Guest article by Sybille Raphael, Legal Director, Protect
Whistleblowing is often the easiest, quickest and simplest way to detect evidence, and deter wrongdoing. Whistleblowers are obviously a key resource to regulators who have to rely in large part on organisations self-regulating – and rely on whistleblowers to raise the alarm when self-regulation fails. They are also key to ensuring the rule of law – our regulations are meaningless if people can’t report when they are breached.
Lawyers are uniquely well placed to spot wrongdoing. They are often able to have a helicopter view of the organization and the knowledge of what constitutes a breach of the law. But, many lawyers view whistleblowing as in practice not an option for them because of the duty they owe to their client – and, in the case of in-house solicitors, their employer. It is a cornerstone of our legal system that everyone should be able to get candid advice from their lawyer in a safe way – this is “legally privileged” advice. The usual law protecting whistleblowers won’t apply in cases where legal professional privilege applies. The statutory whistleblowing protections are only available if the information disclosed was not obtained in the course of obtaining legal advice, and the information could be the subject of a claim of legal professional privilege (Section 43B(4) of the Employment Rights Act).
This is particularly problematic for in-house solicitors. At least, solicitors working in a law firm can turn to their own regulator, the SRA, when they spot wrongdoing by their employer. The SRA can (and does) waive legal professional privilege when it needs to – but other regulators cannot. The problem is that the SRA is only competent when the wrongdoing is by a solicitor or a law firm. For in-house lawyers, their employer won’t be regulated by the SRA.
If an in-house lawyer raises a concern externally, to the extent the facts they are exposing were covered by legal professional privilege, they are likely to be in breach of legal professional privilege and may have a breach of contract claim brought against them by their employer and even run a risk that they could be struck off the professional register. Even an internal disclosure carries problems: providing privileged advice to an employer won’t be counted as a ‘protected disclosure’. An in-house lawyer telling an employer something they don’t want to hear may not be protected against detriment/dismissal under whistleblowing law (The Public Interest Disclosure Act (PIDA)) if the employer retaliates.
All this means that in-house lawyers can end up in real Catch-22. On the one hand, they may not be protected by whisteblower legislation. On the other hand, they are under a regulatory duty to uphold the rule of law and act with integrity and independence. They also have a duty to report wrongdoing in some circumstances
As you can see, whistleblowing as a solicitor can be a minefield. Protect, the UK whistleblowing charity, has unique expertise on how this works. We were instrumental in pushing for the UK to adopt the law protecting whistleblowers in 1993 and have grappled with this law ever since. Protect know how it works (or does not work) in practice. To date, we have individually advised more than 50,000 whistleblowers on our free, confidential and independent Advice line. We’ve written detailed guidance exploring the various issues at play, from how the whistleblowing laws apply (or do not apply) to the regulatory sanctions that solicitor whistleblowers can face. Hopefully, this will give solicitors much-needed practical advice on what is often an incredibly stress-inducing topic.
We believe the law should be clarified. At the very least PIDA, the law protecting whistleblowers, should apply when a disclosure is reported internally – and the professional guidance from the regulators should be much clearer and more precise. In the meantime, we have set out practical suggestions as to what you can put to your employer. This includes referencing the SRA principles in your employment contract, clarifying your client group and having a whistleblowing champion at board level you can go to.
Sybille is also a member of FTSE & Friends – the Crafty Counsel Community group for in-house legal professionals working in large organisations or government.