The Appellate Blog



Rules of Professional Conduct Aren't Clear Enough Directives To Give Rise to Whistleblower Claim

DeFoe v. American Family Insurance, WD8009 (Mo. Ct. App. W.D. May 30, 2017) found an allegedly overworked and overburdened former staff attorney at American Family Insurance suing the company for wrongful discharge. DeFoe's petition claimed he was wrongfully terminated for engaging in activity that is protected under the public-policy exception to the at-will doctrine. DeFoe believed that his heavy workload ran him and American Family afoul of Mo. R. Pro. Conduct 4-1.1 (which mandates that lawyers provide clients “competent” representation) and Rule 4-5.4(c) (which bars a lawyer from allowing others to direct the lawyer’s professional judgment in rendering legal services).


Finding that the rules DeFoe relied on where too vague to constitute clear public policy, the trial court dismissed his lawsuit for failure to state a claim. The Court of Appeals for the Western District affirmed.

Judge Mitchell, writing for a panel that included Judges Newton and Welsh, began by outlining the “wrongful discharge doctrine.” Employers generally can fire at-will employees for any (or no) reason without incurring liability. But, Judge Mitchel wrote, employees are protected from dismissal if they’re (1) refusing to violate the law or a well-established mandate of public policy; (2) reporting wrongdoing or unlawful conduct to superiors or public authorities; or (3) “acting in a manner public policy would encourage.” Hinting perhaps that the latter category is a questionable notion, the opinion took care to separate the first two categories, which were established by the Supreme Court of Missouri in Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 91 (Mo. banc 2010), from the third, which arose from a 2012 Opinion from the Eastern District of the Court of Appeals in Delaney v. Signature Health Care Found., 376 S.W.3d 55, 57 (Mo. Ct. App. E.D. 2012).

DeFoe had tried to cloak his conduct in the second and third categories, arguing that: “the number of cases to which he was assigned exceeded an amount that was reasonable and proper, and impacted the [sic] ability as an attorney to adequately represent the insureds’ interests.” The Court of Appeals rejected that contention.

The problem for the Court was that the rules DeFoe relied on do not clearly prohibit or mandate his purported conduct. After all, the narrow public-policy exceptions to the at-will-employment doctrine are only implicated by a “clear mandate of public policy.” To be sure, the Court noted, an oppressive workload could in theory result in less than competent counsel to the client. But whether and when that might occur boils down to a question of professional opinion or judgment, which by definition cannot amount to the violation of a clearly articulated public policy.

The headline from DeFoe, then, is that Rules 4-1.1 and 4-5.4(c) cannot be the bases for a wrongful-discharge claim arising from a workload that an at-will attorney alleges hinders the quality of service he or she can provide clients.

Practice Tip. DeFoe also reminds us that Missouri’s fact-pleading standard has real teeth. The petition must assert “ultimate facts, or allegations from which to infer those facts.” Conclusions may have their place in petitions but they do not alone suffice.

Yet it can be tough to tell whether an allegation is conclusory or factual. In editing or attacking a petition, a good rule of thumb is to ask whether the statements are conclusions the plaintiff will eventually be arguing that the jury or court should reach. If the truth of the statement at issue rests on the establishment of other facts, it is probably a conclusory assertion.

In DeFoe, for example, the Court noted that the plaintiff's central claim – that his “caseload compromised his ability to effectively and adequately represent his clients” – was conclusory. Why? Because judging whether DeFoe’s caseload compromised his ability to represent his clients requires knowing how many cases he had, what they were about, whether they were complex or simple, and DeFoe’s level of experience and abilities. The Court found none of those ultimate facts in the DeFoe's petition.