Fired Attorney's Claim for Breach of Oral Contract Can Go Forward

An attorney can proceed with a lawsuit alleging that the firm she worked for breached an oral contract by firing her, a California appellate court ruled. The firm's promise that it would continue to employ the attorney as long as her performance was "average" was a little vague, but it was not unenforceable, the court said. The attorney produced evidence of what the firm meant by "average," so the court could determine whether the law firm had breached its promise to her.

The attorney began working at the firm in 2012. She received performance reviews saying she needed to improve her legal research, analysis and writing. The chair of the firm's litigation department allegedly told her the firm wanted her to succeed and that it would continue to employ her as long as she performed as an average associate.

However, she was fired in 2014. After she failed to find a new job, she started a solo practice in July 2014. She then sued her previous employer for breach of oral contract, among other claims. The trial court dismissed the lawsuit before trial, and the attorney appealed. 

Breach of Contract Actions

To bring an action for breach of contract, a plaintiff must show the following evidence:

• The existence of a contract.
• The plaintiff's performance record or excuse for failure to perform.
• The defendant's breach of the contract.
• Resulting damage to the plaintiff.  

There is no contract if an alleged agreement does not provide a basis for determining the parties' obligations and whether those obligations have been breached.

In support of her breach of contract claim, the attorney claimed that the firm promised it would continue to employ her if she performed as an "average" associate. The law firm argued that this alleged promise was too vague and indefinite to enforce.

A promise to continue employment so long as the employee's performance is "average," or the employee performs as an "average associate," is a little vague, the court acknowledged, but the attorney also alleged facts from which the court could ascertain the parties' shared intentions and understanding of what "average" meant.

The attorney alleged that the firm annually reviewed the performance of its associates, which suggested that the firm had indicators or metrics to evaluate and compare the performance of its associates.

The attorney also alleged that the firm used specific indicators to measure the performance of its associates and that the firm communicated those indicators to her. 

Therefore, the court ruled, the court could ascertain whether the firm had kept its promise to the attorney, and she could move forward with her claim for breach of oral contract.

Avetisyan v. Drinker Biddle & Reath, Calif. Ct. App., No. B294671 (April 2, 2021).

Professional Pointer: In California, oral contracts are generally enforceable, except for specific types of agreements that are required by law to be in writing. Employers therefore must be careful about what they promise employees not only in written documents but when making verbal statements. Legally binding obligations may arise from oral promises.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.