Opinion
No. CV 04 4000288-S
July 29, 2005
MEMORANDUM OF DECISION MOTION TO STRIKE #121
This action arises out of losses allegedly sustained by the plaintiff, Bruce Matzkin, as the result of his wrongful discharge by the defendant, Delaney, Zemetis, Donahue, Durham Noonan, P.C. The plaintiff alleges the following facts in the complaint. The plaintiff was employed as an associate at the defendant's law firm from May 15, 2001 until August 1, 2003, when the defendant terminated his employment.
In March 2003, the plaintiff was representing one of the defendant's clients at a 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. The plaintiff thought that opposing counsel's conduct constituted witness tampering and violated rule 8.3(a) of the Rules of Professional Conduct. Soon after, the plaintiff informed several of the defendant's partners of the incident and expressed his intention to report the opposing counsel's conduct to the statewide grievance committee.
Rule 8.3(a) provides: "[a] lawyer having knowledge 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 disciplinary authority. A lawyer may not condition settlement of a civil dispute involving allegations of improprieties on the part of a lawyer on an agreement that the subject misconduct not be reported to the appropriate disciplinary authority."
The partners informed him not to initiate a grievance without the defendant's approval. The plaintiff sent out a memorandum to all the members of the law firm in an effort to obtain the defendant's approval. After viewing that memorandum, several of the defendant's partners separately warned the plaintiff against filing the grievance. The plaintiff explained to them that he felt that it was his obligation to report the incident. The plaintiff did not file the grievance immediately because the underlying case was still pending, and he decided to wait until the case was resolved before proceeding with the grievance.
After the underlying matter was disposed of the plaintiff again raised the issue with the partners. At that time the partners expressly forbade him from filing a grievance under the defendant's name. Thereafter, the plaintiff told the defendant that he would file a grievance independently. On August 1, 2003, the defendant terminated the plaintiff's employment.
According to the plaintiff, the defendant fired him in order to prevent him from filing a grievance. The plaintiff has not filed a grievance.
On July 12, 2004, the plaintiff filed a one-count complaint against the defendant for wrongful discharge. On December 3, 2004 the defendant filed a motion to strike. On January 5, 2005, the plaintiff filed an objection to the defendant's motion.
On February 25, 2005, the defendant filed a reply to the plaintiff's objection. On March 11, 2005 the plaintiff filed a sur-reply. On April 20, 2005, the plaintiff filed a supplemental memorandum in objection to the defendant's motion to strike. On April 21, 2005, the defendant responded to the plaintiff's supplemental memorandum.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). Although "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged"; (internal quotation marks omitted) Fort Trumbull Conservancy, LLC v. Alves, supra, 498; "if facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., supra, 292.
The defendant moves to strike the plaintiff's complaint on two grounds: (1) the plaintiff has failed to allege that his wrongful discharge violated an important public policy; and (2) the plaintiff did not take any steps to vindicate the important public policy. The plaintiff counters that the mandates of the Rules of Professional Conduct constitute an important judicially conceived notion of public policy. In addition, the plaintiff argues that case law does not support the defendant's second argument because in Sheets v. Teddy's Frosted Foods, 179 Conn. 471, 427 A.2d 385 (1980), the Supreme Court clarifies the issue that the tort of wrongful discharge does not require that the employee actually report the conduct that he thought violated public policy.
"In Connecticut, an employer and employee have an at-will employment relationship in the absence of a contract to the contrary. Employment at will grants both parties the right to terminate the relationship for any reason, or no reason, at any time without fear of legal liability . . . [The Supreme Court] in Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), sanctioned a common-law cause of action for wrongful discharge in situations in which the reason for the discharge involved impropriety derived from some important violation of public policy . . . In doing so, [the court] recognized a public policy limitation on the traditional employment at-will doctrine in an effort to balance the competing interests of employers and employees . . . [The court] recognized the inherent vagueness of the concept of public policy and the difficulty encountered when attempting to define precisely the contours of the public policy exception. In evaluating claims, [a court must determine] whether the plaintiff has . . . alleged that his discharge violated any explicit statutory or constitutional provision . . . or whether he alleged that his dismissal contravened any judicially conceived notion of public policy." (Citations omitted; internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 697-99, 802 A.2d 731 (2002).
In a recent decision involving the sufficiency of a plaintiff's allegations in a claim for wrongful discharge under Connecticut law, the federal district court noted "whether the Rules of Conduct can provide a basis for a cause of action for wrongful discharge appears to be an open question in most jurisdictions, including Connecticut." Lewis v. Nationwide Mutual Insurance Co., United States District Court, Docket No. 3: 02 CV 5 12 (RNC) (D.Conn. March 18, 2003).
In Lewis, the plaintiff alleged that his employer pressured him to compromise his duty of loyalty to his client, in violation of Rule 1.8(f)(2). After considering the issue, the court concluded that "the Connecticut Supreme Court would recognize the public policy violation asserted here as sufficient to support a wrongful discharge cause of action." In addition, in this court's opinion the Rules of Professional Conduct are a judicially conceived public policy because "[s]ince October 1986, the conduct of attorneys has been regulated . . . by the Rules of Professional Conduct which were approved by the judges of the Superior Court and which superseded the Code of Professional Responsibility." Bergeron v. Mackler, 225 Conn. 391, 397, 623 A.2d 489 (1993).
