A former associate of King & Spalding has sued the law firm for wrongful termination, saying he was fired in December 2016 because he reported ethical misconduct to the firm’s management.
David A. Joffe worked as a New York commercial litigation associate at the firm from January 2012 to December 7, 2016.
In a 15-page complaint filed in the Southern District of New York this week, Joffe claimed the firm took retaliatory action against him after he reported “actual or narrowly-averted ethical breaches" by partners Robert Perry and Paul Strauss.
The partners, he claimed, made misrepresentations in 2014 in a wrongful disclosure case before U.S. District Judge Lewis Kaplan. Joffe claims in his suit that after he raised his concerns about the partners’ conduct with King & Spalding’s general counsel, he was given a poor performance review and abruptly fired later that year.
In a statement, a King & Spalding spokeswoman said Joffe’s termination had nothing to do with the matter.
“He was terminated because he repeatedly refused to comply with directives and expectations that apply to all firm associates,” she wrote in a statement.
Joffe’s allegations relate to the case Vringo Inc. v. ZTE Corp, in which the tech company Vringo sued ZTE, claiming it breached a non-disclosure agreement that ZTE entered into during settlement discussions in international patent infringement litigation in 2013.
The complaint says ZTE shared unspecified confidential information about Vringo with a Chinese court, a Chinese administrative agency, and also with Google Inc.
In the wrongful termination lawsuit, Joffe said that he had “raised his objections” to Strauss’s effort to obtain a sworn declaration from ZTE stating ZTE had not disclosed confidential information. Joffe claims in his lawsuit that the individual who signed the declaration “appeared to lack any personal knowledge of the facts.”
According to his complaint, Joffe said: “If you go through with this, I will personally report you to the Bar,” to which Straus replied, “Thanks for your support,” presumably with sarcasm.
[caption id="attachment_49623" align="aligncenter” width="420"][Image “An employee enters ZTE Corp.'s headquarters in the Nanshan district of Shenzhen, China, on Thursday, Aug. 7, 2014. ZTE, a Chinese maker of telecommunications equipment and systems, is scheduled to report second quarter earnings on Aug. 20. Photographer: Brent Lewin/Bloomberg” (src=https://bol.bna.com/wp-content/uploads/2017/05/200520437-e1494442853836.jpg)]ZTE Corp.'s headquarters in the Nanshan district of Shenzhen, China. Photographer: Brent Lewin/Bloomberg[/caption]
The complaint quotes Kaplan,the presiding judge in the case, at multiple instances criticizing the firm’s handling of the case. In once instance, Kaplan said at a June 2015 hearing, according to the complaint: "[Y]ou are compiling quite a track record in this case here. I see obstruction all over the place, not in a technical obstruction of justice criminal case sense, but obstruction of legitimate discovery, and I am not going to stand for it much longer.”
On Aug. 7 2015, King & Spalding filed a motion to withdraw as counsel and the case settled later that year, according to the complaint.
In a statement, a King & Spalding spokeswoman said that “we... deny that our lawyers knowingly made any false statements to the Court.”
“Mr. Joffe was involved in all aspects of the ZTE case and was present in the courtroom on July 7, 2014 when our partner made statements based on information provided by our client that we later learned were inaccurate. Mr. Joffe was also one of the counsel for ZTE on the December 2014 reply brief quoted in the complaint. If Mr. Joffe had any reason to believe that those statements were not true at the time they were made, he had an obligation to immediately so advise the partner or the Court. He did neither.”
Joffe declined to respond to the statement.
Reporting the Partners’ Conduct
Joffe said he decided to report his partners’ actions to the firm because their misrepresentations "triggered his ethical duty pursuant to New York Rule of Professional Conduct (RPC) 8.3 to report potential attorney misconduct.”
Around the end of July or early August of 2015, the complaint said, Joffe reported the conduct to the firm’s general counsel Robert Thornton and its outside counsel Philip Forlenza. Soon after, Joffe found himself in the hot seat: In December 2015, he received his annual performance evaluation from King & Spalding partner David Tetrick, who removed him from partnership track and froze his pay, the complaint states.
The firm attributed his performance to late timesheets in the prior review period and an incomplete personal business development plan, the complaint said.
However, Joffe said that his performance was exemplary, billing more than 700 hours in the first three months of 2016. By October of that year, he was on pace to exceed the firm’s 2,100-hour billable-hour target for associates, the complaint said. Nevertheless, at that time, too, Tetrick told Joffe that the firm believed his career had “stagnated” and that he should work to regain an “ascending trajectory,” the complaint said.
During his October review, Joffe raised concerns again about the ZTE matter and asked Tetrick whether he may consult with others at the firm.
Per the complaint:
Mr. Tetrick instructed Mr. Joffe to place a “ring” around the ZTE Matter and not disclose any non-public information about the ZTE Matter to anyone, including internally at K&A. In particular, Mr. Tetrick instructed Mr. Joffe not to discuss what the latter had indicated were “red flags” in the ZTE Matter with anyone at the Firm.
Mr. Joffe asked Mr. Tetrick and K&S partner Wendy H. Waszmer, Esq., who was also present at Mr. Joffe’s performance review, whether Mr. Joffe may meet again with one or both of them to discuss these issues further. Mr. Tetrick responded that, for now, Mr. Joffe should “focus on your cases,” and that they would meet again in December 2016.
It was on Dec. 7, 2016 when King & Spalding terminated Joffe without advance notice, the complaint said.
“Indeed, at the very time K&A terminated Mr. Joffe’s employment and escorted him from its offices, Mr. Joffe was lead counsel of record for the Firm’s clients in several active, pending federal cases in the Southern and Eastern Districts of New York,” the complaint said.
Joffe is requesting a jury trial and seeking compensatory damages for loss of wages (back pay and front pay) and lost benefits, attorney’s fees, among other costs. The lawsuit doesn’t cite a specific figure.
Joffe is represented by Andrew Moskowitz of Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, P.C.
Read the full complaint on Bloomberg Law .