Page 1 of 8 1 2 3 ... LastLast
Results 1 to 10 of 71
  1. #1
    Join Date
    Oct 2017
    Posts
    23

    Default Can a Company Sue an In-House Lawyer for Legal Malpractice

    My question involves labor and employment law for the state of: NY

    I have just taken over a nightmare of a situation. Our inhouse counsel left 4 months ago and I feel that she gave improper guidance on handling an internal issue that has blown up. It is my task now to recruit for a new attorney and undo her poor advice. Brief Backstory. Mid size firm in NY. We had a part-time general counsel in house. One of our lower level employees made an internal complaint about another employee. A male employee told a female employee that "she needs to learn her place and that she should only speak when spoken too. She was not at all pleased by these comments and made a heavy stink about it. She sent numerous emails to our general counsel complaining that were very hostile. General Counsel recommended that we terminate her but to classify it as a lay-off to avoid angering her further. General Counsel prepared a one paragraph memo that only stated that her position was being eliminated and to apply for unemployment. Well she collected full unemployment benefits for about 6 months and then just 2 weeks ago, files a lawsuit against us for discrimination on sex and retaliation.

    I interviewed today with a law firm but they want 50,000 retainer. They briefly mentioned laying a person off when you should really terminate them is the worst case scenerio. Are they calling our bluff and just trying to get us to fork over a huge retainer. If we are found to be liable can we sue our former general counsel for poor and false legal advice? thank you so much.

  2. #2
    Join Date
    Feb 2008
    Posts
    1,159

    Default Re: Problem Employee and Suing Inhouse Counsel for Improper Advice

    Definitely improper guidance... I would think about utilizing EEOC arbitration and trying to settle since I dont see a way to win. Because at this point she has a greatretaliation claim, and if you want a lawyer to fight it, you can contact another to see what they quote you. But I would expect it to be high since they to see it as a losing battle.

    Do you have EPLI or attorney malpractice insurance? That's how an employer protects themselves when they use in-house counsel... if so, contact them immediately.

    You might be able to file a complaint to the state bar -- you'd have to consult a local attorney to see if you could go after her personally but since she was an employee I kind of doubt it. Hopefully someone else will correct me if I am wrong.

    I do wonder why no one else saw this as wrong at the time- do you have an HR person or even a manager who has been trained on discrimination/retaliation? That might need to be part of your settlement.

  3. #3
    Join Date
    Oct 2017
    Posts
    23

    Default Re: Problem Employee and Suing Inhouse Counsel for Improper Advice

    This is where it gets worse. the way I understood it as I was not normally involved in hr practices was that the "general counsel" went to high school with the owner of the company and the HR director went out on leave and the attorney was handling some of these issues. i should have been more clear with the timelines. This started in January of 2016. She did file an eeoc complaint just a week shy of exhausting her unemployment benefits or so and we were placed in mediation but the attorney rejected mediation. On top of that our EPLI has flagged our claim for the lawsuit in state court to for further review of coverage because we failed to notify them of the EEOC proceeding in the beginning of the process.

    However, the former employee sent nasty emails to management about the incident and we included them to the EEOC to show this is why we ended her employment. and they dismissed the complaint and the 90 day time period to sue lapsed. But she filed suit 2 weeks ago in State Court not Federal. So I guess what I'm confused is if we have proof of her conduct and her employment was at will, we were just allowing her to be laid off as a courtesy. It would have been inhumane to fight her on the unemployment matter so we just said laid off to unemployment.. This is not an uncommon occurrance it happens all the time. Employer and Employee have disagreement, employer asks employee not to return to work and reports it to unemployment as a lay off as a courtesy so everyone can move on in peace.
    What is the problem with that. What am I missing. The attorney that I met with just said it makes it difficult not impossible to win.

  4. #4
    Join Date
    Mar 2013
    Posts
    17,612

    Default Re: Problem Employee and Suing Inhouse Counsel for Improper Advice

    Quote Quoting bestpractice
    View Post
    I was not normally involved in hr practices was that the "general counsel" went to high school with the owner of the company
    Well, if you don't have an ownership interest in the company I suggest you throw this back in the lap of the owner whose high school friend screwed him up and let him figure out what to do.

