of the dilemma surrounding the court’s
opinion:
Thus, one class of employees in this state, attorneys, has
been stripped of a remedy which Illinois clearly affords to
all other employees in such “whistle-blowing” situations.
Today’s opinion serves as yet another reminder to the
attorneys in this state that, in certain circumstances, it is
economically more advantageous to keep quiet than to
follow the dictates of the Rules of Professional
Responsibility.
93
The Texas Supreme Court also confronted a slightly distinct, yet
comparable situation to the situations presented in Snow and Jacobson. In
Bohatch v. Butler & Binion, after becoming a partner with the law firm of
Butler & Binion, Attorney Colette Bohatch was given access to internal firm
billing reports.
94
Based on her review of the reports, Bohatch grew suspicious
that the office managing partner was overbilling for his time worked and
89
Id.
90
Id.
91
Id.
92
Id. at 494.
93
Id. (Freeman, J., dissenting).
94
Bohatch v. Butler & Binion, 977 S.W.2d 543, 544 (Tex. 1998).
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decided to raise the issue with another partner at the firm.
95
Following the
firm’s investigation, Bohatch was informed that her contentions had no basis
and that she should begin seeking other employment.
96
Eventually, the firm
gave Bohatch notice to vacate her office, Bohatch initiated an action against
the firm, and Bohatch was expelled from the partnership.
97
After a jury trial on Bohatch’s claims for breach of fiduciary duty and
breach of the duty of good faith and fair dealing, “the court [of appeals]
concluded that Bohatch could not recover for breach of fiduciary duty”
because “the firm’s only duty to Bohatch was not to expel her in bad faith.”
98
Subsequently, the Texas Supreme Court set out to consider “whether the
fiduciary relationship between and among partners creates an exception to
the at-will nature of partnerships; that is, in this case, whether it gives rise to
a duty not to expel a partner who reports suspected overbilling by another
partner.”
99
Although recognizing the force behind Bohatch’s position that
“permitting a law firm to retaliate against a partner who in good faith reports
suspected overbilling would discourage compliance with rules of
professional conduct and thereby hurt clients,” the court nonetheless rejected
Bohatch’s arguments in favor of maintaining the at-will nature of
partnerships and the importance of “personal confidence and trust” among
partners in a partnership (that may cease to exist in instances where partners
accuse other partners of overbilling, for example).
100
At the same time,
however, the court emphasized that “[its] refusal to create an exception to the
at-will nature of partnerships in no way obviate[d] the ethical duties of
lawyers,” noting the reality of dilemmas sometimes created by professional
ethical duties (such as situations involving a partner’s knowledge of another
partner’s overbilling practices).
101
95
Id.
96
Id.
97
Id. at 545.
98
Id. (“The court of appeals stated that ‘bad faith’ in this context means only that partners cannot
expel another partner for self-gain” and found no evidence in the present case that Bohatch was expelled
for self-gain.).
99
Id.
100
Id. at 546.
101
Id. at 547.
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IV. POTENTIAL SOLUTIONS TO THE LACK OF PROTECTION FROM
EMPLOYER RETALIATION
A. Other Jurisdictions’ Judicial Solutions
On the other hand, various jurisdictions have responded more favorably
to this issue. For example, in Wieder v. Skala, as a member of the New York
State Bar, Plaintiff Wieder sued his former employing law firm for
wrongfully discharging him as an associate “because of his insistence that
the firm comply with the governing disciplinary rules by reporting
professional misconduct allegedly committed by another associate.”
102
The
issue presented before the Court of Appeals of New York was “whether
plaintiff ha[d] stated a claim for relief either for breach of contract or for the
tort of wrongful discharge in violation of [New York’s] public policy.”
103
Wieder asserted that he had been wrongfully discharged because “of his
insistence that L.L.’s [(a fellow associate in the firm)] misconduct be reported
as required by DR 1-103 (A).”
104
After reviewing its employment-at-will jurisprudence, the court stated
that “[a]ssociates are, to be sure, employees of the firm but they remain
independent officers of the court responsible in a broader public sense for
their professional obligations.”
