Judge EPSTEIN delivered the judgment of the court, with opinion.
Plaintiff, Scott Rabin, appeals the trial court's dismissal of his second amended complaint for retaliatory discharge (the Complaint) pursuant to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615 (West 2008)). He maintains the trial court erroneously found the Complaint fails to state a cause of action. For the reasons below, we affirm.
In July 1997, defendant Karlin & Fleisher, LLC (the Firm) hired plaintiff to perform several duties acting as an investigator for its contingency fee cases. Although plaintiff was a salaried employee, the Firm billed its clients allegedly $40 per hour for plaintiff's work without disclosing his employment status or his actual wages, which were less than $40 per hour. Plaintiff did not initially record his hours at the Firm. However, in 1998 Ronald Fleisher, one of the Firm's attorneys, allegedly advised him to bill the Firm for his hours on "invoices" dating back to the beginning of his employment. Plaintiff complied, initialing billing as:
Ronald allegedly then instructed him to remove the Firm's name from the invoices, in order to disguise the fact that he was an employee.
On July 10, 2007, Ronald allegedly asked plaintiff to alter an invoice in a case by
In February 2008 the Firm terminated plaintiff's employment. He then filed the instant lawsuit against Ronald, the Firm, and Richard Fleisher, a firm attorney. After the trial court dismissed plaintiff's original complaint with prejudice pursuant to section 2-615 and section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 2008)), he filed a motion to reconsider that was denied. The trial court granted him leave to amend, however, pursuant to which he filed the Complaint claiming:
The trial court dismissed the Complaint with prejudice pursuant to section 2-615, finding, inter alia, that the Complaint failed to support plaintiff's claims of illegality and the trial court's previous ruling barred the professional responsibility claims. The court earlier held, in dismissing plaintiff's original complaint:
Plaintiff now appeals, contending the Complaint states a retaliatory discharge claim.
"When reviewing the dismissal of a complaint for failure to state a cause of action, all well-pleaded facts and inferences drawn therefrom are accepted as true." Paskarnis v. Darien-Woodridge Fire Protection District, 251 Ill.App.3d 585, 586, 191 Ill.Dec. 138, 623 N.E.2d 383 (1993).
Nevertheless, "Illinois is a fact-pleading jurisdiction. [Citation.] While the plaintiff is not required to set forth evidence in the complaint [citation], the plaintiff must allege facts sufficient to bring a claim within a legally recognized cause of action [citation], not simply conclusions [citation.]" Marshall v. Burger King Corp., 222 Ill.2d 422, 429-30, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006). Our review of a section 2-615 or section 2-619 dismissal is de novo. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill.2d 558, 579, 304 Ill.Dec. 369, 852 N.E.2d 825 (2006). We are not bound by the trial court's reasoning and "may affirm on any basis supported by the record, regardless of whether the trial court based its decision on the proper ground." In re Marriage of Gary, 384 Ill.App.3d 979, 987, 323 Ill.Dec. 783, 894 N.E.2d 809 (2008).
An Illinois employer may generally fire an at-will employee for any or no reason. Jacobson v. Knepper & Moga, P.C., 185 Ill.2d 372, 375-76, 235 Ill.Dec. 936, 706 N.E.2d 491 (1998). The tort of retaliatory discharge is a "limited and narrow" exception to that rule. Id. at 376, 235 Ill.Dec. 936, 706 N.E.2d 491. "[T]he only proper defendant in a retaliatory discharge action is the plaintiff's former employer." Buckner v. Atlantic Plant Maintenance Inc., 182 Ill.2d 12, 22, 230 Ill.Dec. 596, 694 N.E.2d 565 (1998). It is undisputed here that plaintiff's former employer is the Firm. Plaintiff's conclusory and unsupported allegation that Ronald and Richard Fleisher "are jointly and severally liable to" him as well is insufficient to state a claim. Misselhorn v. Doyle, 257 Ill.App.3d 983, 985-86, 195 Ill.Dec. 881, 629 N.E.2d 189 (1994) (In ruling on a motion to dismiss "the court must ignore conclusions of law and fact not supported by allegations of the specific facts upon which such conclusions rest."). We affirm the dismissal of defendants Richard and Ronald Fleisher with prejudice.
As for the Firm, "to state a valid retaliatory-discharge cause of action * * * plaintiff must allege that he was discharged in retaliation for his activities and that his discharge violates a clear mandate of public policy." Barr v. Kelso-Burnett Co., 106 Ill.2d 520, 529, 88 Ill.Dec. 628, 478 N.E.2d 1354 (1985).
Case law also reveals that retaliatory discharge claims have been disallowed between licensed attorneys previously employed as such and their former firms. Id. at 378, 235 Ill.Dec. 936, 706 N.E.2d 491. Here, plaintiff, a non-attorney, maintains he was fired by the Firm for complaining about, and refusing to participate in, criminal conduct that violates the Rules of Professional Conduct (Rules), namely, the Firm's alleged policy of
We will address these in turn, beginning with the Firm's rate for plaintiff's services.