  5. #5
    Join Date
    Oct 2014
    Posts
    7,710

    Default Re: Problem Employee and Suing Inhouse Counsel for Improper Advice

    What federal and NY law say is that an employer may not discriminate against an employee on account of, among other things, the sex of the employee. It is also illegal to retaliate against an employee for exercising his/her rights to seek remedies for illegal discrimination in the work place. That includes retaliation against an employee for complaining to management about possible sexual discrimination or sexual harassment.

    If the employee complained in a way that was inappropriate and that would have gotten any employee fired had the communication been about something else that wasn’t protected (e.g. complaining about how the employee’s manager gives out work assignments or whatever) then that termination is legal because the termination was for the inappropriate form of communication, not because the employee made a complaint about possible sexual harassment. But there is obviously a perception problem in doing that. It can look like what is going on is an attempt to fire her because she complained about the potential harassment and that saying she was fired for the inappropriate communication is just a cover for that. A lot would depend on exactly what she said. For example, if she used a lot of profanity and abusive language most everyone would agree that’s inappropriate and the termination might hold up better.

    But absent something really clear, there is a significant risk here. Unless her response was something that pretty much everyone in the world would agree was highly inappropriate, the better course of action here was likely to simply counsel the female employee about the tone of her complaints and then deal with the male employee’s inappropriate comments to her. Here, from your description, it sounds like the female employee was the only one who paid for this and the male employee who made the inappropriate comment was not adversely affected in any way. That makes it look pretty bad to an outside observer; it may make it appear that the male employee’s position about a woman’s place in the company was supported by management. In this day in age, a company cannot ignore any kind of comments that suggest one sex or one race is better than another or should be treated differently than another.

    So the exact details matter. It might be a case that can be defended but you are gambling on how 6 or 12 jurors (or however many jurors NY uses for civil trials) will view the situation once all the evidence has been submitted. Even if it can be defended, that defense won’t be cheap. The retainer quote you received gives you a good idea of what it will likely cost, tens of thousands of dollars.

    Whether the in house lawyer may be sued for malpractice depends on whether she was giving legal advice to the company or acting in some non legal capacity in the firm (e.g. HR employee). The fact that she has a title of counsel and a license to practice law doesn’t automatically make everything she does at the company the practice of law. Your firm ought to consult a firm that practices extensively in legal malpractice cases for advice on a potential malpractice claim against that in house counsel.

  6. #6
    Join Date
    Oct 2017
    Posts
    23

    Default Re: Problem Employee and Suing Inhouse Counsel for Improper Advice

    Thank you so much. I guess it's hard to put trust in an attorney at this point. We have laid off people in the past and never had an issue so the way the attorney explained it was that it really only becomes an issue if the former employee pursues it and because we reported it as a layoff when the real underlying issue was her approach to the complaint that it makes everything look suspicious and that we would never get it dismissed on the documents alone. Does that make sense. He was trying to explain to me that employees don't automatically get a jury trial but since she complained about harassment and was laid off two weeks later it looks really bad despite what she said in those emails. when I read the emails there was no profanity but she used all caps and rambled about poor leadership and how she can't stop anyone from thinking that way about women but that mike needs to keep his sexist comments to himself and out of the workplace...you could tell by the emails she was super pissed and wouldn't let it go. Nothing would of made her happy. We all thought it was best if she moved on as she was unable to let it go. I do not have ownership interest but I've been assigned to assist the owner

  7. #7
    Join Date
    Feb 2008
    Posts
    1,159

    Default Re: Problem Employee and Suing Inhouse Counsel for Improper Advice

    Hindsight is 20/20, but a waiver and severance would have been a better way to go. Unfortunately the more details you post, the worse it gets. Because her behavior wasn't bad enough to just terminate directly, and you all pussyfooted around with a "layoff", it can prove even more pretext. "all caps, rambled, etc" and "super pissed" is not probably going to rise to a level that a normal employer would terminate for especially if no one spoke with her during the time emails were being sent. How many were there and what was the timeline of communication. If she was sending them and getting no response throughout the two weeks since the complain, then multiple emails would be almost expected.

    I have to agree that your company/owner should expect to be writing a large check. You can decide if it goes to her or to attorneys and then still possibly her after a verdict against the employer. I wish I had better news-- I have successfully fought two EEOC claims (one race, one gender) as an HR professional and have never suggest mediation/arbitration. And with your set of facts, I wouldn't be even trying to argue it.

