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Attorney’s First Amendment retaliation claim survives

Virginia Lawyers Weekly//June 24, 2022

Attorney’s First Amendment retaliation claim survives

Virginia Lawyers Weekly//June 24, 2022

Where a former Town of Pound attorney alleged that he was terminated less than one week after he provided deposition testimony about alleged corruption and abuse of power by the mayor, and his interest in speaking on the issue outweighed the town’s interest in providing efficient services, his First Amendment retaliation claim survived the town’s motion to dismiss.


Timothy W. McAfee alleges that he was terminated as the attorney for a Virginia municipality in retaliation for his constitutionally protected speech. He asserts a claim against a town council member (Clifton Cauthorne) pursuant to 42 U.S.C. § 1983, along with pendant state-law claims for breach of contract and tortious interference with contract against the town and the council member. The defendants have moved to dismiss for failure to state a claim upon which relief can be granted.

Free speech retaliation claim

To determine whether a public employee has stated a claim for retaliatory discharge, the court must consider whether: (1) the employee spoke as a citizen on a matter of public concern; (2) the employee’s interest in speaking on the issue outweighed the government’s interest in providing efficient services and (3) the employee’s speech was a substantial factor in their termination.

The complaint indicates that McAfee was deposed as part of a legal proceeding, and had an obligation to tell the truth. That McAfee may have acquired knowledge of the subject matter upon which he testified – the alleged corruption and abuse of power by town mayor Stacy Carson – during the performance of his job duties as town attorney does not convert his testimony into unprotected employee speech.

Next, the complaint contains sufficient factual allegations that McAfee’s interest outweighs that of the town. McAfee testified on matters of public concern, and there is nothing to suggest that he testified in bad faith or untruthfully. There is also no allegation that he disclosed confidential information.

It is possible that the town would be able to show a compelling interest because McAfee held a position of confidence. But even assuming the town could prove that its interest outweighs McAfee’s on this ground, the defendants have failed to identify the relevant interests with the required specificity in their motion.

The defendants rely upon case law interpreting Virginia’s legal ethics rules and the nature of legal contracts that recognizes an attorney-client relationship “may be, indeed should be, terminated” in the absence of trust and confidence. Although the general principles governing legal contracts may justify termination of an attorney, they are not sufficient to show a compelling interest for the purpose of the First Amendment.

Finally, to survive a motion to dismiss, a plaintiff need only allege that the protected speech was a substantial factor in the termination. Here, McAfee contends that the stated reason for his termination was his criticism of Carson for “her abuse of authority” The town council voted to terminate him less than one week after his deposition. That is sufficient at this stage to infer causation.


Legislative immunity protects only legislative actions; executive and administrative actions are not covered. Here, Cauthorne’s actions were administrative in nature. Accordingly, he cannot invoke the defense of legislative immunity.

Cauthorne is not entitled to qualified immunity, at least at this stage of the proceedings. As explained above, I find that the plaintiff has alleged a plausible violation of his First Amendment right. And it was clearly established in March 2021 that the First Amendment prohibits the termination of a public employee based on deposition testimony where he spoke critically about a local government official.

Declaratory judgment

McAfee seeks a declaratory judgment proclaiming that his speech is protected under the First Amendment. Any attempt to establish the future obligation of the defendants not to retaliate against employees based on protected speech would be highly speculative and likely irrelevant, as McAfee is no longer providing legal services to the town and he does not assert claims on behalf of other public employees. This count is dismissed.

Breach of contract

The town could not have breached its contract for future employment with McAfee because that contract implicitly included the inherent right to terminate McAfee at any time. To the extent that the contract purported to limit that right by imposing an obligation to employ McAfee for six years, it is unenforceable. This count is dismissed.

Tortious interference

For a prima facie showing of tortious interference with contract, Virginia law requires intentional interference with the contract “inducing or causing a breach” The town did not breach the contract by terminating McAfee. Put simply, Cauthorne could not have induced or caused a breach that did not occur. This count is dismissed.

Defendants’ motion to dismiss granted in part, denied in part.

McAfee v. Cauthorne, Case No. 2:21-cv-00033, June 13, 2022. WDVA at Big Stone Gap (Jones). VLW 022-3-241. 20 pp.

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