On April 30, 2014, Kent Langerlan used his personal Gmail account to email an attorney with the Houston-based law firm Baker Botts, saying he might have information to blow the whistle on his employer, the Texas Commission on Environmental quality.
An investigator with the agency, Langerlan told a Baker Botts attorney that his girlfriend (now fiancée) Audra Benoit worked in enforcement in TCEQ's Beaumont office before the agency fired her in February 2013. Claiming TCEQ forced Benoit to do work "that was unlawful and against state and federal regulations," Langerlan wrote, "Ms. Benoit and I have a huge amount of documentation that validates her argument."
Hoping the mega-firm might represent them in a whistleblower claim against the agency, Langerlan wrote at the bottom of his email that he had "information which discredits the TCEQ Enforcement Division in all of your current and future cases within your division."
It was the email equivalent of a cold call, with no guarantee that Baker Botts would be interested. But not only did Baker Botts decline to take Langerlan's case, it appears the firm went snitching to the TCEQ.
In a lawsuit filed against Baker Botts last week, Langerlan accuses the firm of "gross negligence" for turning his email over to TCEQ and handing his employer "confidential and privileged" information that got him fired. Less than a week after Langerlan emailed Baker Botts attorney Shira Yoshor, TCEQ sent out an interoffice memo recommending Langerlan be terminated because he "contacted a Houston law firm seeking representation."
"As incentive to take the case, Mr. Langerlan's contact to the law firm indicated that he could provide information based on his position and employment with TCEQ," Ramiro Garcia, Jr., deputy director of TCEQ's office of compliance and enforcement, wrote in a memo recommending the agency fire Langerlan. "Mr. Langerlan offered to provide information that would discredit TCEQ's enforcement process and thereby benefit the firm's clients."
Baker Botts' behavior raises some unsettling questions: Should employees reaching out for legal advice fear an attorney might turn their information over to an employer if they decide not to take the case? Can and should employers be able to fire you for seeking legal advice?
Langerlan's attorney, Josh Davis, insists Baker Botts clearly violated attorney-client privilege in this case. When you contact a lawyer with possible claims against your employer, that initial contact is privileged, even if the attorney rejects the case, he says. "If someone contacts you and you don't wanna take the case, you don't take the case. But you certainly don't go and tell the person's employer about it," he said. 'That's basic ethics they hammer into you at law school."
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Langerlan's allegations against TCEQ remain vague. Pressed for more details about the now-scrapped whistleblower claim (Davis says any possibility of being a whistleblower ended when Baker Botts outed Langerlan and the agency fired him), Davis told us in an email: "While at TCEQ Ms. Benoit was asked by superiors to not enforce mandatory statutory penalties under various environmental statutes for certain respondents to TCEQ enforcement actions. She refused repeatedly and was terminated." Agency spokesman Terry Clawson wouldn't answer questions, saying, "we don't comment on personnel matters."
While Texas law protects information prospective clients share with lawyers, there are some exceptions, including when attorneys get information that "aids anyone to commit or plan to commit a crime or fraud." Baker Botts wouldn't return our calls this week, but Langerlan's lawsuit claims Baker Botts is trying to use the crime/fraud exception to justify what it did to Langerlan.
Davis argues that exception clearly doesn't apply here. "It's one thing if a client is coming to you and saying, 'I'm going to go commit a murder,' or such and such, but that's not what happened here," Davis says. "Take this through to its logical conclusion...Why didn't Baker Botts take this to the DA's office then, or the AG's office? If you think a crime is going to be committed, why take it straight to the employer? Take it to law enforcement."
Davis added: "I'm sure all of Baker Botts' white-collar criminal defendant clients would certainly be interested to know Baker Botts' position regarding the crime/fraud exception."