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May 11, 1970

Gerald B. LEFCOURT, suing on behalf of himself and all others similarly situated, Plaintiff,
The LEGAL AID SOCIETY, Edward O. Carr, Jr., Anthony F. Marra, Milton Adler, Edward Everett Watts, Jr., and Robert P. Patterson, Jr., Defendants

Lasker, District Judge.

The opinion of the court was delivered by: LASKER

LASKER, District Judge.

This action, brought by an attorney who claims wrongful discharge by his employer, illustrates the agonizing difficulties faced by those responsible for defending accused persons in the appallingly overcrowded metropolitan courts of the country.

 Gerald Lefcourt graduated from law school in 1967. While at law school his strong interest in defending indigent persons accused of crime was evidenced in a number of ways. He assisted in the formation at his law school of a chapter of the Law Students Civil Rights Research Council, an organization devoted to the recruiting of law students to aid lawyers engaged in civil liberties and poverty litigation, and during his last year at law school he served as a volunteer legal assistant for The Legal Aid Society.

 At the end of January 1968, Lefcourt was employed as a full-time staff attorney by The Legal Aid Society ("the Society"). He served with the Society until June 10, 1968, when he was discharged. Lefcourt contends that he was discharged "solely because of his exercise of his First Amendment rights in being openly critical of the Society and for organizing the Association of Legal Aid Attorneys of the City of New York, *fn1" and "that his discharge by the Society was wrongful and unlawful and that the things plaintiff said about the Society were true." *fn2"

 Claiming that The Legal Aid Society is an instrumentality of the state in its relationship with its legal staff and that its acts with respect to the staff constitute state action, Lefcourt argues that the court has jurisdiction of the action under 28 U.S.C. §§ 1331(a), 1343(3) and (4), as well as 42 U.S.C. § 1983. He contends that his discharge was violative of his constitutional rights of free speech as guaranteed by the First and Fourteenth Amendments, and that jurisdiction is predicated either upon the federal question statute, 28 U.S.C. § 1331(a), or on the basis of unconstitutional state action under 28 U.S.C. § 1343(3) and (4) and 42 U.S.C. § 1983. It appears that the federal question presented under § 1331(a) is the same as plaintiff claims under 42 U.S.C. § 1983, which provides in relevant part:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

 The defendants' position is that the plaintiff was an employee at will, subject to dismissal at any time for any cause; that The Legal Aid Society is not an instrumentality of the state whose actions are governed by the civil rights laws; and that, even if the Society be adjudged an instrumentality of the state, nevertheless the dismissal was lawful, since plaintiff was discharged not for the act of making critical statements, but "because the contents of his statements and his actions, activities and temperament while he was on the staff of The Legal Aid Society reflected adversely on his suitability as an attorney on the staff of the Society." *fn3"

 Without questioning the good faith of Lefcourt's efforts to achieve the crucial and important objective of improving the quality of defense of indigents in the courts in which he worked, *fn4" I find that the Society, also acting in good faith and with equal zeal for the welfare of its clients, discharged plaintiff lawfully. In reaching this determination I have concluded that Lefcourt was discharged as the result of an amalgam of acts of which his statements constituted a part, but only a part, and that his total behavior during the course of his employment with the Society was such as to permit the Society to decide in good faith that his service was not in harmony with the welfare of the organization. *fn5"

 The mix of episodes which brought about Lefcourt's dismissal includes incidents which, objectively viewed and taken singly, are often insignificant but which, cumulatively, brought matters to the crisis of dismissal. I will review these episodes in a moment, but it should be noted that my findings of fact as to the reasons for discharge differ from the contentions of both parties. As stated above, plaintiff argues that he was discharged solely on account of his utterances, and I find that this was not so. On the other hand, defendants informed Lefcourt, at conferences held with him and his attorney after Lefcourt's dismissal, of a group of alleged items of malfeasance (several of which were knocked out of the "group" during the post-dismissal investigation), then ultimately advised the plaintiff that he had been dismissed for lack of judgment, and took the position at the trial (through its president) that Lefcourt was actually dismissed for lack of candor.

 In view of the varying reasons for dismissal alleged by defendants, the barrage of material aired at trial as to Lefcourt's employment record, and the fact that at least three of Lefcourt's supervisors (Carr, Marra and Patterson) and perhaps a fourth (Adler) participated in either the dismissal or review process, each giving a different version of the reason for dismissal, the image created by the presentation of the facts is somewhat blurred. In studying the record, however, there emerges a picture of a frictional relationship developing during the course of his employment between Lefcourt and some of his superiors which, capped by his strongly critical statements, caused those who were managing the Society, as I have said above, to conclude in good faith that Lefcourt's service was not in harmony with the welfare of the organization.

 Incidents Other than the Statements

 This class of episodes includes the following:

 1) Objections by Lefcourt to what he mistakenly thought was the Society's acquiescence in court procedures by which defendants between the ages of 16 and 18 were arraigned in the same court part as adult prisoners, and Lefcourt's drawing up of a petition asking the Society to withdraw its consent to the practice.

 2) Lefcourt's telephoning Adler on several occasions to ask for an extra week's vacation or a week's leave of absence without pay, in addition to his regular vacation. Whether justified or not (and Lefcourt disputes it), Adler described the calls this way:

"And he pressed me and pressed me - it was a very uncomfortable sort of thing, even though trivial - and I kept saying no * * *" (Tr. 407).

 3) Lefcourt's requests to Adler to shift the date of his night court duty. As to these, Adler's version was that

"* * * with all of the efforts that I made to talk to him about it, he kept nagging and nagging." (Tr. 408-409).

 4) Objections by Lefcourt (and Joseph Kaplan, his immediate superior in Brooklyn) to his being transferred back from Brooklyn to Manhattan. Lefcourt claims Adler refused to give a reason for the transfer; Adler says that he did give a reason, but concluded conversations on the subject by stating: "Look, I don't have to give you any reason, and I have given you a reason." (i.e., the transfer was normal and one of many being made at the same time). (Tr. 411-412.)

 5) Lefcourt's alleged behavior on June 3, 1968, his first day back in Manhattan, in laughing or chuckling in Adler's presence and saying, when he was assigned to Part 1-D, "Five lawyers for ten cases." When Adler asked Lefcourt what he meant, Lefcourt just turned and walked away. (Tr. 414.) Adler's reaction to what he considered Lefcourt's irritating behavior on this occasion is illuminated by the following colloquy at the trial:

"THE WITNESS: Well, what kind of a kid is this who takes a look at the calendar and knows what's going on in 1-D when he hasn't been here for a couple of months and has no idea, and so his reaction to my saying, 'You go to 1-D' was extraordinary. I hadn't heard anything like it before and, I might say, nor since.
"THE COURT: You felt it was small but significant, is that it?
"THE WITNESS: I felt it showed a certain lack and it was sufficient enough for me to tell Mr. Marra about it." (Tr. 416.)

 6) Lefcourt's request that he be given a day off to attend Senator Kennedy's funeral. This proposition was put to Marra, who, according to plaintiff, blew up at the question and said:

"'You have some nerve,' or words to that effect, 'asking for a day off. There are many people here who deserve it more than you do, and you can't have a day off and ...

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