Seeking Whistleblower Status Based on Ethics Violations May Leave You Blowin in the Wind

In a series of posts on handling unethical conduct by the attorney for whom you work, I’ve emphasized the advisability of reaching out to others rather than attempting to handle the situation on your own. While other paralegals and paralegal associations can be quite helpful, I’ve advised getting legal advice from an attorney outside of your firm (indeed, I’d shoot for attorneys that do not even deal with your firm on a regular basis.) One advantage of going to an attorney is that you are protected by the attorney/client privilege.

In those posts I’ve pointed out that there may be some protection in “Whistleblower statutes.” A recent post on ABAJournal.com</em>illustrates how nebulous that protection can be and how important it is to get competent, objective, outside advice. The story itself involves an attempt to use whistleblower status by an attorney, but the principle of the case would apply to paralegals as well:

A federal judge has dismissed a suit by an associate who claims he was fired from his personal injury law firm for refusing to participate in an unethical referral scheme.

An illegal discharge claim can’t be premised on a violation of legal ethics rules, according to the Dec. 29 opinion by Judge John Heyburn II of Louisville, Ky. The ABA/BNA Lawyers’ Manual on Professional Conduct summarizes the decision.

…Heyburn said the allegations did not support a claim of illegal discharge. Employees in Kentucky can be fired at will, and the state allows a public policy exception based only on constitutional or statutory provisions, he said.

Gadlage had said his firing violated the public policy against lawyer conflicts of interest expressed in Kentucky Supreme Court rules. But a public policy from a court rule is insufficient to support a wrongful discharge claim in Kentucky, Heyburn said.

“This is not a pretty business that Mr. Gadlage has seen and fought against in his own way,” Heyburn wrote. “Unfortunately, Kentucky does not afford him a legal remedy in these circumstances.”

While this may not be the last word on the topic, even in Kentucky, the analysis seems valid based on the law in several states I’ve reviewed.

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