Wisconsin Supreme Court Rules that Arbitration Order Reinstating In-House Counsel Violates Public Policy
This week, In Sands v. Menard, the Wisconsin Supreme Court set aside an arbitration order that had reinstated an in-house lawyer who had prevailed on an Equal Pay Act claim. This reverses the holding of the lower appeal court that was discussed in a blog post in April 2009.
The court ruled that the arbitration panel exceeded its authority in ordering reinstatement because – in this case -- plaintiff could not ethically continue to represent defendant; therefore, the reinstatement violated public policy. The arbitration panel had indicated that it would award either front pay or reinstatement. It chose reinstatement. The Wisconsin Supreme Court ordered that an appropriate award of front pay be made.
The majority expressly left open the question of whether the Rules of Professional Conduct, which give employers the right to discharge attorneys at any time, apply when the defendant has violated non-discrimination laws.
Three judges dissented.
Whatever the legal merits of this case, given the facts -- it is difficult to imagine how plaintiff could have continued as defendant’s in-house counsel.