105
In fact, the court agreed with Wieder that
whenever an attorney is hired
as an associate to practice law with a firm there is implied an
understanding so fundamental to the relationship and
essential to its purpose as to require no expression: that both
the associate and the firm in conducting the practice will do
so in accordance with the ethical standards of the
profession.
106
The court also recognized the particular importance of a mandatory
reporting rule of professional conduct because of the unique nature of self-
regulation in the legal profession.
107
As such, “by insisting that plaintiff
disregard DR 1-103 (A) defendants were not only making it impossible for
plaintiff to fulfill his professional obligations but placing him in the position
102
Wieder v. Skala, 609 N.E.2d 105, 106 (N.Y. 1992).
103
Id.
104
Id. The language of DR 1-103 is parallel to that of Rule 4-8.3 of the Florida Rules of
Professional Conduct.
105
Id. at 108.
106
Id.
107
Id.
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of having to choose between continued employment and his own potential
suspension and disbarment.”
108
The court summarized the inherent dilemma:
Defendants, a firm of lawyers, hired plaintiff to practice law
and this objective was the only basis for the employment
relationship. Intrinsic to this relationship, of course, was the
unstated but essential compact that in conducting the firm’s
legal practice both plaintiff and the firm would do so in
compliance with the prevailing rules of conduct and ethical
standards of the profession. Insisting that as an associate in
their employ plaintiff must act unethically and in violation
of one of the primary professional rules amounted to nothing
less than a frustration of the only legitimate purpose of the
employment relationship.
109
Thus, the court concluded that Wieder stated a “valid claim for breach of
contract based on an implied-in-law obligation in his relationship with
defendants.”
110
At the same time, however, while recognizing Wieder’s persuasive
arguments and compelling circumstances in the case, the court refrained from
extending the tort of retaliatory discharge to the facts of the case to avoid
significantly altering any employment relationships that the legislature would
be better suited to handle.
111
Several years later, the New York Court of Appeals’ position in Wieder
was confirmed and adopted by the United States District Court for the Eastern
District of New York in Kelly v. Hunton & Williams. In Kelly, Plaintiff Peter
M. Kelly began working in the New York litigation department of H&W in
October 1990.
112
Around April or May of 1991, Kelly began suspecting Scott
Wolas, a partner/rainmaker of the firm under whom he worked, of billing
fraud.
113
Around June of 1992, Kelly told Mason, another partner at the firm
who, unbeknownst to Kelly, had been investing heavily through Wolas, about
Wolas’s improper billing of hours not actually worked.
114
In response, Mason
told Kelly “that things are not always what they seem, and that Wolas’s
108
Id. at 109.
109
Id. at 109–10.
110
Id. at 110.
111
Id.
112
Kelly v. Hunton & Williams, No. 97–CV–5631 (JG)., 1999 WL 408416, at *1 (E.D.N.Y. June
17, 1999). After his first year with the firm, Kelly received considerably favorable first-year performance
reviews along with the maximum pay raise for his class. The only major concession with his performance
ratings appeared to be his not having passed the bar examination yet.
113
Id. at *2. Wolas had billed for hours that he did not actually work and had also improperly
billed a number of fictitious hours on other specific instances.
114
Id.
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billing was not [Kelly’s] concern.”
115
Additionally, although Kelly’s work
and habits had not been substantially criticized before speaking with Mason,
after the conversation Kelly began to be reprimanded for tardiness, work
performance, failing to timely finalize his bar application, and billing fewer
hours than the other New York litigation partners (including Wolas).
116
Eventually, Kelly was asked to leave the firm and was given the option
to either “(a) be fired immediately, without severance pay or a favorable job
reference; or (b) announce his resignation and stay with the firm the next
several months, which would gain him a favorable reference.”
117
Given this
ultimatum, Kelly chose the coerced resignation because he had no other
employment or source of income readily available, would have a difficult
time obtaining another job without a favorable H&W reference, and would
have to disclose being fired on his bar application.
118
During this time, H&W
conducted an internal investigation and “hearing” process regarding Wolas’s
billing practices.
119
Ultimately finding that Wolas had not committed billing
fraud, the firm also decided that its “determination that fraud had not been
clearly established extinguished the obligation to report not only for the firm,
but for the associates as well” (even in light of the New York Court of
Appeals’ decision in Wieder v. Skala).
