Kidwell v. Sybaritic, Inc.

ANDERSON, PAUL H., Justice

(dissenting).

I respectfully dissent. The plurality has adopted a legal rule that I am unable to reconcile with the language of the Minnesota Whistleblower Act, Minn.Stat. § 181.932 (2008). The plurality’s legal rule imposes an artificial evidentiary hurdle on proving mental state and fails to give proper deference to the jury’s determination of subjective intent. As a consequence, the plurality unnecessarily complicates whis-tleblower law in a manner unsupported by the statutory language. Because I find no job duties exception within the language of the Minnesota Whistleblower Act and conclude that the evidence was sufficient to support the jury’s finding that Brian Kid-well acted in good faith, I would reverse the court of appeals and affirm the district court.

In his concurrence, the Chief Justice reaches the same result as the plurality— he would affirm the court of appeals by overturning the jury verdict in the district court — but he does so on different grounds. Because I disagree with the analysis articulated by the concurrence, I will address the concurrence after first addressing the plurality opinion.

The Plurality:

Brian Kidwell brought a whistleblower claim under Minn.Stat. § 181.932 against Sybaritic, Inc., claiming that he was fired after sending an email that accused Sybaritic’s President, Steve Daffer, of intentionally withholding discovery in litigation the company was involved in as a defendant. At the time he sent the email, Kidwell was serving as Sybaritic’s in-house counsel, and his job duties included overseeing the company’s litigation. On October 3, 2006, a Hennepin County jury returned a verdict in favor of Kidwell. After hearing 5 days of testimony, the jury specifically found that Kidwell had made a good faith report and that Sybaritic fired him as a result of that report. Following the jury verdict, Sybaritic made a motion for a Judgment as a Matter of Law (JMOL), which motion the district court denied.

*235On appeal, Sybaritic argues that the district court erred in denying its JMOL motion. Sybaritic argues that Kidwell’s disclosure was not a protected report under the Whistleblower Act because his disclosure (a) fell within his job duties, and/or (b) violated the attorney-client relationship.

The plurality looks to the plain language of the Whistleblower Act and concludes that nothing in the plain language of the act creates a blanket job duties exclusion to the act. Supra at 13. I agree with the plurality that the Whistleblower Act contains no plain language that would prevent a disclosure made in the course of job duties from being protected. The Whistle-blower Act states that an employer shall not discharge an employee because the employee “in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer.” Minn.Stat. § 181.932 subd. 1(1). We have previously interpreted what the legislature meant by a report made in “good faith.” In Obst v. Microtron, Inc., 614 N.W.2d 196, 202 (Minn.2000), we stated that in determining whether a report was made in good faith it is necessary to look beyond the content of the report and consider the employee’s purpose in making the report. To be made in good faith, a report must be made “for the purpose of blowing the whistle, i.e. to expose an illegality.” Id.1 Like the plurality, I conclude that if a report is made in good faith, it meets the requirements of the statute. I also agree that “an examination of the employee’s job duties could be helpful in answering” the question of whether a specific report was made in good faith. Supra at 14. But I disagree with the plurality’s reliance on Huffman v. Office of Personnel Mgm't, 263 F.3d 1341 (Fed.Cir.2001), and as a result disagree with the standard the plurality would adopt from that case.

After acknowledging that an employee’s job duties might illuminate the issue of good faith, the plurality cites Huffman for the proposition that an employee who “has, as part of his normal duties, been assigned the task of investigating and reporting wrongdoing by government employees and, in fact, reports that wrongdoing through normal channels” has not engaged in conduct under the federal whistleblower protection act. Supra at 16 (citing Huffman, 263 F.3d at 1352). The plurality then concludes that “[t]he same is true under our whistleblower statute.” Id.

But the plurality has not demonstrated why the conclusion reached in Huffman applies based on the language of Minnesota’s Whistleblower Act. In Huffman, the Federal Circuit Court of Appeals found the language of the federal Whistleblower Protection Act (WPA) to be “ambiguous as to whether normal duties reports are covered.” Huffman, 263 F.3d at 1352. As a result, the federal court looked to the “core purposes” and the general framework of the WPA and concluded that an employee was barred from asserting a whistleblower claim where a duty to make the report fell within the scope of the employee’s job and the report was made through normal channels. Id. at 1352-53.