    And you have said nothing about what the employer did to the male employee...investigation, warning, anything? Sounds like she felt her complaint was not being handled.

    Even so, this is almost a textbook case for retaliation for a protected complaint. The owner made a very bad choice when the HR person went on leave. Not all attorneys are familiar with employment law...

  8. #8
    Join Date
    Jan 2015
    Posts
    1,142

    Default Re: Problem Employee and Suing Inhouse Counsel for Improper Advice

    It was profoundly stupid of your company to not be "inhumane" and lay her off for lack of work and not just terminate her IF you felt there was a need to terminate her. It looks suspiciously like what it was, an effort to get rid of her by throwing her the bone of an uncontested lay off. Because in so doing you have pretty much squelched any argument that she was let go due to misconduct of any kind.

    Responsible and knowledgeable companies do not lay people off for "lack of work" or "position being eliminated" when they are embroiled in EEOC/discrimination complaints with them. Especially if no other positions were eliminated, and no one else lost their job at this time, there goes the argument that the need to downsize or do away with this position was due to any other factor than that the employee was a problem because of her complaints.

    You guys who arbitrarily decided "nothing would make her happy and all thought it best if she moved on as she was unable to let it go" were stupid. Now you can't really fix that. An attorney or even a good HR person such as you'd have in a mid sized company should have advised you that you were making a mistake. But you should've known this without having an attorney advise you. Now you want to retaliate against the attorney?

  9. #9
    Join Date
    Oct 2017
    Posts
    23

    Default Re: Problem Employee and Suing Inhouse Counsel for Improper Advice

    As an at will employer, we can terminate at any time for any reason. that is common knowledge. I see it happen all the time in all industries. We were trying to do her a favor by not contesting her unemployment. Most reasonable people will agree that contesting unemployimg often leads to a lawsuit... we are looking into terminating the male employee.... however now we feel stuck because he knows there's a suit and if we fire him then he will most likely file suit as well.

  10. #10
    Join Date
    Jul 2010
    Posts
    7,813

    Default Re: Problem Employee and Suing Inhouse Counsel for Improper Advice

    Quote Quoting bestpractice
    View Post
    As an at will employer, we can terminate at any time for any reason. that is common knowledge. I see it happen all the time in all industries. We were trying to do her a favor by not contesting her unemployment. Most reasonable people will agree that contesting unemployimg often leads to a lawsuit... we are looking into terminating the male employee.... however now we feel stuck because he knows there's a suit and if we fire him then he will most likely file suit as well.
    You can terminate her anytime so long as it is not a violation of the law, which a retaliatory dismissal is. Your company tried to cover themselves and now they are going to get caught with their shorts down.

    No, contesting unemployment doesn't often lead to a lawsuit or the courts would be overflowing with such suits.

    You are looking into terminating the male employee? It's been at least 6 months since you were put on notice about his alleged behavior. Did your company take any action at all contemporaneously to the complaint? Have there been any other incidents or other problems with his performance? It is going to look like, and let's face it is, you are firing him because of the suit.

    1. Sponsored Links
       

Page 1 of 8 1 2 3 ... LastLast

Similar Threads

  1. Legal Malpractice: Hiring a Legal Malpractice Lawyer
    By Roman in forum Malpractice Law
    Replies: 7
    Last Post: 10-19-2007, 05:38 PM
  2. Legal Malpractice: Refused to Pay Legal Bill, and Lawyer Won't Pay For Purchase From My Other Company
    By alauberth in forum Malpractice Law
    Replies: 2
    Last Post: 10-01-2007, 01:29 PM
  3. Legal Malpractice: Legal Malpractice or My Lawyer the (DA and Judge)
    By TommyBoy in forum Malpractice Law
    Replies: 11
    Last Post: 03-04-2007, 01:31 AM
  4. Legal Malpractice: Legal malpractice for lawyer's mistakes before the jury
    By dan197 in forum Malpractice Law
    Replies: 1
    Last Post: 09-19-2005, 06:23 PM
  5. Legal Malpractice: Finding a Legal Malpractice Lawyer
    By skot2uk2000 in forum Malpractice Law
    Replies: 1
    Last Post: 07-22-2005, 08:57 AM
 
 
Sponsored Links

Legal Help, Information and Resources