120
Several years after leaving H&W and receiving various job references
from the firm that were less than completely favorable, Kelly sued H&W
alleging that [it] breached implied contractual obligations
owed him when it terminated his employment with the firm.
Specifically, [he claimed] that H&W forced him to resign
and implicitly threatened to withhold a favorable job
reference, in order to impede and discourage him from
reporting . . . Wolas’s billing fraud to the Disciplinary
Committee.
121
In deciding H&W’s motion for summary judgment, the court recognized that
Kelly was an at-will employee and that under New York law could be
terminated at any time for any or no reason.
122
However, Kelly’s position was
that his termination fell within the exception established in Wieder v. Skala,
where the New York Court of Appeals held that an at-will associate can bring
115
Id.
116
Id. at *2–3.
117
Id. at *4.
118
Id.
119
Id. at *4–5.
120
Id.
121
Id. at *1, *5.
122
Id. at *6.
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1196 FIU Law Review [Vol. 13:1175
a cause of action “against his firm for breach of contract based on the firm’s
discharging him for his insistence that the firm comply with the Code of
Professional Responsibility by reporting to the Disciplinary Committee the
professional misconduct of another [lawyer].”
123
Over H&W’s argument that
Wieder was inapplicable because Kelly had not yet passed the bar (and so
was not subjected to attorney disciplinary rules), the court determined that
the Wieder cause of action does extend to “unadmitted law graduates working
as associates in law firms.”
124
The court reasoned that “it would be anomalous
to permit . . . [unadmitted] associates to ignore unethical behavior that
admitted associates are required to report” because of the close similarities
between the functions, treatment, responsibilities, evaluation, and payment
of unadmitted and admitted associates.
125
Thus, the court rejected the notion
that unadmitted associates cannot “face the dilemma of having to choose
between continued employment at a firm and compliance with lawyers’
disciplinary rules.”
126
As in Wieder, the court acknowledged (as applicable
to unadmitted associates) the same ethical responsibilities and duties
belonging to lawyers as members of the self-regulated legal profession and
the “implied-in-law obligation[s]” firms owe to their lawyers.
127
Lastly, the court further rejected H&W’s contentions that (1) an
associate must report or threaten to report to the disciplinary committee as a
prerequisite to avail himself of the Wieder cause of action, and (2) Wieder is
inapplicable to situations where the only retaliation for reporting the associate
would suffer is an unfavorable job reference (and not termination).
128
First,
the court explained that while an “associate’s stated intention to go to the
disciplinary authorities may be powerful circumstantial evidence of the
firm’s intent to punish and/or silence him . . . it is neither dispositive nor
necessary to the associate’s claim.”
129
Second, the court stated that retaliation
in the form of unfavorable job references “can effectively prevent” an
associate from securing future employment, which thus places him in a
situation comparable to the Wieder scenario “of having to choose between
continued employment and the consequences of failing to comply with
[mandatory reporting rules].”
130
Ultimately, the court’s final sentence of the opinion before the denial of
H&W’s summary judgment motion recognizes the possibility that “a rational
123
Id.
124
Id. at *6–7.
125
Id. at *7.
126
Id. at *8.
127
Id.
128
Id. at *8–9.
129
Id. at *9.
130
Id.
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jury could conclude that H&W fired plaintiff because he had insisted on
airing Wolas’s fraud, and implicitly conditioned its favorable references to
prospective future employers on plaintiff’s keeping quiet about that fraud.”
131
This powerful statement captures the harsh realities facing associates when
they are put in these “Catch-22” scenarios and must choose between the
losing options of either (a) remaining quiet in the face of ethical misconduct
and mandatory reporting requirements (while also risking disciplinary
actions against them), or (b) reporting or threatening to report misconduct in
the face of employment retaliation often without any available remedy
because of their at-will employment status.
The Supreme Court of California in General Dynamics Corp. v.
Superior Court also recognized a potential solution in the (slightly distinct,
yet comparable) scenario involving the termination of in-house counsel.
After working for General Dynamics Corporation for fourteen years,
climbing the company’s organizational ladder, and being considered for the
positions of division vice-president and general counsel, Attorney Andrew
Rose was terminated “abruptly and wrongfully.”