*236Here, the plurality has not found Minnesota’s statutory language ambiguous. The plurality also has not compared the core purposes and framework of the Minnesota Whistleblower Act to the federal WPA to determine whether the same rationale applies. In comparing the two statutes, some differences between the acts become readily apparent. For example, the federal WPA is a statute pertaining only to a limited group of employees — certain federal employees, see 5 U.S.C. § 1221(a) (2006) (citing 5 U.S.C. § 2302 (2008)), whereas the Minnesota Whistleblower Act is a law of general applicability that applies to nearly every employee in the state, see Minn.Stat. § 181.931, subds. 2 & 3 (2008) (defining an employee as a person who performs services for hire for an employer and an employer as any person having one or more employees, but excluding independent contractors from the definition of employees). Further, the language of the two statutes is not identical. Under the federal WPA, a protected report is one that essentially concerns,

(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences—
(i) a violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety....

5 U.S.C. § 2302(b)(8); see also 5 U.S.C. § 1221(e). The Minnesota Whistleblower Act prohibits retaliation when,

[An] employee, or a person acting on behalf of an employee, in good faith, reports a violation or suspected violation of any federal or state law or rule adopted pursuant to law to an employer or to any governmental body or law enforcement official.

Minn.Stat. § 181.932 subd. 1(1) (2008). The language in the two statutes contains differences that the plurality has not addressed or considered before applying the Huffman test to this case. It is unclear to me why the plurality adopts the Huffman approach, especially when the plurality does so without comparing the language of the applicable statutes or looking at legislative history.

The plurality also fails to adequately address approaches taken by other state and federal courts, which have adopted a variety of responses to the question of a job duties exception. Several states have addressed the issue before us. For example, a Texas appellate court dismissed the logic of Huffman based largely on the absence of legislative history similar to the legislative history relied on by federal court in Huffman. Rogers v. City of Fort Worth, 89 S.W.3d 265, 276 (Tex.App.2002). The Texas court relied on the language of the state statute, as well as prior Texas precedent, in holding that an employee could recover under Texas’s whistleblower provision when making a report within the scope of the employee’s job duties. id.2 *237On the other hand, an Ohio appellate court considered the Huffman approach, as well as the Minnesota Court of Appeals’ opinion in this case, before concluding that a supervisory employee did not make a protected report because she was performing her job. Haddox v. Ohio Att’y Gen., No. 07AP-857, 2008 WL 3918077, at *9-10 (Ohio Ct.App., Aug. 26, 2008).

Numerous federal laws contain whistle-blower provisions, and federal courts treat reports made in the scope of job duties differently depending on the statutory scheme in which the whistleblower provision is found. Por example, the Sixth Circuit has held that under the whistle-blower provision in the Federal Claims Act, a job duty report could be a protected report if the employee proved the employer was put on notice that the employee was engaging in protected activity. Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 567-68 (6th Cir.2003) (noting that the employee “ ‘took no steps to put defendants on notice’ ” that the employee was acting to further a FCA action) (quoting United States ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir.1996)). That same court has applied the Huffman approach to the whistleblower provisions in the Clean Air Act, Solid Waste Disposal Act, and the Federal Water Pollution Control Act. Sassé v. U.S. Dep’t of Labor, 409 F.3d 773, 780 (6th Cir.2005).

