06 June 2017

Legal Practitioner Whistleblowing

'Lawyers, Confidentiality and Whistleblowing: Lessons from the McCabe Tobacco Litigation' by Christine Parker, Suzanne Le Mire and Anita Mackay in (2017) 40(3) Melbourne University Law Review 999 comments
 In 2006, Christopher Dale leaked information about Clayton Utz’s internal investigation into the events surrounding the destruction of documents that would have been relevant and damaging to their client, British American Tobacco, in the 2002 McCabe litigation. This article uses this case study to examine whether lawyers can and should act as whistleblowers against colleagues and clients who abuse the administration of justice. We argue that although lawyers must have strong obligations of confidentiality to clients and others, their role as gatekeepers of justice also demands that they be allowed to blow the whistle when they have information about clients or other lawyers using legal services to subvert the administration of justice, and be protected when they do so. The article evaluates the circumstances in which such whistleblowing is appropriate and makes suggestions about how the law should be reformed by reference to three touchstones: the nature of the relationship between the lawyer and the wrongdoer; the nature of the wrongdoing itself; and, the process used to disclose the wrongdoing.
The authors state
Readers of The Sunday Age on 29 October 2006 could hardly have missed the ‘exclusive’ with the headline: ‘Exposed: Dirty Tricks behind Top Lawyers’ Plot to Deny Justice to Cancer Victims’. A follow-up headline was also attentiongrabbing: ‘Justice Denied: How Lawyers Set Out to Defeat a Dying Woman’. The articles detailed the outcome of an internal Clayton Utz investigation highly critical of two senior lawyers in that firm who had represented the British American Tobacco Company Services Limited (‘BATAS’) in litigation. Documents relating to the investigation had been leaked by an unnamed source. The case in question was a lawsuit brought by Rolah McCabe, who was suffering through the final stages of smoking-related cancer. The source of the newspaper stories was ultimately revealed to be Christopher Dale, formerly a partner with Clayton Utz. Dale had helped to conduct the internal review.
Dale’s leak raised the question of whether lawyer whistleblowing to protect the administration of justice is, or should be, permissible. There has, however, been no authoritative resolution of the legal and ethical appropriateness of Dale’s whistleblowing. This article argues that it is appropriate for lawyers to whistleblow when the administration of justice is under threat, and that regulatory changes to facilitate this process are warranted.
Part II of this article briefly summarises the facts of Dale’s leak5 and its significance for the administration of justice. In Part III, we explain the ethical and regulatory significance of whistleblowing, its characteristics, and the issues it raises for lawyers specifically. We argue that lawyers are justified, and indeed obligated, in whistleblowing where they have information about clients or other lawyers using legal services to subvert the administration of justice. We contend that whistleblowing should be permitted in circumstances where courts or regulatory authorities would refuse to uphold client legal privilege due to conduct that would fall into the fraud exception. We go on to suggest, based on the literature on whistleblowing, that there are three relevant elements in considering the appropriateness of whistleblowing, and apply these to lawyer whistleblowing: the nature of the relationship between the lawyer and the wrongdoer; the nature of the wrongdoing itself; and the process that the lawyer whistleblower uses to address and ultimately disclose the wrongdoing. Parts IV, V and VI of the article consider each of these three key elements in turn using Dale’s case to illustrate the legal, ethical and practical difficulties for lawyers considering whistleblowing to protect the administration of justice. On the basis of this analysis, we suggest changes to the professional conduct rules to allow and protect gatekeepers of justice whistleblowing.
They conclude
The disclosure of wrongdoing is controversial since the lawyers’ obligation to keep secret confidences is so intertwined with the lawyer’s identity as to be its ‘defining, paradigmatic feature’. This article has argued by contrast that lawyers are justified, and indeed obligated, to whistleblow where they have information about clients or other lawyers using legal services to subvert the administration of justice. This is an essential element of the lawyer’s duty to the administration of justice and role as a gatekeeper of justice. It also accords with current approaches to regulatory policy and democratic control in which the possibility of leaks and whistleblowing is an essential aspect of the way in which both public and private institutions are subject to democratic control and accountability. Yet, as we have shown, lawyers are largely unprotected by the legislation introduced to encourage appropriate whistleblowing and are thus vulnerable to reprisal including professional discipline if they do whistleblow. Moreover, lawyers lack guidance from professional conduct regulation and education as to when it is and isn’t appropriate to whistleblow. The case of Dale’s leak of internal law firm information regarding whether his own law firm colleagues had assisted their tobacco company lawyer to conceal documents and mislead the court about the extent of their concealment illustrates the difficulties faced by potential gatekeeper of justice whistleblowers, and the complexity of navigating the legal rules around confidentiality and privilege when whistleblowing.
Generally, where officers and employees of organisational clients engage in wrongful and harmful conduct, lawyers should have little ethical difficulty in fulfilling their obligations to justice and to the client by internal whistleblowing; reporting up the organisational hierarchy until something is done to correct the situation. The challenge comes when lawyers are asked to assist their organisational clients to avoid the scrutiny of the justice system or where they discover that their colleagues, clients or lawyers on the other side, or other lawyers that they come into contact with, have breached their duty to the administration of justice.
