Suspended Attorney's Effort to Evade New York's Employment at Will Doctrine Successfully Opposed by KM&M
On June 22, 2001, the New York Supreme Court, Dutchess County, granted the Firm's motion to dismiss a breach of contract action filed against our client by its former in-house immigration attorney. While plaintiff conceded that his employment was at will, he nonetheless argued that his discharge gave rise to a cognizable claim for breach of contract under the "Wieder doctrine," the exception to New York's employment at will doctrine announced in Wieder v. Skala, 80 N.Y.2d 628 (1992).
The plaintiff in Wieder alleged (and the court found) that, although he was employed at will as an associate attorney at a law firm, his discharge nonetheless constituted a breach of contract because he was wrongfully terminated for reporting the misconduct of another attorney at the firm.
In our case, the plaintiff claimed that he was discharged for refusing to file allegedly fraudulent visa applications on behalf of our client. We moved to dismiss the complaint on the basis of information we acquired following plaintiff's discharge: namely, that his license to practice law had been suspended throughout his employment with our client. Therefore, we argued (among other things) that the plaintiff could find no refuge from the employment at will doctrine under Wieder. The court agreed, concluding that, "[d]espite plaintiff's allegations that his employer requested that he engage in unethical conduct, at the time this situation arose, plaintiff had not been forthcoming with his employer and did not reveal that his license to practice law had been suspended. …. [T]he Court finds that this situation does not fall within the Wieder exception to the employment at will doctrine." Accordingly, the plaintiff's lawsuit against our client was dismissed by the Court.