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Christine Parker, Suzanne Le Mire and Anita Mackay, Lawyers, Confidentiality and Whistleblowing: Lessons from the McCabe Tobacco Litigation, 40 Melb U. L. Rev. 999 (2017).

In Lawyers, Confidentiality and Whistleblowing, Christine Parker, Suzanne Le Mire and Anita MacKay make a case for a “gatekeeper of justice whistleblowing obligation” based upon the special relationship of lawyers to their clients and to the law:

… lawyers hold special appeal as potential whistleblowers. They are trained and able to spot illegality and abuses of the justice system. Their duty to the administration of justice and to the court is considered to be paramount; prioritised over the duty to their client. This duty could place a responsibility on the lawyer to respond to, prevent or perhaps expose misconduct that affects the administration of justice. (Pp. 1010-11.)

Having established the obligation, they propose a model for deciding when and how to whistleblow, which contains three “ethical touchstones” to be considered:

First, the relationship between the lawyer whistleblower and the wrongdoer. Secondly, the type of wrongdoing to be disclosed. Finally, the process adopted by a lawyer whistleblower faced with misconduct… (P. 1016.)

The authors draw inspiration for this model from exiting legislation protecting, and even encouraging, whistleblowing in Australia and the USA. However, these statutes only cover a small part of lawyer activity, and the traditional justifications for strict lawyer confidentially informs their interpretation. The authors largely accept the need for confidentiality but contend that a “gatekeeper of justice whistleblowing obligation” is consistent with existing requirements. Nevertheless, they concede that lawyer whistleblowing against their clients is very rare. They argue that change is required to rules of professional conduct to provide clear protections so as to encourage lawyer action to fulfil their justice gatekeeping role. They suggest expanding the voluntary exceptions in the rules to “explicitly introduce[e] an exception to confidentiality … where the crime-fraud exception to privilege or the iniquity rule exception to breach of confidence would apply.” (Pp. 1049-55). Parker et al also propose that this discretionary breach of confidential client information be made to an independent lawyer regulator for investigation. (P. 1045.)

The authors are particularly concerned about deliberate abuses by well-resourced corporate clients as exemplified in their case study from the Australian chapter of the “tobacco files.” In the first test case against a tobacco company for smoking-related disease it was revealed that its lawyers had for many years “warehoused” hundreds of thousands of incendiary documents while their clients destroyed the originals, and now claimed they were privileged. (Pp. 1002-03.) The case dragged on for years with many interlocutory skirmishes, and the lead plaintiff died prior to settlement. On the evidence before them, courts ultimately condoned the “document management” practice, and the tobacco lawyers who took part weren’t investigated or sanctioned. Several years after the case, a concerned partner who worked for the firm representing the tobacco company provided documents to the media and to opposing lawyers revealing more about his firm’s and its client’s activities. The authors use this case to work through their decision-making model for whistleblowing. At first glance, a system designed to hide documents from evidence is a clear breach of professional norms which ought to, and could ethically, be exposed. However, the article illustrates how the contours of ethical whistleblowing even in this case can be complex and arguable.

The authors suggest that, for such outside counsel of a misbehaving client, as well as for lawyers vis a vis their misbehaving law firm, there is a “strong argument” to whistleblow based on their unparalleled “relationship” access to such knowledge – the first ethical consideration. Yet they conclude that under existing legal and ethical regimes “both insider and outsider lawyers are in need of protection.” (P. 1029.)

They then turn to the type of wrongdoing required to activate whistleblowing obligations. Under existing rules, some client wrongdoing can be exposed. However, in the tobacco example, there was no court finding of illegality of action or purpose by the client or “imminent harm” caused. Thus, while the whistleblowing partner explained his actions as legally justified under common law exceptions to privilege (for iniquity or fraud), and that it was an ethical breach of confidentiality in the ‘public interest’, he was on uncertain professional ground. The authors argue that this leaves us with an unsatisfactorily narrow set of client activities that are likely to be revealed. Conduct rules therefore need to expressly permit exposure of actions that prejudice the administration of justice.

This takes us to the final aspect – process. Gatekeeper whistleblowing must be carefully constrained to ensure the lawyer “only leak[s] confidential information where it is ethically justified to do so and do[es] not unnecessarily breach other ethical obligations in the process.” (P. 1041.) The process is to: first “use judgement and [be] accurate in [the] assessment of any wrongdoing”; “minimise the breach of loyalty” by making it the last resort and use institutionalised avenues available where possible; and “fairness of accusation” such that it is proportionate to the public harm revealed. (P. 1042.) In the tobacco client case, the whistleblower had strong evidence and an apparently genuine concern about a lack of public knowledge about how the justice system may be misused in the future. However, he went to the media, and he blew the whistle years after the lawsuit was resolved. The authors rather ambivalently conclude: “On the best interpretation then, [the partner’s] leak potentially created a more open, fairer, democratic discussion about what behaviour in litigation was and was not appropriate.” (P. 1048.) Even by their proposed model, people may argue about whether the partner’s actions were ultimately justified.

The article undertakes a important project to encourage and enable lawyers to protect the fair working of the justice system. They rightly concede that application to other contexts rather than corporate client abuses may need more consideration. To my mind, they succeed in framing a coherent professional obligation to the ethical clarity needed for more lawyers to expose misconduct by clients and their firms. They then neatly distill the whistleblowing literature to formulate a simple and practical model for that lawyer to apply in fulfilling this obligation.

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Cite as: Francesca Bartlett, Framing a “Gatekeeper of Justice Whistleblowing Obligation”, JOTWELL (January 17, 2018) (reviewing Christine Parker, Suzanne Le Mire and Anita Mackay, Lawyers, Confidentiality and Whistleblowing: Lessons from the McCabe Tobacco Litigation, 40 Melb U. L. Rev. 999 (2017)),