132
In support of its decision
to terminate Rose, General Dynamics’ position was that (1) Rose’s discharge
was based on the company’s loss of “confidence in Rose’s ability to represent
vigorously its interests” and (2) “Rose was subject to discharge at any time,
‘for any reason or for no reason,’” because of his employment as an in-house
attorney.
133
As a result, Rose initiated an action against General Dynamics
alleging (1) “that he was subject to discharge only for ‘good cause’” based
on General Dynamics’ conduct and other assurances, and (2) that General
Dynamics’ stated reasons for his termination were mere pretext with the
company’s actual reasons stemming from a retaliatory motive against
Rose.
134
As such, after the court of appeal’s ruling that “the complaint was
sufficient to survive a general demurrer as to both theories of relief,” the
supreme court granted review to consider “whether an attorney’s status as an
employee bars the pursuit of implied-in-fact contract and retaliatory
131
Id. at *10–11.
132
General Dynamics Corp. v. Superior Court., 876 P.2d 487, 490 (Cal. 1994).
133
Id. at 490–91.
134
Id. Rose’s complaint alleged:
[T]he “real” reasons motivating his firing had more to do with an attempt by company officials to
cover up widespread drug use among the General Dynamics workforce, a refusal to investigate the
mysterious “bugging” of the office of the company’s chief of security, and the displeasure of
company officials over certain legal advice Rose had given them, rather than any loss of confidence
in his legal ability or commitment to the company’s interests.
Id.
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1198 FIU Law Review [Vol. 13:1175
discharge tort causes of action against the employer that are commonly the
subject of suits by non-attorney employees who assert the same claims.”
135
First, the court concluded that in-house attorneys are permitted to pursue
“just cause” contractual claims in the same way as nonattorney employees
because these contract claims “are unlikely to implicate values central to the
attorney-client relationship.”
136
In terms of retaliatory discharge, the court
first recognized that this cause of action arises out of employers’ implied-in-
law duty “to conduct [their] affairs in compliance with public policy.”
137
Furthermore, the court acknowledged that the tort functions primarily to
serve the public’s policy interests as opposed to the interests of any particular
plaintiff-employee.
138
Given these overarching principles, the court thus
noted that when a plaintiff maintains a cause of action for retaliatory
discharge, he is provided a remedy for (1) the direct purpose of being
compensated for his loss of employment. and (2) the indirect purpose of
“vindicating the underlying fundamental public policy itself.”
139
The court then turned its attention to analyzing the dual allegiance
attorneys serve as a class of professionals.
140
“On the one hand, an attorney’s
highest duty is to the welfare and interests of the client. This obligation is
channeled, however, by a limiting and specifically professional
qualification: . . . [being] bound at all events not to transgress . . . ethical
norms that distinguish their work from that of the nonattorney.”
141
Given the
competing forces surrounding this “duality of allegiance,” the court observed
the possibility that situations may arise where an attorney is placed in “a
genuine moral dilemma.”
142
For example, in addition to the situations faced
by outside counsel employed by law firms—who actually “enjoy a measure
of professional distance and economic independence that usually serves to
lessen the pressure to bend or ignore professional norms”—in-house counsel
are especially susceptible to client/ethical dilemmas because of their
employment by profit-maximization focused corporations and their
“virtually complete dependence on the good will and confidence of a single
employer to provide livelihood and career success.”
143
Thus, taking these
considerations in hand with the fact that attorneys’ “professional work is by
definition affected with a public interest,” the court concluded that “in-house
135
Id. at 489, 491 (alteration in original).
136
Id. at 490.
137
Id. at 497.
138
Id.
139
Id.
140
Id. at 498.
141
Id.
142
Id.
143
Id.
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counsel, forced to choose between the demands of the employer and the
requirements of a professional code of ethics have, if anything, an even more
powerful claim to judicial protection than their nonprofessional
colleagues.”
144
The court also acknowledged the decisions of other courts that have
concluded that in-house counsel are prevented from bringing retaliatory
discharge actions before refusing to adopt their rationales.