The Energy Reorganization Act’s whis-tleblower provision has been held to apply to internal safety reports made by quality control inspectors. See Mackowiak v. Univ. Nuclear Sys., 735 F.2d 1159, 1162-63 (9th Cir.1984). Likewise, the whistle-blower protection provided in the Mine Safety and Health Act is triggered by internal safety complaints. Donovan v. Stafford Constr. Co., 732 F.2d 954, 960 (D.C.Cir.1984) (citing Phillips v. Interior Bd. of Mine Operations Appeals, 500 F.2d 772, 783 (D.C.Cir.1974)). Most relevant to Kidwell’s case, administrative decisions have also held that an in-house attorney does not need to go outside her normal job duties to be protected from retaliation for reporting an illegality under the Sarbanes-Oxley Act. E.g., In re Leznik v. Nektar Therapeutics, Inc., No.2006-SOX-00093, 2007 WL 5596626, at *5-6 (U.S. Dept. of Labor, Nov. 16, 2007).

In Minnesota, we must consider the specific language used in the Minnesota Whis-tleblower Act to determine how job duties affect an employee’s report of an illegality. Looking at the specific language of our whistleblower 'statute, and at the case law interpreting that statute, I find no support for the plurality’s adoption of the Huffman test. Moreover, I fail to see the wisdom or necessity for the rule advocated for by the plurality. In applying Huffman, the plurality concludes that an employee acting within the scope of his job duties can only in a very rare case possess the subjective purpose of exposing an illegality unless he presents evidence that he reported the illegality through channels other than the normal channels. I have two primary objections to this conclusion. First, I fail to see why the scope an employee’s job duties or the particular channel through which the employee makes his report is entirely dispositive of the employee’s subjective intent. While such evidence is certainly relevant, I do not understand how the plurality concludes that this information is, alone, dispositive of good faith. Second, I am concerned by the plurality’s willingness to wade into an issue of fact — subjective intent — traditionally and wisely reserved for the jury.

*238The plurality appears to indicate that only in a very rare case would an employee who is responsible for reporting illegal conduct and who reports such conduct through normal channels, be able to prove that the report was made for the purpose of exposing an illegality. I disagree. Rather, an employee could make a report that is within the scope of his job duties, and could report to supervisors to whom the employee typically reports, yet nonetheless the nature of the report may indicate the employee had a'subjective intent to “blow the whistle.”

For example, it is conceivable that an employee responsible for company compliance, with a job duty to report violations of law to a company board, could discover an illegality that is perpetuated by a highly powerful member of the company and is profitable for the company. That employee may face a decision to: (a) make the obligated job duty report and face a high risk of termination, or (b) turn a blind eye to the illegality, not make the obligated report, and, as a result, keep his job. Obst requires a plaintiff asserting a whistle-blower claim to prove that any report was made in good faith, i.e. for the purpose of exposing an illegality. 614 N.W.2d at 202. I cannot conclude, as a matter of law, that an employee who chose the first option in the above scenario could never have the subjective intent required by Obst.3 It is entirely plausible that a desire to “blow the whistle” or to expose an illegality may be the very fact that drives the employee to face the risk of termination and make the report. Moreover, encouraging employees in difficult situations to make the report — to expose the illegality rather than cover it up — is precisely the purpose of the Whistleblower Act.

The plurality’s rule imposes an arbitrary evidentiary hurdle on proving mental state — that the channel through which the report is made is somehow dispositive of the employee’s mental state. The rule is logically analogous to ruling that a jury cannot reasonably ever find that a murder suspect acted with premeditation unless the State presented evidence that the suspect drew a map to the victim’s house. Just as a map is evidence of but not dis-positive of a murderer’s mental state, so, too, here, the particular channel chosen by Kidwell to blow the whistle is not disposi-tive of his mental state.

The plurality also encroaches on the well-established role of the jury in determining subjective intent. When a party bears the burden of proving the mental state of himself or another person, he is free to do so using any relevant, competent, admissible evidence — direct or circumstantial. When a jury, based on a preponderance of the evidence, concludes that a person acted with a given subjective mental state — as the jury did here — the jury determination is entitled to deference of the highest degree.

Mens rea is the particular province of the jury because it is elusive as well as *239subjective, and all but invariably is determined by drawing from objective facts — which may be inconsistent, fraught with ambiguity or both — inferences about a subjective matter that are informed by human experience.

