Nordling v. Northern States Power Co.

KALITOWSKI, Judge

(concurring in part, dissenting in part).

I agree with the trial court’s dismissal of appellant’s claims involving tortious interference with contract. However, I do not believe that appellant’s claim of wrongful discharge should have been dismissed as a matter of law. The general rule allowing a client to discharge its attorney without liability for breach of contract developed in the context of lawsuits between attorneys in private practice and their clients. See, e.g., Martin v. Camp, 219 N.Y. 170, 114 N.E. 46 (1916); Lawler v. Dunn, 145 Minn. 281, 176 N.W. 989 (1920); Meagher v. Kavli, 251 Minn. 477, 492-93, 88 N.W.2d 871, 882 (1958). I question applicability of the general rule to in-house counsel, especially on the present facts.

First, the situation of in-house counsel is simply not analogous to that of a private attorney. A private attorney works much like an independent contractor, generally having a diverse client base. A private attorney controls the hours he or she works, and the compensation and benefits he or she receives. Most importantly, a private attorney controls the focus and nature of his or her practice, and may decline to represent certain clients or to take particular types of cases. In-house counsel, on the other hand, is subject to control by his or her only “client,” the corporation. The corporation controls the hours in-house counsel works, the salary and benefits he or she receives and the focus and nature of in-house counsel’s practice. Further, in-house counsel may be subject to the corporation’s own disciplinary measures in addition to those of the Lawyers Professional Responsibility Board. Unlike a private attorney, in-house counsel, if discharged by the corporation, may be unable readily to secure new clients. The focus of in-house counsel’s work is much narrower than that of a private attorney. In-house counsel thus changes his or her marketability in reliance on continued employment with the corporation. The relationship of in-house counsel and corporation is dual in nature: the relationship is one of attorney-client as well as of employer-employee. Unlike the Herbster court, see Herbster v. North Am. Co. for Life & Health Ins., 150 Ill.App.3d 21, 103 Ill.Dec. 322, 501 N.E.2d 343 (1986), cert. denied, 114 Ill.2d 545, 108 Ill.Dec. 417, 508 N.E.2d 728; cert. denied, 484 U.S. 850, 108 S.Ct. 150, 98 L.Ed.2d 105 (1987), I do not believe the attorney-client relationship negates the enforceability of an employment contract.

*88Second, I do not believe, as the Herbster court did, that the confidential nature of the relationship between in-house counsel and its client-employer would necessarily be jeopardized by limitations on the corporation’s right to discharge in-house counsel. See Herbster, 150 Ill.App.3d at 27, 103 Ill. Dec.- at 325-26, 501 N.E.2d at 346-47. In the present case, a personal dispute between Nordling and his supervisor in the Law Department, rather than matters involving Nordling’s legal representation of NSP, appears to have led to his discharge. I question whether evidence produced at a trial in this action would be any more damaging to NSP than highly sensitive nonpriv-ileged information introduced in a wrongful discharge suit by a high-level employee who is not an attorney.

I believe Nordling has produced sufficient evidence that he was not an at-will employee to preclude summary judgment. See Pine River State Bank v. Mettille, 333 N.W.2d 622, 627 (Minn.1983) (employee handbook or disciplinary procedures may cause contractual modification of at-will employment). Therefore, I would reverse and remand this issue for trial.