145
In those cases,
the courts’ reasoning was two-fold: first finding that permitting retaliatory
discharge actions by in-house counsel could only harm clients’ overall
confidences in the confidential nature of matters communicated in the
attorney-client relationship, and secondly finding that allowing such actions,
which are based on serving fundamental public policy underpinnings, was
redundant since attorneys already have mandatory ethical duties to safeguard
the public’s policy interests, which therefore alleviates the need for any tort
remedy to persuade or encourage the attorney to protect such interests.
146
With these ideas in mind, the California Supreme Court explained that they
actually weigh in favor of permitting retaliatory discharge actions where an
employee is terminated for adhering to or refusing to violate ethical duties:
Granted the priest-like license to receive the most intimate
and damning disclosures of the client, granted the sanctity of
the professional privilege, granted the uniquely influential
position attorneys occupy in our society, it is precisely
because of that role that attorneys should be accorded a
retaliatory discharge remedy in those instances in which
mandatory ethical norms embodied in the Rules of
Professional Conduct collide with illegitimate demands of
the employer and the attorney insists on adhering to his or
her clear professional duty. It is, after all, the office of the
retaliatory discharge tort to vindicate fundamental public
policies by encouraging employees to act in ways that
advance them. By providing the employee with a remedy in
tort damages for resisting socially damaging organizational
conduct, the courts mitigate the otherwise considerable
144
Id. (explaining that “it is virtually certain that, without the prospect of limited judicial access,
in-house attorneys . . . confronted with the dilemma of choosing between adhering to professional ethical
norms and surrendering to the employer’s unethical demands will almost always find silence the better
part of valor. Declining to provide a limited remedy under defined circumstances will thus almost certainly
foster a degradation of in-house counsel’s professional stature.”) (alteration in original).
145
Id. at 500–01.
146
Id. at 500.
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economic and cultural pressures on the individual employee
to silently conform.
147
As further support for its position, the court also pointed to several cases
such as Parker v. M & T Chemicals, Inc. and Wieder v. Skala that have
likewise identified “the importance of professional ethical codes as a
counterweight to employer overreaching.”
148
Lastly, before affirming the
court of appeal’s judgment and remanding the case for further proceedings,
the court explained the qualified and limited nature of its holding and the
practicalities surrounding it:
In addition to retaliatory discharge claims founded on
allegations that an in-house attorney was terminated for
refusing to violate a mandatory ethical duty embodied in the
Rules of Professional Conduct, judicial access ought
logically extend to those limited circumstances in which in-
house counsel’s nonattorney colleagues would be permitted
to pursue a retaliatory discharge claim and governing
professional rules or statutes expressly remove the
requirement of attorney confidentiality.
149
As a final example of the potential solutions reached by the courts on
this issue, in Matzkin v. Delaney, Zemetis, Donahue, Durham & Noonan, PC,
Associate Attorney Bruce Matzkin was representing a client at trial “when he
learned that his opposing counsel had telephoned two witnesses and told
them that they did not have to testify in court, even though they had been
subpoenaed.”
150
While Matzkin intended to report his opposing counsel’s
conduct to the statewide grievance committee in accordance with mandatory
ethical reporting requirements, multiple partners at his law firm cautioned
him against initiating any grievance without the firm’s approval.
151
After
finishing the matter against his opposing counsel and being expressly
forbidden by his firm from filing a grievance in the firm’s name, Matzkin
told his firm that he would independently file a grievance and was
subsequently terminated thereafter.
152
As a result, Matzkin initiated a
wrongful discharge action against his firm alleging that he was terminated to
147
Id. at 501 (alteration in original).
148
Id. at 501–02 (citing Parker v. M & T Chems., Inc., 566 A.2d 215 (N.J. Super. Ct. App. Div.
1989)).
149
Id. at 502–05 (alteration in original).
150
Matzkin v. Delaney, Zemetis, Donahue, Durham & Noonan, PC, No. CV0440002885, 2005
WL 2009277, at *1 (Conn. Super. Ct. July 29, 2005).
151
Id.
152
Id.
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be prevented from filing a grievance, and the firm responded by filing a
motion to strike.
153
In deciding the motion to strike, the court first recognized the inherent
focus on public policy surrounding the wrongful discharge cause of action,
which exists to provide a remedy in situations where an employee’s
“discharge involved impropriety derived from some important violation of
public policy.”
