Katz, Marshall & Banks partner Lisa Banks and associate Matthew LaGarde co-authored an article for Corporate Compliance Insights (CCI) on October 7, 2016, entitled, "When Attorneys and COs Blow the Whistle: Ambiguities and Challenges." In the article, the authors discuss challenges corporate "gatekeepers" such as attorneys and compliance officers face when whistleblowing. "Attorneys and compliance officers...are often in the best position to know of illegalities or wrongdoing in the workplace. Thus they are also in the best position to become whistleblowers and to bring such malfeasance to the attention of government officials. Unlike the average employee, however, who doesn’t necessarily have any legal, ethical or fiduciary constraints on would-be whistleblowing, employees who serve in a gatekeeper role are often limited in what they can say or do in the face of wrongdoing."
Because they are subject to ethical rules of the jurisdiction in which they practice, attorneys often face the most difficult barriers to whistleblowing. "It is universally accepted that attorneys are charged with protecting client confidences, even in the face of known wrongdoing...but such obligations have never been absolute, which is what creates such an uncertain landscape for employers and employees alike." So when can attorneys blow the whistle? The answer is not always clear. "...[W]hile most jurisdictions allow disclosure of information related to an ongoing crime or fraud that involves the use of the lawyer’s services, there remains a strong professional ethos in favor of nondisclosure, and courts in many jurisdictions have emphasized that any such disclosures should be as limited as possible."
The authors concluded, "While few definitive rules exist in this area, one thing is abundantly clear: Pursuing whistleblower claims can be a treacherous task for attorneys and compliance officers...In such a complex area of law, it is critical that employees and employers consult with experienced counsel regarding their obligations and prohibitions." To read the full article, click here.