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Scott Rabin v. Karlin and Fleisher

March 18, 2011

SCOTT RABIN,
PLAINTIFF-APPELLANT,
v.
KARLIN AND FLEISHER, LLC; RICHARD FLEISHER; AND RONALD FLEISHER;
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 08 L 12871 Honorable Allen S. Goldberg, Judge Presiding.

The opinion of the court was delivered by: Judge Epstein

JUDGE EPSTEIN delivered the judgment of the court, with opinion.

Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgement and opinion.

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.

BACKGROUND

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:

"Scott Rabin, Investigator

Karlin & Fleisher 111 W. Washington, Suite 1505 Chicago, Illinois 60602"

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 adding plaintiff's name and address. Plaintiff declined, for "he felt it was improper or otherwise wrong." He then refused to provide any more "bogus 'investigation' invoices" to the Firm, complaining that "creating invoices that made it look like was not a fulltime paid employee of the Defendants *** was improper and may have been a violation of the law and the Rules of Professional Conduct." He also claimed defendants' "conduct amount[ed] to fraud on the clients and a fraud on the courts because the so-called expenses [for his services] were deducted from settlement proceeds paid to contingent fee clients and said sums were retained by the Defendants *** without the full knowledge and consent of the clients."

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:

"15. In approximately February of 2008 the Plaintiff was terminated from his job. The termination was in retaliation of Plaintiff complaining about the fact he was asked to create and alter or amend 'invoices' that would make it appear as if he was not an employee of the Defendant firm and otherwise complained about charging clients for work he performed as a paid employee of the Defendants.

16. Defendants violated public policy by using 'invoices' that made it appear Plaintiff was not an employee, by not informing the clients that the Plaintiff was a fulltime employee, by charging the clients $40.00 per hour for the work performed without adequately informing the clients about th[e] fact that Defendant [sic] was an employee, by misleading clients and the courts about the expenses incurred and ...


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