154
Accordingly, where a plaintiff employee claims he was
wrongfully discharged, he must allege whether “his discharge violated any
explicit statutory or constitutional provision . . . or . . . contravened any
judicially conceived notion of public policy.”
155
Analyzing this requirement, the court determined that “the Rules of
Professional Conduct are a judicially conceived public policy” and further
supported its finding in the following ways: (1) citing a federal district court
case from the District of Connecticut that concluded that the Connecticut
Supreme Court would acknowledge a violation of the Rules of Professional
Conduct as a “public policy violation . . . sufficient to support a wrongful
discharge cause of action;”
156
(2) noting that the Connecticut Supreme Court
“has found clear statements of public policy in the Rules of Professional
Conduct in other instances;” (3) citing the New York Court of Appeals’
Wieder v. Skala decision; and (4) citing language in the preamble to the Rules
of Professional Conduct indicating the Rules’ concern for the public’s policy
interests.
157
Along these lines, the court also rejected the firm’s argument
“that the preamble of the Rules . . . explicitly states the rules are not intended
to be a basis of civil liability” by explaining that while the firm’s position
accurately reflected the intent of the Rules, this does not necessarily bar the
Rules from “embody[ing] a public policy of sufficient clarity or consequence
to justify a claim for wrongful discharge against a lawyer’s employer.”
158
Ultimately, the court held that given the self-regulated nature of the legal
profession, “no lawyer’s employment should be conditioned upon turning a
blind eye to violations of the Rules which are applicable to all lawyers. To
allow this would compromise the autonomy of the profession.”
159
As such,
153
Id.
154
Id. at *2.
155
Id.
156
Id. (quoting Lewis v. Nationwide Mut. Ins. Co., No. 3:02CV512 (RNC), 2003 U.S. Dist.
LEXIS 5126, at *7 (D. Conn. Mar. 18, 2003)).
157
Id. at *2–3.
158
Id. at *4.
159
Id.
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the court found that the Rules of Professional Conduct are an important
public policy and denied the firm’s motion to strike.
160
B. Analysis of Judicial Solutions and Discussion of Other
Nonjudicial Solutions
As set forth above, Snow v. Ruden, McClosky et al., Florida’s at-will
employment doctrine, and the silence of the Florida Rules of Professional
Conduct currently exacerbate the existing tension between Rule 4-8.3(a)’s
mandatory reporting requirement and the lack of protection from employer
retaliation for lawyers who report or insist on reporting the misconduct of
other lawyers. However, through the application of the potential judicial and
nonjudicial solutions presented in this Comment, Florida lawyers will no
longer be “left out in the cold” when confronted with the ironic paradox of
reporting under Rule 4-8.3(a) and being retaliated against by law firm
employers for adhering to the mandatory reporting rule without any
protection.
First, like the courts in General Dynamics Corp. and Matzkin, Florida
courts should similarly recognize a tort cause of action for retaliatory or
wrongful discharge in contravention of public policy when an attorney is
retaliated against for adhering to the mandatory obligations imposed by Rule
4-8.3(a).
161
The Florida Rules of Professional Conduct undeniably “express
clear and specific public policy.”
162
Rather than simply serving as “mere
internal regulations of the profession,” the Florida Rules exist to “define the
minimal standards applicable to lawyers,” which serve the public’s interest
in the overall integrity of the legal profession.
163
As a result, the Florida Rules
“embody a public policy of sufficient clarity or consequence to justify a claim
for wrongful discharge against a lawyer’s employer.”
164
Accordingly, Florida
courts—like the courts in other jurisdictions—should finally progress
Florida’s at-will employment doctrine towards recognizing the tort of
retaliatory or wrongful discharge in situations where improper employer
retaliation negatively impacts significant public policy concerns, such as the
160
Id. The court also agreed with the position that a plaintiff employee does not have to take action
(such as actually reporting the misconduct) “to vindicate the important public policy.” Id.
161
See also Kirik, supra note 5, at 408 (“Private law firm attorneys wrongfully discharged for
refusing to violate their professional code of ethics should be allowed a cause of action for retaliatory
discharge. Courts should recognize a ‘public policy by professional code exception’ to the at-will
employment of an attorney-employee in private practice.”).