While plaintiff maintains the Firm improperly charged its clients more than the actual cost of his investigation services, he does not dispute the clients signed agreements, one of which is attached as exhibit 1 to the Complaint, agreeing to pay investigation expenses "based on the cost and/or prevailing rates for such services in the Chicagoland area." (Emphasis added.) Plaintiff does not maintain the Firm did not charge the prevailing rate for his services, that the rates were unreasonable, or that he did not perform the work billed. He argues instead that the investigation charges were improper because they are "overhead which an attorney cannot charge for in a contingency fee case." This conclusory allegation fails on its face. Johnson v. Thomas, 342 Ill.App.3d 382, 276 Ill.Dec. 669, 794 N.E.2d 919 (2003), cited by plaintiff in support of that conclusion, is inapposite. There, unlike in this case, the prevailing party sought to recover costs under a statute that neither defined "costs" nor listed which costs were recoverable. Id. at 401, 276 Ill.Dec. 669, 794 N.E.2d 919. Here, the Firm's form contract upon which plaintiff's claims are based plainly states that investigation expenses shall be paid by the client in addition to the percentage fee:
This provision also belies plaintiff's claim that the Firm was required to inform its clients that its investigator was a salaried employee as opposed to a third party. Plaintiff has not cited any authority conduct of which he complains. "The law and the public policy of Illinois permit and require that competent parties be free to contract with one another." Liccardi v. Stolt Terminals Inc., 178 Ill.2d 540, 549, 227 Ill.Dec. 486, 687 N.E.2d 968 (1997). "Parties to a contract are free to include any terms they choose, as long as those terms are not against public policy and do not contravene some positive rule of law." Green v. Safeco Life Insurance Co., 312 Ill.App.3d 577, 581, 245 Ill.Dec. 140, 727 N.E.2d 393 (2000). "Public policy itself strongly favors freedom to contract." Holstein v. Grossman, 246 Ill.App.3d 719, 726, 186 Ill.Dec. 592, 616 N.E.2d 1224 (1993). Here, plaintiff has not alleged the Firm's agreements with its clients violate public policy or contravene a positive rule of law. It therefore cannot be said, under the unique facts of this case, that it was patently improper or illegal for the Firm to bill its clients a prevailing rate for plaintiff's
Plaintiff also maintains defendants actively misled their clients and the court by requiring him to create invoices for his services that disguised he was a firm employee. Such conduct, while distasteful, is not manifestly illegal. Plaintiff may nevertheless succeed on his retaliatory discharge claim by showing that the Firm's termination of his employment for complaining about and refusing to participate in the Firm's alleged misconduct "violates a clear mandate of public policy." Barr, 106 Ill.2d at 529, 88 Ill.Dec. 628, 478 N.E.2d 1354. Plaintiff claims here that the Firm's conduct violated public policy by violating certain Illinois criminal statutes, the "citizen crime-fighter" exception to at-will employment, and the Rules of Professional Conduct. We agree with the trial court, however, that plaintiff's pleading does not support his claims of illegality. While "a plaintiff attempting to state a cause of action for retaliatory discharge after being fired for reporting possible illegal activity need not allege or prove conclusively the law has been violated in order to state a cause of action," he must have a good-faith belief that the defendant was violating the law. Johnson v. World Color Press, Inc., 147 Ill.App.3d 746, 751-52, 101 Ill.Dec. 251, 498 N.E.2d 575 (1986); accord Mackie v. Vaughan Chapter-Paralyzed Veterans of America, Inc., 354 Ill.App.3d 731, 740, 289 Ill.Dec. 967, 820 N.E.2d 1042 (2004). It cannot be said here that a reasonable person could conclude on account of plaintiff's pleading that defendants' conduct was criminal.
As for the Rules, plaintiff alleges in a conclusory and unsupported fashion that defendants violated public policy by violating "the Rules of Professional Conduct which include[ ] but [are] not limited to the Preamble, Rule 1.4(b), Rule 8.4 and Rule 1.5." This court has held, albeit in a different context, that "where attorney conduct is at issue, we look to the supreme court rules for expressions of public policy." Richards v. SSM Health Care, Inc., 311 Ill.App.3d 560, 564, 244 Ill.Dec. 87, 724 N.E.2d 975 (2000); accord Mohanty v. St. John Heart Clinic, S.C., 225 Ill.2d 52, 67, 310 Ill.Dec. 274, 866 N.E.2d 85 (2006) ("AMA Opinion 9.02, while informative, is not the equivalent of an Illinois statute or rule of professional conduct and, for that reason, does not provide a clear expression of the public policy of this state."); but see Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180, 193, 91 N.E. 1041 (1910), and its progeny ("The public policy of the State or of the nation is to be found in its constitution and its statutes, and when cases arise concerning matters upon which they are silent, then in its judicial decisions and the constant practice of the government officials. [Citations.] Courts will not look to other sources to determine the public policy of a State. * * * `The public policy of a State or nation must be determined by its constitution, laws and judicial decisions,—not by the varying opinions of laymen, lawyers or judges as to the demands of the interests of the public.'"). Nevertheless, the mere citation to the Rules will not alone state a retaliatory discharge claim. Cf. Turner v. Memorial Medical Center, 233 Ill.2d 494, 505, 331 Ill.Dec. 548, 911 N.E.2d 369 (2009) ("[T]he mere citation of a constitutional or statutory provision in a complaint will not, by itself, be sufficient to state a cause of action for retaliatory discharge. Rather, an employee must show that the discharge violated the public policy that the cited provision clearly mandates."). A plaintiff
The Complaint here fails to state a cause of action. Although attorney honesty and fidelity are vital to the legal system and a matter in the public interest, we do not believe that a former law firm employee can be immune from the general rule of at-will employment merely by complaining to the Firm and its attorneys prior to being fired about deceitful but seemingly legal billing practices he no longer wishes to participate in. While we do not condone the Firm's alleged misconduct here, we are not persuaded that plaintiff's allegation of "honesty and fidelity" in the legal system
The trial court properly dismissed the Complaint for failure to state a retaliatory discharge claim. Plaintiff has not pled an exception to the general rule of at-will employment.
Affirmed.
Presiding Justice FITZGERALD SMITH and Justice HOWSE concurred in the judgement and opinion.