Originally published by Rita Handrich.
There’s a really interesting article in SSRN on the ethical issues surrounding lawyers blowing whistles. The authors (both law professors) comment that the attorney is in the perfect position to have information a whistleblower would need to file a qui tam suit and neither the False Claims Act (aka the whistleblower act) nor Dodd-Frank (which allows whistleblowers to keep their identity secret) specifically address the question of whether lawyers can take advantage of the whistleblower incentives.
The authors offer a clear primer on the False Claims Act and examine relevant ethics law for attorneys when considering whistleblowing (like the obligations of confidentiality and ethical duties to both current and former clients) and whether there are prohibitions in the statute itself that would keep lawyers from benefiting financially from blowing the whistle. They address the conflicts between state and federal rules and laws and question whether there are situations in which one would “trump” the other. Along the way, they identify a few lawyers who’ve attempted (unsuccessfully) to prevail in qui tam suits and discuss the personal and professional costs of blowing the whistle. The authors then move on to consider Dodd-Frank and again, offer a clear primer on the program. They cover the same issues under Dodd-Frank as they did with the False Claims Act.
Finally, the authors devote an entire section to “choice of law” referring to the state ethics rules in contrast to FCA or Dodd-Frank. They comment that ascertaining which law applies in cases where a whistle has been blown by an attorney is both complex and murky. They offer a number of case descriptions to illustrate the complexities therein.
Ultimately, the authors pose four questions they see as key to determining whether attorneys can receive an award under a federal program for whistleblowers without violating their fiduciary responsibilities or their rules of professional conduct. The questions are quoted below:
Under what circumstances may a lawyer disclose a client’s confidential information to others?
Under what circumstances does a lawyer’s obligation of loyalty preclude acting adversely to a client, including seeking personal benefit when engaging in conduct that is permissible for other purposes, such as to prevent or rectify harm to another?
Are any of a lawyer’s obligations under state law preempted by federal law that provides for financial incentives for whistleblowers?
Which state’s law applies to lawyers who move from state to state as they work for national companies?
This is a thoughtful examination of a thorny ethical issue. The authors offer no clear answers and no judgment on whether an attorney should be allowed to financially benefit from whistleblowing. This is an attempt to explore whether an attorney can benefit financially from whistleblowing. The paper is designed (at least to our eye) to make you think and to become aware of how complex the issues really are when attorneys consider blowing the whistle on either current or former clients.
Clark, K., & Moore, N. (2015). Buying Voice: Financial Rewards for Whistleblowing Lawyers SSRN Electronic Journal DOI: 10.2139/ssrn.2562610
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
from Texas Bar Today http://ift.tt/1HUZ4zj
via Abogado Aly Website
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