162
Id. (referring to the ABA Model Rules of Professional Responsibility).
163
Id. at 409.
164
Matzkin, 2005 WL 2009277, at *4.
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potential non-adherence to the mandatory reporting provision of the Florida
Rules of Professional Conduct.
165
Second, the Florida Legislature has ignored the conflict lingering before
it: a law firm’s unfettered ability to retaliate against at-will attorneys who
adhere to Rule 4-8.3(a) jeopardizes attorney adherence to the Florida Rules
of Professional Conduct and the public’s confidence in the legal
profession.
166
As such, given the public’s policy interest in lawyers’
adherence to the Florida Rules of Professional Conduct, the Florida courts’
unwillingness to recognize the common law cause of action for retaliatory or
wrongful discharge, and the Snow court’s direct call to the legislature to
determine whether whistleblower protection should be afforded to attorneys
like Plaintiff Snow,
167
the Florida Legislature should step in to resolve this
issue by redrafting the Definitions section of the Florida Private Sector
Whistleblower Act to include the Florida Rules of Professional Conduct into
the definition of “[l]aw, rule, or regulation.”
The Snow court’s holding provides the Florida Legislature with the
perfect platform to amend the Florida Private Sector Whistleblower Act to
resolve this issue. The legislature could declare that the Florida Rules of
Professional Conduct—rules adopted by a co-equal branch of government
(the Florida Supreme Court) acting pursuant to its constitutional authority to
regulate the legal profession
168
—are now included within the statute as
protected “rules” for which attorney adherence cannot be retaliated against
by employers without consequence. In this way, the legislature would resolve
the existing conundrum that is the lack of protection from employer
retaliation for following a mandatory rule of professional conduct.
Third, like the courts in Wieder and Kelly, Florida courts should allow
at-will attorneys to sue for breach of the implied covenant of good faith and
fair dealing when their law firm employers retaliate against them for adhering
to Rule 4-8.3(a). As stated in Wieder, when a law firm hires an attorney to
practice law, “there is implied an understanding so fundamental to the
relationship and essential to its purpose as to require no expression: that both
the associate and the firm in conducting the practice will do so in accordance
with the ethical standards of the profession.”
169
And as should further go
without saying, the fundamental purpose surrounding the relationship
165
Kirik, supra note 5, at 409 (“To deny an attorney-employee of a private law firm a remedy for
adhering to his professional ethics does not encourage respect for the law. It weeds out the honest
attorneys.”).
166
See Long, supra note 55, at 1065.
167
See Snow v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So. 2d 787, 791 (Fla.
Dist. Ct. App. 2005).
168
See Long, supra note 55, at 1082.
169
Wieder v. Skala, 609 N.E.2d 105, 108 (N.Y. 1992).
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between associate and law firm is non-waivable. Accordingly, the fact that
Florida attorneys cannot waive their mandatory reporting obligation clearly
contributes to the reality of being caught between adhering to Rule 4-8.3(a)
and facing employer retaliation without a remedy.
Additionally, the restrictive holding in Snow (and other Florida cases)
regarding the implied covenant of good faith and fair dealing is flawed. This
restriction, that an express provision of the contract must be breached before
the implied covenant applies, does not entirely make sense given that under
such circumstances, the plaintiff’s recovery will be based on the breach of
the express provision itself, thus making the implied covenant superfluous.
As such, to give actual force to the implied covenant, it needs to be applicable
in situations like Snow where the ethical practice of law is inherently built
into the at-will attorney’s employment relationship with an employing law
firm.
170
Therefore, it appears to be axiomatic that Florida at-will attorneys
should be able to sue for breach of the implied covenant of good faith and
fair dealing when their law firm employers retaliate against them for adhering
to Rule 4-8.3(a).
Fourth, the Florida Supreme Court should draft a new rule (or
alternatively include as a provision or comment under Rule 4-8.4,
Misconduct) in the Florida Rules of Professional Conduct proscribing
employer retaliation against an at-will attorney who adheres to Rule 4-
8.3(a).
171
The goal of the new rule or addition of a provision or comment
under Rule 4-8.4
172
would be the deterrence of employer retaliation via the
consequences of disciplinary action or suspension under the Florida Rules of
Professional Conduct.