People v. Fernandez, 64 A.D.3d 307, 879 N.Y.S.2d 74 (N.Y.App.Div.2009); see also State v. Chambers, 507 N.W.2d 237, 239 (Minn.1993) (“ ‘Though a subjective state of mind may at times be difficult to determine, there is no mystery to mens rea, the latinism notwithstanding. Jurors in their every day lives constantly make judgments on whether the conduct of others was intentional or accidental, premeditated or not.... [T]he factfinder can do this too; indeed, it is the factfinder’s job, to do it....’”) (quoting State v. Provost, 490 N.W.2d 93, 101-02 (Minn.1992)). By establishing a legal rule that tethers a whis-tleblower’s subjective mental state to the methods he uses to blow the whistle, the plurality ignores these important principles.

That is not to say that every report made by an employee in a compliance position is or should be a protected report. An employee in a compliance position may make many routine reports which reveal possible illegalities, but which do not suggest the employee has the purpose of blowing the whistle. Obst requires an employee asserting a whistleblower claim to prove that any report was made in good faith and for the purpose of exposing an illegality. Id. at 202. The fact finder is already charged with determining whether the evidence supports the finding of such a purpose. Id. Thus, even when an employee has an obligation to make a report because of his job duties, that report should be protected if, but only if, the employee is able to prove the report was not merely routine but, instead, was made in good faith with the contemporaneous purpose of “blowing the whistle.”4 See id.

In Kidwell’s case, the jury concluded that Kidwell had made a protected report. The jury was specifically instructed by the district court that for a report to be protected it must, among other things, be made in good faith. The court told the jury that a good faith report is one which the employee made with a purpose “to ‘blow the whistle’ for the purpose of exposing an illegality, that is a violation of federal, state, or local law.” The court also told that jury that “[t]o determine whether a report was made in good faith, you must look not only at the content of the report, but also at Mr. Kidwell’s job and purpose in making the report at the time the report was made, not after subsequent events transpired.” Based on these instructions, and the evidence presented in the case, the jury concluded that Kidwell had made a good faith report that was protected by the Minnesota Whistleblower Act.

Sybaritic now asks our court to overturn that jury verdict and issue a JMOL in its favor. When a district court considers a motion for JMOL, “it must determine whether, viewing the evidence in the light most favorable to the nonmoving party, the verdict is manifestly against the entire *240evidence or whether despite the jury’s findings of fact the moving party is entitled judgment (sic) as a matter of law.” Obst, 614 N.W.2d at 199 (quoting Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn.1998)). On appeal, we review the district court’s decision de novo. Id. (quoting Pouliot, 582 N.W.2d at 224). We do not set aside the jury verdict unless the evidence, when viewed in the light most favorable to the verdict, “ ‘is practically conclusive against the verdict.’ ” Id. at 200 (quoting Pouliot, 582 N.W.2d at 224).

Viewing the evidence in the light most favorable to the jury’s verdict, there is more than sufficient evidence to conclude that Kidwell’s report — the “Difficult Duty” email — was not merely a routine report but instead was made with the intention of “blowing the whistle.” Kidwell began the “A Difficult Duty” email stating that, “I write to you all with deep regret, but I cannot fail to write this email without also failing to do my duty to the company and to my profession as an attorney. That I will not do.”

In the email, Kidwell expressed concern about a “pervasive culture of dishonesty” at Sybaritic and then proceeded to set forth specific illegalities that concerned him. Kidwell concluded the email writing that,

It is my firm conviction that Sybaritic intends to continue to engage in tax evasion, the unauthorized practice of medicine and obstruction of justice. Accordingly, it is my intention to advise the appropriate authorities of these facts. I do this with no ill-will. To the contrary, I wish that I was not obliged to do so. However, the demand of Sybaritic that I become attorney of record in the [intellectual property action] has made it impossible to ignore the obstruction of justice issue, and compels me to speak out about the tax evasion and unauthorized practice of medicine issues which the company has refused to address. I regret that I see no other course of action available.