Also, the Supreme Court has found clear statements of public policy in the Rules of Professional Conduct in other instances. See MedValUSA Health Programs, Inc., v. MemberWorks, Inc., 273 Conn. 634, 659-60, 872 A.2d 423 (2005) (stating "[s]tatutes have not been the exclusive source from which we have found clear statements of public policy. We also have looked to city charters and, on one occasion, to the Rules of Professional Conduct.")
Referring to Schoonmaker v. Cummings Lockwood of Connecticut, P.C., 252 Conn. 416, 747 A.2d 1017 (2000).
The New York Court of Appeals dealt with a similar issue in Wieder v. Skala, 80 N.Y.2d 628, 593 NYS.2d 752, 609 N.E.2d 105 (1992). In Wieder, the plaintiff, an associate at a law firm, claimed that he was wrongfully discharged because of his insistence that his firm comply with DR 1-103(A) of the Code of Professional Responsibility. The court decided not to follow other jurisdictions by adopting a wrongful discharge tort. Id., 634. Instead, the court found that the plaintiff had "stated a valid claim for breach of contract based on an implied-in-law contact obligation in his relationship with defendants." Id., 637. Specifically, the court reasoned that "[a]ssociates are . . . employees of the firm but they remain independent officers of the court responsible in a broader public sense for their professional obligations." Id., 635. The court stated that "[DR 1-103(A)] is critical to the unique function of self-regulation belonging to the legal profession . . . The reporting requirement is nothing less than essential to the survival of the profession." Id., 636. The court said "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 of having to choose between continued employment and his own potential suspension and disbarment." Id., 636-37.
DR 1-103(A) is similar to rule 8.3(a). DR 1-103(A) provides: "A lawyer possessing knowledge, not protected as a confidence or secret, of a violation of DR 1-103 that raises a substantial question as to another lawyer's honesty, trustworthiness or fitness in other respects as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation."
"A quasi [or implied in law] contract is not a contract, but an obligation which the law creates out of the circumstances present, even though a party did not assume the obligation . . . It is based on equitable principles to operate whenever justice requires compensation to be made . . ." (Internal quotation marks omitted.) Yale Diagnostic Radiology v. Estate of Harun Fountain, 267 Conn. 351, 359, 838 A.2d 179 (2004).
As the preamble of the Rules of Professional Conduct states, "[t]he legal profession is largely self-governing, [and therefore] . . . the legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every 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 which it serves."
The defendant argues that rule 8.3(a) only indirectly injures the general public, and thus, it does not reflect an important public policy. Nevertheless, the commentary to the Rules of Professional Conduct 8.3 agree states that "[w]hile allowing pledges of silence can expedite settlements and redress to individual victims, the public at large is not well served when lawyers can buy their way out of professional disciplinary action." (Emphasis added).
Also, the defendant argues that the preamble of the Rules of Conduct explicitly states the rules are not intended to be a basis of civil liability. "It is true that violation of a disciplinary rule, in itself, does not give rise to a cause of action against a lawyer. But it does not follow that the Rules nowhere embody a public policy of sufficient clarity or consequence to justify a claim for wrongful discharge against a lawyer's employer. The Rules have been approved and adopted by the judges of the Superior Court to regulate the professional conduct of members of the Bar. It would be surprising if the Supreme Court were to categorically reject them as a source of public policy in the employment context . . ." Lewis v. Nationwide Mutual Insurance, Co., supra, Docket No. 3:02 CV 512 (RNC).
Rule 8.3(a) supports the conclusion that a lawyer has the responsibility to aid the bar in assuring that the Rules of Professional Conduct are observed by other lawyers. As clearly stated in the Preamble to the Rules, "A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice." There is an expectation that lawyers will carry out their duty to ensure justice by adhering to the principles contained in the Rules. Failure to do so can result in serious disciplinary consequences for the lawyer, such as disbarment or a fine. In addition, lawyers are required to possess a detailed understanding of the Rules and therefore are generally considered to be in a better position than a non-lawyer to spot a violation of the Rules.
Because the legal profession is self-regulated and relies upon its members to police itself, 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. Therefore, this court finds that the plaintiff has sufficiently alleged that the Rules of Professional Conduct are an important public policy.
Moreover, the court agrees with the plaintiff that case law does not support the defendant's argument that a plaintiff must take action to vindicate the important public policy. In Sheets, the plaintiff alleged that he was wrongfully discharged from his employment after he insisted that his employer's products comply with portions of the Connecticut Uniform Food, Drug and Cosmetic Act, General Statutes § 19-222. Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 473. There was no indication in Sheets, that the plaintiff, before or after his discharge, informed or attempted to report the violations to the commissioner of consumer protection. Id., 482-83. The court upheld the plaintiff's claim even though it did not know if the plaintiff vindicated the public policy by reporting it to an appropriate authority. Accordingly, the court denies the defendant's motion to strike.
Chief Justice Cotter stated in his dissent that "[t]here is no indication that the plaintiff has either, before or after his discharge, informed or even attempted to inform the commissioner of consumer protection of violations the plaintiff claims to have [witnessed]." Sheets v. Teddy's Frosted Foods, Inc., supra, 179 Conn. 482-83.
Lopez, J.