Article
Lawyers as Whistleblowers: Recent Developments
PLUS Journal
(2016)
Abstract
Several courts have recently addressed the issue of whether lawyers may serve as whistleblowers against their former clients when doing so results in the disclosure of confidential client information. The Second Circuit, in Fair LaboratoryPractices Associates v. Quest Diagnostics, held that a lawyer disclosed far more confidential information than was necessary when bringing a qui tam whistleblower case against a former client under the False Claims Act. More recently, in a highly-publicized case against mutual fund giant Vanguard Group, a New York state court judge followed Fair Laboratory Practices to dismiss a qui tam claim brought by a terminated in-house tax lawyer under New York law. A similar claim brought against Vanguard by the same lawyer was dismissed by a federal judge in the Eastern District of Pennsylvania, citing collateral estoppel grounds.
These recent cases have important implications for employer liability. In addition, there could be potential professional liability for lawyers who are found to have breached their professional duties to their clients. A client could have a potential claim against a lawyer for precipitous disclosure of confidential information. Conversely, an employer who retaliates against a lawyer-whistleblower could face regulatory fines and civil liability. Moreover, a lawyer who accepts a whistleblower bounty from the government could potentially face a conflict of interest claim from an erstwhile client who contends that its confidences were revealed in exchange for a government payout.
Keywords
- Whistleblowers,
- lawyers,
- legal ethics,
- confidentiality,
- rule of professional conduct 1.6,
- vanguard investments
Disciplines
Publication Date
December, 2016
Citation Information
Barry R. Temkin. "Lawyers as Whistleblowers: Recent Developments" PLUS Journal Vol. XXIX Iss. 12 (2016) Available at: http://works.bepress.com/barry_temkin/45/