The plurality appears to conclude that when an employee who has the responsibility to report illegal behavior makes a report of such behavior, that employee will need evidence other than the report itself to prove subjective intent to blow the whistle. In other words, the plurality apparently concludes that Kidwell cannot prove his good faith solely through the “Difficult Duty” email. But the plurality analyzes the “Difficult Duty” email in an effort to find evidence of Kidwell’s lack of good faith. I find this analytical approach incongruous. I conclude that a jury can look to the report itself or to other evidence to find good faith. And here, while the contents of the “Difficult Duty” email are not in dispute, what those contents evince is the key question. Moreover, it is a question for a jury to answer, and not for our court to answer on appellate review.

Further, there is more evidence than the “Difficult Duty” email upon which the jury may have based its verdict. Kidwell sent the “Difficult Duty” email to most of the Sybaritic management team. A review of Kidwell’s prior work suggests that he typically informed one or two members of the management team when he had legal compliance issues. Based on the fact record, there was no prior occasion where Kidwell had made a report to the management team as a whole. Other circumstances that could reasonably be viewed as suggesting that the “Difficult Duty” email was not a routine report include the fact that Kidwell researched whistleblower law before writing the email, and that, according to Kidwell and his wife, the morning after the email was sent Kidwell told his wife just before leaving for work that it was possible he would be fired that day. Thus, *241there is sufficient evidence for a jury to conclude that Kidwell’s “Difficult Duty” email was not merely the performance of a routine job duty.

There is yet more evidence that, when viewed in the light most favorable to the jury verdict, supports a finding that Kid-well acted with the purpose of “blowing the whistle.” During the trial, Kidwell testified about his decision to send the email. He explained that he reported directly to Sybaritic’s President, Steve Daf-fer. Kidwell testified that he was aware of Daffer’s past history of criminal behavior.5 Kidwell explained that Daffer was “directing an awful lot of the decisions,” so he decided to report his concerns regarding the potentially damaging emails to the other members of Sybaritic’s management as well as Daffer. Kidwell explained that he believed he was ethically obligated to report his concerns, and that he spent the weekend before sending the email “weighing how and when was the appropriate time” to raise the concerns. Kidwell said the email was intended to let Sybaritic know that if the company did not come into compliance, he would have to report the illegalities to the appropriate authorities. Kidwell explained that by sending the email he “hoped that we could pull this company back into compliance by enlisting some of the other members of management, and as the person responsible for the legal affairs of the company, that’s what I had to do.”

Kidwell’s email and testimony make it apparent that Kidwell understood that his professional responsibilities were implicated by the illegalities he suspected were taking place at Sybaritic. However, a jury could reasonably conclude that Kidwell was not motivated simply by his professional responsibilities, but that he was concerned about a “culture of dishonesty” and felt an ethical duty to “blow the whistle” on the illegalities he believed were taking place. Kidwell testified that he felt ethically obligated to make the report. Kid-well also said that he believed he would be terminated for sending the email because “the messenger with bad news has a tendency to get shot.” For this reason, Kid-well said he wanted to get some advice before sending the email. Kidwell testified that he called his father, who told him to “do the right thing.”

If Kidwell had only been concerned with complying with his job and professional responsibilities, he may have been able to avoid the need to personally report the suspected discovery violations in the litigation Sybaritic was involved in as a defendant. Sybaritic’s outside counsel in the litigation was also concerned about possible evidence tampering. Outside counsel expressed his concern to Kidwell over possible evidence tampering and told Kidwell that he planned to write a letter to Daffer warning him about the legal consequences of any discovery violations. Kidwell could have permitted outside counsel to attempt to address the problem, in hopes that the suspected illegalities could be resolved without Kidwell’s involvement. Instead, Kidwell chose to personally make the re*242port to four members of Sybaritic management, expressing his concern about a culture of. dishonesty at the company, and revealing the discovery violations along with other legal concerns Kidwell had about the company.

