An unusual battle has been playing out for months between Wilson Elser Moskowitz Edelman & Dicker and a former partner, Kym Cushing, who has accused the firm of a litany of offenses and is now facing possible suspension by state disciplinary authorities.
Cushing, a Las Vegas-based former equity partner at the Am Law 200 firm, claimed in a demand letter to Wilson Elser that the firm failed to support him while he needed treatment for alcohol abuse, fired him, and then engaged in a smear campaign to make sure his multimillion-dollar book of business with corporate clients didn’t move to his next firm.
Wilson Elser, meanwhile, reported to Nevada attorney regulators that Cushing attempted to steal firm funds, leading the Nevada bar to immediately seek his suspension. In March, the Nevada Supreme Court imposed conditions on his practice.
While alcohol abuse in the legal profession is unfortunately common—up to a third of practicing attorneys are problem drinkers, one study found—it is rare for a dispute involving a partner’s alcohol use to become public. It’s even rarer for a partner to acknowledge a self-described drinking problem, much less to cite alcoholism in backing a claim against a law firm.
According to a May 12 demand letter sent to Wilson Elser, Cushing said he was one of the most profitable attorneys in the firm’s Las Vegas office, which he joined in June 2005. Cushing developed new relationships with large national clients, when he “successfully marketed” Costco, Xerox, Target, Best Buy, ConAm Management, Mears Transportation, Forest City Enterprises, Sysco Transportation, Canal Insurance and Knight Transportation, his letter said. His portable books of business was up to $3 million, the letter said.
But the stress of being the “go-to attorney” to fix problem cases became too much, and he developed an alcohol dependency, which the firm was well aware of, the letter said. A life-long incurable illness made problems worse, he said.
Cushing’s demand letter said he told firm leaders of the “deterioration of his physical and mental health on many occasions over the last five years,” to no avail. “It was obvious to those that worked closest with Mr. Cushing that something went horribly wrong, but nothing was done,” his letter said.
In early 2018, he said, he learned his salary would be cut by 33 percent, and although he had been anticipating a $250,000 year-end distribution, he learned he wouldn’t receive anything.
“Mr. Cushing panicked and due to the stress of the situation, Mr. Cushing essentially stayed intoxicated between January 4, 2018, to February 9, 2018,” his attorney wrote in the demand letter. “In his drunken stupor,” his letter said, Cushing wrote three checks on the firm’s operations account totaling $7,200 and deposited the checks in his personal account.
Because Cushing didn’t submit the proper paperwork, the bank didn’t honor the checks, the letter said. The checks were not drawn on client trust accounts, the letter said. Within days, “still in his drunken stupor,” Cushing revealed to the firm “that he had an alcohol dependency,” his letter said, adding that, “In response, he was informed that he either could resign or be terminated.”
Cushing asserted that Wilson Elser then engaged in a smear campaign with his next firm, Lewis Brisbois Bisgaard & Smith, and also with his corporate clients, to make sure his business didn’t leave with him. Cushing alleged the firm’s leaders contacted his clients and revealed confidential and “outright misleading information.” The firm also called Lewis Brisbois’ general counsel, informing that firm of his disability, his illness and the circumstances of his firm exit, Cushing claimed.
Lewis Brisbois “terminated Mr. Cushing because of the information [Wilson Elser general counsel Noelle] Berg provided,” said the demand letter. (Lewis Brisbois’ general counsel, Jana Lubert, declined to comment.)
“This is one of the most egregious cases of age and disability discrimination and retaliation we have ever had the misfortune to encounter, and if we cannot get this matter resolved, we will file a lawsuit,” said the demand letter, written by his attorney, Jenny Foley of HKM Employment Attorneys, and seeking $5 million from the firm. “[Wilson Elser] ruined his reputation in the Las Vegas legal community with its malicious actions.”
Documents in the Nevada disciplinary proceedings present a different narrative. When confronted by his superiors about the checks, Cushing “concocted an elaborate story about a fictitious expert witness on a case to explain the checks,” wrote state bar officials, after receiving a letter from Wilson Elser about the events.
