Document Type

Article

Publication Title

Georgia State University Law Review

Abstract

This Article criticizes the Herbster and Willy courts' decisions to create a special exception for employed attorneys. My purpose is not to review the wisdom of recognizing a claim for retaliatory discharge or the appropriate breadth of such a claim, except as these questions may bear on whether employed lawyers ought to be treated differently - afforded less protection - when a jurisdiction permits retaliatory discharge actions. What is it about the relationship between a lawyer and his or her employer that may lead a judge or legislature to treat lawyer employees differently? What, if any, special claims do employed lawyers have for protection against retaliatory discharge? Of what should these protections consist? Part I of this Article briefly summarizes the law of retaliatory discharge, including jurisdictional variations. Part II presents the Herbster and Willy courts' rationales for treating lawyers differently from other employees who bring retaliatory discharge claims. Part III reviews other situations in which the interests of an employed or retained lawyer are acknowledged as superior to the interests and secrets of a former client. Part IV critically examines the Willy and Herbster opinions. Part V discusses other reasons a court might have to decline to recognize a retaliatory discharge claim for employed or retained lawyers, although the jurisdiction accepts such claims from other employees. Part VI presents further reasons for treating this issue more seriously than Willy and Herbster did. Finally, Part VIl offers a different kind of protection for in-house counsel, one that recognizes a retaliatory discharge claim but only as part of a more comprehensive resolution.

First Page

1

Volume

5

Publication Date

1988

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