At trial, Sybaritic attacked Kidwell’s good faith in sending the “Difficult Duty” email by questioning Kidwell on the extent to which he had verified the allegations before making them, arguing it was his job to report the concerns, and suggesting that the email was sent only to set up a whistle-blower claim. After being given jury instructions that set forth the governing legal standard, the jury rejected Sybaritic’s argument and returned a verdict in Kid-well’s favor. Based on the evidence, it was not unreasonable for the jury to conclude that Kidwell reported the perceived discovery violation to persons beyond Daffer in order to expose the illegalities and to express his concern with an overall “culture of dishonesty” at Sybaritic. Because the evidence presented was not “practically conclusive against the verdict” for Kid-well, I conclude that our court has no basis to and should not overturn the jury verdict. See Obst, 614 N.W.2d at 200 (quoting Pouliot, 582 N.W.2d at 224).

Nonetheless, despite the fact that the jury explicitly found that Kidwell acted with the purpose of exposing illegality, the plurality is willing to cast aside the jury’s considered judgment and replace the jury’s verdict with its own judgment. In the process, the plurality announces a legal rule — that an employee can only in a very rare case subjectively possess the purpose of exposing illegality if he blows the whistle using “normal channels.” The plurality’s rule is not based in the language of the Minnesota Whistleblower Act. Significantly, the plurality’s rule invades a well-established province of the jury, determining mental state, and instead establishes an arbitrary evidentiary hurdle. Because I fail to see the wisdom or the necessity of such a rule, I dissent.

The Concurrence:

In his concurrence, the Chief Justice appears to hold that, as a matter of law, Kidwell cannot be allowed to bring a whis-tleblower claim under Minnesota law because he emailed a copy of the “Difficult Duty” email to his father. I respectfully disagree. While the concurrence acknowledges that Minnesota’s Whistleblower Act contains no' exceptions for lawyers, it chooses to ignore the language of that statute in this case, and bases its result on the judiciary’s role in protecting the lawyer-client relationship. But as we have said many times, “[i]t is the duty of this court to apply the law as written by the legislature.” Int’l Bhd. of Elec. Workers, Local No. 292 v. City of St. Cloud, 765 N.W.2d 64, 68 (Minn.2009) (Magnuson, C.J., writing for a unanimous court). By crafting an exception to the Whistleblower Act without any attempt to ground the results reached in the text of the statute, the concurrence abandons its judicial role and invades the legislature’s right to weigh the competing policy implications of whis-tleblower protections.

The concurrence employs a narrow reading of Rule 1.6 of the Minnesota Rules of Professional Conduct to support its bright-line rule that lawyers who breach a fiduciary duty are barred from bringing a whistleblower claim. The concurrence states that when a lawyer breaches a fiduciary duty, a client has an absolute right to terminate the relationship. But, Rule 1.6 specifically contemplates whistleblower claims. Rule 1.6(b)(8) states that “[a] lawyer may reveal information relating to the representation of a client if ... the lawyer reasonably believes the disclosure is necessary to establish a claim or defense.... ” Minn. R. Prof. Conduct 1.6 (emphasis add*243ed). Before 2005, Rule 1.6 of the Minnesota Rules did not contain the word “claim,” referring instead to establishing a defense. Minn. R. Prof. Conduct 1.6 (2005). Rule 1.6 of the Model Rules of Professional Conduct has used the more inclusive “claim or defense” language for far longer. See ABA Comm, on Ethics and Profl Responsibility, Formal Op. No. 01-424 (2001). At the time Minnesota adopted the new version of Rule 1.6 — incorporating the “claim or defense” language — the American Bar Association’s ethics opinion accompanying Rule 1.6 of the Model Rules of Professional Conduct stated that Rule 1.6 of the Model Rules allows an in-house attorney to pursue a retaliatory discharge claim, including the ability to “reveal information to the extent necessary.” See id. Therefore, Rule 1.6 of the Minnesota Rules by its terms, specifically the “claim or defense” language, contemplates certain situations where lawyers may bring whis-tleblower actions against their employers. Even though a client has a right to terminate the attorney-client relationship, this does not remove an in-house attorney’s right to sue under some circumstances.

