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Bassford Remele is a full service litigation firm located in Minneapolis, Minnesota. Founded in 1882, the firm represents local, national and international clients in all areas of civil litigation and dispute resolution.
Case Law Update
Date: June 6, 2008 — Minneapolis, MN
During the week of June 6, 2008, the Minnesota appellate courts released an opinion on the following topic that may be of interest to our clients:
MINNESOTA WHISTLEBLOWER ACT – ACTION BROUGHT BY IN-HOUSE ATTORNEY
- An in-house attorney who is terminated from employment is not necessarily barred from pursuing a claim under the Minnesota Whistleblower Act.
- An in-house attorney does not engage in protected conduct under the Minnesota Whistleblower Act if the reported violation of law is made in fulfilling the attorney’s job duties.
After in-house attorney Kidwell sent an email message to employer Sybaritic’s top management regarding activities Kidwell thought were unlawful, Sybaritic terminated him. Kidwell sued under the Minnesota Whistleblower Act. The district court ordered judgment in favor of Kidwell. The Court of Appeals reversed, holding that while there is no per se bar under the Minnesota Whistleblower Act to a claim by an in-house attorney, here, Kidwell did not make a good-faith report of a violation of law because the report concerned matters that were within his duties as an in-house attorney.
On the first point, the Court noted prior case law holding that a former attorney-employee is barred from bringing employment-related claims against a former client-employer but observed that this attorney-client defense has been weakened by subsequent case law. Also, the Court cited Minn. R. Prof. Conduct 1.6(b), which allows a lawyer to reveal information relating to representation if “the lawyer reasonably believes the disclosure is necessary to establish a claim…” Accordingly, the Court held that an in-house attorney is not per se barred from bringing a claim against an employer under the Minnesota Whistleblower Act.
However, the Court held that Kidwell had not engaged in protected activity under the Minnesota Whistleblower Act. An employee does not engage in protected conduct if the employee’s report is in fulfillment of his job duties. When an employee performs his job duties, he is acting to promote his employer’s interests, not for the purpose of exposing illegality. Here, Kidwell wrote the email to Sybaritic’s top management in order to fulfill the duties of his position as in-house counsel for several reasons: under his employment agreement, his duties included decisions as to corporate legal matters; the concerns were matters Kidwell had previously advised the company about; and Kidwell’s choice of words within the email specifically stated that it was his duty to Sybaritic to write the email. Therefore, the Court held, since Kidwell’s email was sent in fulfillment of his duties as an in-house attorney, it did not constitute protected conduct under the Minnesota Whistleblower Act.
The dissent agreed that an in-house attorney is not per se barred from bringing a whistleblower claim but disagreed on the second point, noting that there is no limitation in the text of the Whistleblower Act that in-house attorney has no protection when it is his duty to provide legal advice. The dissent also noted that since an in-house attorney encounters the same pressures as an ordinary employee and is economically tied to a single employer, public policy supports applying the Act to encourage reporting of suspected illegal activity in this context.
Kidwell v. Sybaritic, A07-0584, A07-0788 (Minn. Ct. App. 06/03/08).
Editorial Staff |
C. Lundberg, C. Morris, K. Putney, R.A. Williams, |
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Nicole A. Delaney |