An attorney representing a Delaware agency has requested the state's Supreme Court to dismiss a former Morris James LLP paralegal's appeal for an en banc review to revive his unemployment benefits claim after he agreed to leave the firm.

Del Paralegal En Banc Call : Opposition to En Banc Request

In a letter to the Supreme Court's clerk on Wednesday, Deputy Attorney General Victoria W. Counihan, who represents the Delaware Department of Labor's Division of Unemployment Insurance in the pay dispute, argued that William Weller's latest motion was untimely. Weller, a former paralegal at Morris James LLP for two decades, has appealed a lower court ruling affirming the Unemployment Insurance Appeal Board's decision, which found him ineligible for unemployment benefits from Sept. 17, 2022, to Sept. 2, 2023.

Weller's request for an en banc consideration comes "two months after the completion of briefing and a month and a half after submission of the matter for decision on the briefs," Counihan stated. "The division would like to note its opposition to the motion," she wrote. "The matter has already been submitted for decision on the briefs, and the court found no basis for en banc consideration ab initio."

Del Paralegal En Banc Call : Claims of Misconduct

Weller filed a motion on Monday, arguing that en banc consideration would "benefit the parties, the public, as well as the integrity of the bar." He alleged misconduct by Morris James and its attorneys that impacted his appeal and multiple proceedings, causing harm to him, the public, and the integrity of the state's bar. An affidavit detailing the alleged misconduct was filed under seal, but Weller contended that it was "the underlying basis of the settlement payment" to resolve his whistleblower claims against the firm, which is central to his unemployment pay dispute.

Legal Arguments

Counihan countered that Weller's en banc request was misguided. "Appellant has not articulated any legitimate basis for a request for en banc consideration at this stage of the appeal or at any time," she wrote. "His arguments in the motion relate to the substance of matters that the board concluded it did not need to consider and which are therefore outside the scope of the issues on appeal."

She accused Weller of "attempting to use this unemployment appeal to argue allegations of attorney and law firm misconduct that arose outside of the unemployment case, are not within the jurisdiction of the division, and should be raised before the Office of Disciplinary Counsel, not in this unemployment appeal."

In a March filing, the division argued that the Supreme Court should deny Weller's bid to revive his unemployment benefits claim, asserting that the state's Superior Court correctly upheld the denial of pay after he settled whistleblower claims against the firm.

Separation Agreement Dispute

Superior Court Judge Ferris W. Wharton ruled in late November that the board didn't err in determining that a separation agreement between Weller and Morris James, which provided him with one year's salary of $94,450, amounted to severance pay and wages under the Delaware Unemployment Code. Weller argued in an opening brief in February that the Superior Court judge misinterpreted the separation agreement, asserting that the term "wages" was only used as a guide for the settlement payment. He also claimed that Morris James admitted the payment was a settlement, not severance, by failing to correct this assertion during multiple proceedings.

Del Paralegal En Banc Call: Response from Parties

In an email to Law360 on Thursday, Weller called Counihan's letter "strange," stating, "The only party objecting is the DOL, who was not a party to either the settlement agreement or a witness to the referenced misconduct." He added, "It is strange that DOL is doing the bidding for Morris James, while ignoring the fact that the underlying settlement agreement and related briefing dealt with the issue of Morris James and its attorneys violating a Delaware labor law (Delaware Whistleblowers' Protection Act). Perhaps, DOL could be utilizing their efforts in conducting an investigation into those facts, rather than objecting to the purpose of a settlement agreement for which they were not a part of."

Counsel for Morris James and a representative for the state Department of Justice declined to comment.

Weller is representing himself, while the Division of Unemployment Insurance is represented by Victoria W. Counihan of the state's Department of Justice. Morris James is represented by Jennifer C. Jauffret of Richards Layton & Finger PA.