In essence, the concurrence argues that Kidwell should be barred from maintaining a claim because the district court found that Kidwell breached his fiduciary duties under the rule when he emailed his father a copy of the “Difficult Duty” email. Nothing in the statute or the rule, however, supports the concurrence’s bright-line rule that breaking a fiduciary duty forecloses a whistleblower claim.

Moreover, the fact that Kidwell breached his fiduciary duty was an important piece of information for the jury to consider. It was relevant in determining whether Kidwell blew the whistle in good faith and also relevant in determining whether Sybaritic’s firing of Kidwell was caused by his protected conduct, rather than some other legitimate reason. As I note in my response to the plurality opinion, good faith is properly a question for the jury to answer, and, here the jury has already answered that question. Accordingly, it is not a question for our court to answer on appellate review.

. The plurality appears to cite Obst for the proposition that an employee responsible for investigating and reporting illegal conduct cannot use a report of that conduct as evidence of subjective intent to blow the whistle. Supra at 13-14. We did not reach this conclusion in Obst. Rather, we concluded that an employee’s report must have been made in good faith, meaning for the purpose of exposing an illegality. Obst, 614 N.W.2d at 202. Further, we concluded that in determining good faith we look both to the content of the report and to other evidence of the employee's purpose in making the report. Id.

. I disagree with plurality's characterization of the holding in Rogers. The plurality states that the Texas statute at issue in Rogers protects only reports made to law enforcement agencies and not reports made to employers, and the plurality goes on to assert that "[i]t was precisely because of the unique provisions in the Texas statute that the Rogers court did not follow the Huffman analysis.” Supra at 15 n. 6. It is true that the Texas statute at issue in Rogers does not protect reports made to employers, and in Rogers an employee was ordered by his supervisor to make a report, which happened to discuss a violation of law. Rogers, 89 S.W.3d at 272-75. The plurality writes as if the fact that this report was made to an employer was the key factor upon which the Rogers court relied in declining to follow Huffman. This is not the case. Rather, as I point out above, the Rogers *237court relied on legislative history and precedent in declining to adopt the Huffman rule.

. In fact, Obst itself concerned a quality assurance manager who worked for Microtron, a manufacturer of electronic components for the automobile industry. 614 N.W.2d at 198. Obst’s claim was based on a report in which Obst stated that Microtron was not manufacturing a specific product according customer-approved procedure and Microtron needed to reveal that failure to the customer. Id. at 198-99. Obst made that report during regular meetings designed to address the problems with the product. Id. at 199. In Obst, we concluded that Obst did not have the requisite good faith when he made the report. Id. at 202-03. But we did not reach this conclusion because it was Obst’s job duty to monitor quality compliance. Rather, our conclusion was based on the fact that the only illegality Obst claimed to have reported was widely known to all parties involved. Id. at 202-203.

. Allhough the plurality does not reach the issue, Sybaritic also argues that an in-house attorney should be precluded from asserting a whistleblower claim based on the attorney's professional responsibilities. The Minnesota Whistleblower Act contains no such exclusion and the overwhelming plurality of jurisdictions have rejected such claims based on rules identical to Rule 1.6 of Minnesota’s Rules of Professional Conduct. See Heckman v. Zurich Holding Co. of Am., 242 F.R.D. 606, 608-09 (D.Kan.2007) (listing at least ten courts that have disagreed with Balia and then joining the plurality of jurisdictions in rejecting Balla). I would join the growing plurality of jurisdictions that conclude the Rules of Professional Responsibility do not bar such claims.

. In 1984, our court indefinitely suspended Daffer from the practice of law, with a right to apply for readmission after five years. In re Daffer, 344 N.W.2d 382, 383 (Minn.1984). The suspension was issued after Daffer was convicted of mail fraud in federal court. Id. at 383. Daffer had knowingly appropriated approximately $170,000 in funds that were accidentally deposited into his investment account. Id. He entered into a scheme to use the funds to generate income for himself and a partner, and in furtherance of the scheme he altered identification cards which were sent through the mail. Id. at 383-84. When caught, Daffer returned the funds with interest and pleaded guilty to the mail fraud charge. Id.