When Wilson Elser determined Cushing fabricated an expert witness, Cushing then wrote a letter to firm leaders that said he tried to take the money to cover gambling losses and that he had a serious problem with alcohol, consuming large quantities of hard alcohol on a daily basis, according to disciplinary documents.
In his letter, Cushing said he was “under tremendous pressure and stress” after taking on some cases, and he turned to alcohol to cope, according to the disciplinary records. “I never asked anyone” at HR about resources that may be available to help, the letter said. “I was too embarrassed.”
“I love working at Wilson Elser,” said the letter, reportedly sent in early February. “I am sincerely asking for help at the lowest point in my life, and I ask that you at least give me the chance to get back on track before asking me to resign.”
The next day, Berg, the general counsel, told Cushing the firm would seek his expulsion from the partnership. “While we appreciate your candor,” Berg told Cushing, “your admission of attempting to steal firm funds, in addition to other attempts to defraud the firm, renders your continuation as an equity partner untenable.”
Berg said if Cushing resigned immediately, the firm would recommend to its executive committee the immediate disbursement of part of his capital funds and to pay for a portion of a 30-day treatment at a clinic in Minnesota. Cushing resigned the same day.
The State Bar of Nevada, after receiving a grievance letter from Wilson Elser about the checks and Cushing’s conduct, filed an emergency petition to temporarily suspend Cushing, stating he “engaged in illegal conduct” through attempted theft and embezzlement of funds from Wilson Elser.
The Nevada Supreme Court in March denied the petition. The petition documents “raise serious questions about Cushing’s honesty, alcohol use and gambling,” the Nevada court said, but “it does not appear that Cushing has engaged in any misconduct that threatens harm to any clients.”
Still, the court imposed conditions on his practice, including that he has no access to employer funds or client property; that he report to the Nevada Lawyers Assistance Program and comply with treatment recommendations; submit to random alcohol and drug testing; obtain a mentor who will report to the state bar on his compliance; and that he disclose the order and circumstances surrounding this matter to any current or future employer in the legal field.
The Nevada state bar has filed a formal complaint and continues to seek his suspension.
In a statement, Cushing said he is “fighting the Nevada state bar because this grievance was initiated by Wilson Elser” after he left the firm. “This is another example of how far Wilson Elser will go to try and destroy my legal career,” he said.
Cushing said there are factual errors in the state bar’s complaint, and “statements and conduct have been taken out of context and the motivations of those behind this filing were never considered.”
Meanwhile, Wilson Elser executive committee member David Eisen on May 18 rejected Cushing’s demand for a $5 million settlement, according to documents obtained by ALM. Eisen’s response letter attached a demand for arbitration against Cushing before the American Arbitration Association. “Your letter contains a host of misstatements, and you appear to be entirely misinformed regarding Cushing’s activities,” Eisen said.
In a statement to ALM, Wilson Elser said Cushing’s allegations against the firm “are entirely false and baseless. These fictional allegations were asserted only after the firm fulfilled its reporting obligations, including to the Nevada State Bar, regarding the circumstances surrounding the withdrawal of Mr. Cushing from the partnership. The Nevada Bar independently investigated and filed a formal complaint against Mr. Cushing for conduct relating to his departure.”
The firm added that it “fully expects to prevail” in its arbitration against Cushing. It said has “acted and will continue to act in accordance with the highest standards of integrity, professionalism and fiduciary duty to protect the interests of its clients, its partners and its employees.”
Wilson Elser said it could not comment on health or addiction concerns related to specific firm personnel. The firm said that when it becomes aware that someone may have alcohol or drug issues, it works with the individual to utilize the firm’s employee assistance program and health benefits and often refers the individual, in conjunction with attorney assistance programs, to an addiction treatment center.
Cushing’s attorney, Foley, said her client is receiving treatment and is “doing very well.” She said last month she was hopeful the dispute could be resolved without a lengthy ordeal.
“There are so many things that went horribly wrong in his employment and were handled so badly,” she said.