We have argued that the position in general law under the iniquity rule exception to breach of confidentiality actions, the public policy exception to breach of contract, and the crime–fraud exception to privilege generally allows whistleblowing in such situations, provided an appropriate process is followed. It is, however, difficult, uncertain and probably unreasonable to expect potential lawyer whistleblowers to navigate and rely on the complex and sparse case law in the area. Professional conduct rules recognise no exception for gatekeeper of justice whistleblowing (except for a vague reference to the general law of confidentiality) and provide no guidance as to an appropriate process to follow for any would be whistleblower. Existing legislative whistleblower protections for public servants and corporate employees provide only partial protection and guidance for lawyers. The PID Act does not protect lawyers not contracted to a government agency and the Corporations Act whistleblower protections apply only to corporate employees and in relation to wrongdoing that breaches the Corporations Legislation. We have, therefore, argued that the professional conduct rules should be changed to provide for a gatekeeper of justice whistleblowing exception. This might be most simply done by explicitly introducing an exception to confidentiality in the conduct rules where the crime–fraud exception to privilege or the iniquity rule exception to breach of confidence would apply. We also suggest that professional conduct rules and regulation should provide protection to lawyer whistleblowers that mirrors the type of protection offered by the PID Act, along with guidance as to the appropriate process for whistleblowing that also mirrors the PID Act and observations in the case law concerning the iniquity rule. Finally, we suggest that legal services regulators and/or legal professional bodies should introduce mechanisms by which whistleblower reports concerning breaches to the duty to the administration of justice can be received and investigated in a confidential and effective way so that lawyers do not have to resort to the media.
Furthermore, detailed work to define precisely how our proposed reforms to conduct rules and regulation to allow and protect whistleblowing will work may be necessary. But this should not detract from the urgency of introducing whistleblower exceptions to confidentiality and protections to enable lawyers to act as gatekeepers of justice in relation to their colleagues and organisational clients. In this time of constantly threatening financial, environmental and social crisis, it is absolutely urgent that we do everything we can to enhance the democratic control and just accountability of large and powerful organisations in our society.
'Secrecy, Confidentiality and "Dirty Work": The Case of Public Relations' by Sue Curry Jansen in (2016) 1(1) Secrecy and Society comments 
The prominent midcentury American sociologist Everett C. Hughes wrote a ground-breaking essay on the “dirty work’”that is part of every society. He begins his argument with a discussion of extreme cases - genocide in Nazi Germany, segregation maintained by lynching in the American South and apartheid in South Africa - but then asserts that these extremes point to “a phenomenon common to all societies”:
Almost every group which has a specialized social function to perform is in some measure a secret society, with a body of rules developed and enforced by the members and with some power to save its members from outside punishment.
Viewing this enforcement power as a paradox of social bonding, Hughes maintains that, “A society without smaller, rule-making and disciplining powers would be no society at all.” Hughes further contends that “good people” generally do not want to know what the enforcers who do a society’s dirty work actually do. They look away, keep silent or repress knowledge that “would threaten the group’s conception of itself” if subjected to open discussion.
To break the silence is to betray the group. This is why whistleblowers - no matter how honorable their motives - are usually ostracized by their former compatriots and generally treated with suspicion even by those whose values and interests they are trying to defend.
The conspiracy of silence around societal dirty work allows history to be laundered and salutary myths to prevail. While democracies formally abhor government censorship and value transparency and publicity as essential to creating an informed citizenry, they also countenance various forms of censorship during wartime and other national emergencies. All of the advanced democracies also now routinely exercise forms of information control during peace time in the name of national security, broadly conceived – whether through regimens of classified information, intelligence agencies, surveillance or other stratagems.
Government agencies and businesses, which do society’s dirty work, frequently develop jargons of evasion, which cover their efforts with a veneer of normalcy that renders them less visible. Bureaucracies institutionalize these euphemisms. Nowhere is this more apparent than in military and intelligent agencies. The U.S. military, for example, has developed an elaborate vocabulary of evasion to cover up the dirty work that is part of every war. Words such as “collateral damage” (civilian casualties), “soft targets” (cities), drone warfare (killing people by remote control) shield good people from having to acknowledge their complicity in morally contentious policies and actions.
While democracies have to stretch language and logic to paper over the dirty work that, according to Hughes’ argument, is necessary to their survival, corporations operate under different rules. They are private enterprises, accountable primarily to their shareholders, while subject to various forms of government oversight and regulation, depending upon their locations and reach of their operations. Secrecy is, however, assumed to be an integral part of the corporate modus operandi. It is considered essential to protect trade secrets, negotiate deals and maintain competitive advantage. Like governments, corporations also have their disciplinarians and enforcers who do their dirty work.
This article briefly examines the origins and development of the dirty work that is done by some forms of corporate PR. It focuses primarily on the U.S., which invented corporate PR and exported it to the rest of the world where in recent decades its resources have been mobilized and deployed in the service of neoliberal globalization.