Weiss v. Lonnquist, 153 Wn. App. 502 (2009) (view Court’s opinion)

In Weiss v. Lonnquist, the Plaintiff was an attorney associate employed by the Defendant.? As part of her employment, Weiss was requested to advocate for a client who had sued the employer for disability discrimination. After reviewing the client’s file, Weiss discovered a faxed message from the client indicating that she knew that her deposition testimony may have been untruthful. After consulting with an ethics experts, Weiss refused to continue working on the case.? Lonnquist took over the case and submitted the client’s allegedly false testimony in her case.

Approximately two weeks later Lonnquist gave Weiss 30 days notice of her termination from employment.? Lonnquist argued that Weiss was terminated from employment because she failed to generate sufficient revenue.? Weiss believed that a substantial factor in the decision to terminate was her employment was her refusal to violate the public policy reflected in the Rules of Professional Conduct including RPC 3.3, which mandates candor toward a tribunal.? Although Weiss considered a complaint with the WSBA, she did not do so, in part because it would not address wrongful termination.? Weiss brought suit alleging inter alia wrongful termination in violation of public policy.

The case went to trial on the wrongful termination theory and a claim of lost wages.? The jury found for Weiss and the Court entered judgment for damages in the amount of $36,465, and $128,386 in attorney fees.? Lonnquist appealed.? After the case was tried and appealed, the Washington Supreme Court decided Cudney v. ALSOCO, Inc., 172 Wn.2d 524, 259 P.3d 244 (2011).

The Court of Appeals concluded that “[t]he jeopardy element sets up a relatively high bar.”? In particular, Plaintiff must show “that other means of promoting the public policy are inadequate.”? “The question of whether adequate alternative means for promoting a public policy exist presents a question of law as long as ‘the inquiry is limited to examining existing laws to determine whether they provide adequate alternative means of promoting the public policy.'” Citing Cudney, 172 Wn.2d at 528-29, quoting Korslund, 156 Wn.2d at 182.? Relying upon Cudney, the Court concluded that the trial court erred by failing to grant summary judgment in Lonnquist’s favor.? The Court concluded as a matter of law that despite the lack of any remedy for Weiss, the disciplinary process provided by the WSBA was an adequate alternative remedy to foreclose the jeopardy element of the wrongful discharge claim: “The Supreme Court has repeatedly emphasized that it does not matter whether or not the alternative means of enforcing the public policy grants a particular aggrieved employee any private remedy.” (Emphasis original).? The Court explained that “[w]e might have a different case if Weiss had reported Lonnquist to the bar association and had been discharged for taking that action.”? The Court rejected Weiss’s argument that a report to the Bar Association would have required her to disclose confidential information in violation of RPC 1.6.

WELA filed an amicus curiae brief in support of a more expansive interpretation of the public policy tort.

View WELA’s brief