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Eleventh Circuit Dismisses Suit Against Defense Counsel for Criminal Referral of Employee

    Client Alerts
  • October 07, 2022

When defending employers accused of discrimination, harassment, or other claims, defense counsel occasionally comes across evidence indicating that the employee may have engaged in criminal activity. If the employer or its defense counsel reports such evidence to law enforcement, can they be accused of retaliating against the employee pursuing legal claims? According to a recent decision from the Eleventh Circuit Court of Appeals, legal counsel cannot be sued by the employee for conspiracy based on actions taken within the scope of their representation of the employer.

In Chance v. Cook, the plaintiff sued her employer, alleging discrimination, harassment, and retaliation. During discovery, the employer’s defense counsel determined that the plaintiff had recorded workplace conversations violating Florida’s privacy laws. That counsel reported the matter to law enforcement, who investigated but ultimately declined to file charges against the plaintiff. She, in turn, sued the employer’s legal counsel, alleging a conspiracy to intimidate her. She based these claims partly on her allegation that the lawyers waited until the plaintiff tried to introduce the recordings as evidence before making the criminal referral.

The Eleventh Circuit dismissed the suit, concluding that the employer’s counsel was immune from civil conspiracy claims. The court said that as long as the attorneys acted within the scope of representing their client, the criminal referral was protected. The attorneys’ motives in making the referral were irrelevant to this determination.

Despite this decision, employers should exercise caution before filing criminal charges against an employee who has made legal claims against them. This case did not involve an administrative retaliation charge before the Equal Employment Opportunity Commission (EEOC), and the legal standard for those claims is substantially different from the one discussed in this case. Any decision to pursue criminal or civil claims against an employee involved in a dispute with the company should be made only after careful consideration and consultation with legal counsel.