In-House Attorney Need not Complain Externally to file PIERCE Claim

Lee Braem

In Tartaglia v UBS Paine Webber (A-107/108-06) the NJ Supreme addressed the case of an in-house lawyer claiming wrongful termination and employment discrimination.  At the center of the wrongful termination claim was the lawyer's complaints about how her legal department handled conflicts of interest, allegedly in violation of the conflicts of interest rule RPC 1.7.  More specifically, the Court was asked to decide whether the lawyer had a common law retaliatory discharge claim based on the Court's prior ruling in Pierce v. Ortho Pharmaceuticals Corp., 84 N.J. 58 (1980).  The seminal issue was whether the lawyer, in order to prevail on the Pierce claim, had to have first provided actual notice to an outside agency about the allegedly wrongful conduct of her employer.   On the Pierce claim, the Court reversed the lower court and remended for further proceedings.  

Under Pierce, an employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy.  While the Appellete Court believed that a Pierce claim could only be supported if an employee made some actual external complaint, the Court here held that external complaint was unnecessary.  According to the Court, nothing in Pierce requires an actual or even threatened external complaint as an element of the cause of action.  Instead, the remedy requires a sufficient expression of that disagreement to support the conclusion that the resulting discharge violates the mandate of public policy and is wrongful.  

On remand, the lawyer must prove that the employer's behavior complained about actually violated RPC 1.7.  

The common law discharge claim under Pierce still exists, and is an alternative form of relief, after NJ's enactedment of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq.