August 2005
Featured Disciplinary Case
Topic
While a disciplinary rule violation does not generally give rise to a cause of action,
it does not follow that the ethics rules do not embody a public policy of sufficient clarity or consequence to justify a claim for wrongful discharge against a lawyer's employer.
Summary
Bruce Matzkin v. Delaney, Zemetis, Donohue, Durham, & Noonan, P.C., 2005 WL 2009277, No. CV 04 4000288-S (Superior Court Judicial District of New Haven, Connecticut, July 29, 2005). This is not a disciplinary case. Rather it is a decision on a defendant’s motion to strike the plaintiff’s complaint in a wrongful discharge action. Bruce Matkin worked as an associate at the defendant law firm for a little over two years. Five months before his departure from the firm, he learned that opposing counsel in a case had telephoned two witnesses and told them that they did not have to testify in court even though they had received subpoenas. Matkin thought that the lawyer’s actions were unethical and he believed that he had a duty to report the errant practitioner to Connecticut disciplinary authorities. At all times, Rule 8.3(a) of the Rules of Professional Conduct provided:
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.
Matkin informed his partners that he intended to lodge a grievance with the statewide grievance committee. The partners informed him not to initiate such a grievance without their approval. He wrote a memorandum to all members of the firm in order to obtain such approval. The partners warned him not to pursue the matter. Matkin allegedly waited for the underlying litigation to be resolved. Once that case concluded, he again brought up the subject of a grievance. The partners expressly forbade him from filing a grievance under the firm name. Later, he informed the firm that he would file a grievance independently. Soon thereafter, he was fired. Almost a year after his dismissal, he filed a one-count complaint alleging wrongful discharge. The defendant moved to strike the complaint on two grounds: First, Matkin failed to allege that his wrongful discharge violated an important public policy and second, Matkin never took any steps to vindicate the important public policy. Interestingly, Matkin had never lodged the grievance. In response, Matkin argued that the mandates of the ethics rules constituted an important judicially conceived notion of public policy. Further, he argued that the tort of wrongful discharge does not require that the employee actually report the conduct that he thought violated public policy. In deciding the issue and ruling that the complaint articulated a cause of action, the trial court noted, in this case of first impression in Connecticut, that the Rules of Professional Conduct are an important public policy and that case law does support the firm’s argument that a plaintiff must take action to vindicate an important public policy. The trial court held that, while a violation of a disciplinary rule does not, in itself, give rise to a cause of action against a defendant-lawyer, it does not follow that the ethics rules do not embody a public policy of sufficient clarity or consequence to justify a claim for wrongful discharge against a lawyer's employer. Further, the trial court noted:
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…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…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
In so ruling, Connecticut joins New York in recognizing the tort of wrongful discharge in a similar law firm context.
But see, Jacobson v. Knepper & Moga, P.C., 185 Ill.2d 372, 706 N.E.2d 491 (1998).
As an aside, Matzkin apparently now practices in Branford, Connecticut and markets himself in Yellow Page advertising as being, “Fair, Honest and Good.” He is also available to represent prospective clients in wrongful termination suits. http://matzkinbrucelawoffic8884352911.worldpages-ads.com