173
Although this solution would not serve as an
affirmative remedy for at-will attorneys retaliated against by their employing
law firms, it would certainly resolve the Florida Rules of Professional
Conduct’s silence on the issue of employer retaliation against at-will
attorneys. Furthermore, with an express statement built into the Florida
Rules, it would seem to follow that the possibility of disciplinary action or
suspension would deter law firms and employing attorneys from retaliating
against an at-will attorney. As such, law firms would have to “think twice”
before taking adverse employment action against an at-will attorney just
because they can under the current state of the law.
170
See id.
171
See Richmond, supra note 5, at 1850–51.
172
See id. at 1846 (explaining that the parallel misconduct rule under the Model Rules of
Professional Responsibility, Rule 8.4, would be “broad enough to encompass conduct aimed at
discouraging or punishing associates who intend to or who actually honor the [Model] Rule 8.3(a)
reporting mandate.”).
173
See id. at 1851.
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V. CONCLUSION
The Preamble to the Florida Rules of Professional Conduct establishes
lawyers as “officers of the court” and recognizes the self-governing nature of
the legal profession. As such, in addition to requiring adherence to the rules,
the Florida Rules of Professional Conduct also endow all lawyers with the
responsibility of ensuring other lawyers’ adherence to the rules. This charge
of responsibility is directly stated in Rule 4-8.3(a), which explicitly requires
“[a] lawyer who knows that another lawyer has committed a violation of the
Rules of Professional Conduct that raises a substantial question as to that
lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects [to]
inform the appropriate professional authority.”
However, although Rule 4-8.3(a) requires lawyers to report such
misconduct, the Rules fail to provide any express protection for lawyers who
are retaliated against by employers because they report (or insist on
reporting) the misconduct of other lawyers. Furthermore, Florida courts do
not recognize the common law tort cause of action for retaliatory or wrongful
discharge; the Second District Court of Appeal of Florida has also held that
Florida lawyers are precluded from redress under Florida’s Private Sector
Whistleblower Act when they are retaliated against by an employer for
adhering to (or insisting on adherence to) Florida’s mandatory reporting
requirement; and Florida courts will not find a breach of the contractual
implied covenant of good faith and fair dealing (unless an express term of the
at-will employment contract has been breached) in situations where at-will
lawyers are similarly retaliated against.
As a result, for Rule 4-8.3(a) to have full force and reach its potential of
being an affirmative vehicle for self-regulation of the legal profession,
attorneys need to feel confident that they will have protection or a remedy if
they face retaliatory employment consequences for adhering to the
mandatory duty to report misconduct. However, given Florida’s current
stance on the issue, at-will attorneys are likely to find themselves hesitating
before confidently following their duty to report misconduct under Rule 4-
8.3(a). The result is an overall negative toll on the integrity of the legal
profession. Accordingly, Florida courts should, “[i]n exercising their
common law powers, . . . not kneel in blind obedience to . . . misguided
reliance on precedent. [T]hey [should] seek in every case a just resolution,
identifying those circumstances that lay claim to conscience, considered in
light of applicable principles of law.”
174
174
General Dynamics Corp. v. Superior Court, 876 P.2d 487, 494 (Cal. 1994) (alteration in
original).
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Thus, given these maxims and considering the tension between Rule 4-
8.3(a)’s mandatory reporting requirement and the lack of protection from
employer retaliation for lawyers who report or insist on reporting the
misconduct of other lawyers, (1) Florida courts should recognize in such
situations a tort cause of action for retaliatory or wrongful discharge in
contravention of public policy, (2) the Florida Legislature should redraft the
Definitions section of the Florida Private Sector Whistleblower Act to
include the Florida Rules of Professional Conduct into the definition of
“[l]aw, rule, or regulation,” (3) Florida courts should allow claims for breach
of the implied covenant of good faith and fair dealing with respect to at-will
lawyers’ employment contracts in such situations, or (4) the Florida Supreme
Court should draft a new rule (or alternatively include as a provision or
comment under Rule 4-8.4, Misconduct) in the Florida Rules of Professional
Conduct proscribing such employer retaliation.
