United States: Yes, Attorneys Too Can Blow The Whistle: But When And How Hard?

According to the United States Securities and Exchange Commission ("SEC" or the "Agency"), an attorney – or any individual, for that matter – should not have to first report misconduct to the SEC to fall under the protections of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank" or the "Act"). In an amicus brief submitted in late March 2016, the SEC requested a broader reading of Dodd-Frank in support of a former in-house attorney for Vanguard Group Inc., a mutual fund company. The attorney, David Danon, had filed an action in the United States District Court of Philadelphia in December 2015 claiming that Vanguard had wrongfully terminated him after he raised concerns internally about alleged tax violations.

Under the Dodd-Frank whistleblower program, an individual who reports violations of law or misconduct is entitled to a monetary incentive for reports leading to a successful SEC enforcement action that recovers above $1 million in monetary sanctions and protection under the anti-retaliation provisions of the Act. Previously, these incentives and protections were understood to apply only to those who first reported violations of law or misconduct to the SEC. Danon, however, did not reach out to regulators until his employment was terminated after he allegedly reported the wrongdoing internally. In its brief to the district court, the SEC advocated for a much broader reading of the Act regardless of when the report is made to the SEC to avoid creating a two-tiered system that discourages internal reporting. The SEC noted that internal reporting is an "important component of the overall design of the whistleblower program." Additionally, the SEC argued that if its interpretation was not adopted, its authority to pursue enforcement actions against employers who retaliate against employees who report internally would be "substantially weakened." The Agency sought parity for individuals regardless of when they blow the whistle and to whom they report first. The Second and Fifth Circuits are currently split on the proper interpretation of the Act, leading to the question of whether this issue may one day reach the Supreme Court.

In the attorney context, however, the case raises an entirely different set of issues that was not the focus of the SEC's brief – namely, what are the ethical implications when in-house counsel blows the whistle on its current or former employer? These confidentiality issues can arise when in-house counsel could breach attorney-client privilege by exposing confidential information in its report to the SEC about the misconduct, or in its own defense, if the attorney's employment is terminated and the attorney brings suit. Danon's dilemma falls directly into the second scenario, as a New York state court judge has already dismissed his case for whistleblower bounty, finding that Danon had violated ethics rules by disclosing confidential tax information.

The rules surrounding attorney-client privilege and lawyer-client confidentiality are central to the lawyer-client relationship. Although the SEC did not substantively address this issue in its brief, it does highlight the tension between the government's interests in exposing and eliminating misconduct and the competing interest to uphold one of the most sacred elements of the lawyer-client relationship. It also mentioned that under the Sarbanes-Oxley Act of 2002, Congress directed the SEC to issue rules requiring attorneys practicing before the SEC to report material violations of securities laws or any breach of fiduciary duty to certain company officials. Under Sarbanes-Oxley, attorneys are not required to make reports to the SEC and may be precluded from doing so because of ethical obligations to their clients. Additionally, the SEC will deny whistleblower protection to attorneys who learned the information they wish to report through a communication subject to attorney-client privilege or through legal representation of a client. The SEC also recognizes that under both state and federal law, there are exceptions to this rule that allow an attorney to report in certain circumstances, for instance, if the attorney knows securities laws are being violated and the result will cause substantial financial injury to investors. The difficulty is that states differ in their confidentiality rules, making this an issue that does not lend itself to definitive answers. This challenge is further heightened when considering the potential conflict an attorney could face if incentivized by the bounty awarded by the SEC.

Bottom Line

It is becoming increasingly important for employers to provide processes for employees to report wrongdoing and misconduct internally, with the understanding their employer will not retaliate against them for such action. Training on the whistleblower and retaliation laws is key. Congress has taken steps in recent years to encourage internal company reporting and compliance efforts with its amendments to several securities laws. As the SEC noted, "these internal reporting processes can help companies to promptly identify, correct, and self-report unlawful conduct by officers, employees, or others connected to the company." Additionally, having the proper processes in place to report misconduct internally could help prevent an employee from diving into the murky waters of attorney-client privilege and confidentiality violations if the employee who wishes to make the report happens to be the company's own in-house counsel. BakerHostetler can provide training on these issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions