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The Ethical Boundaries of Attorney Whistleblowers
In recent years, federal legislation has encouraged attorneys to become whistleblowers, first with the rules promulgated by the Securities and Exchange Commission (SEC) under the Sarbanes-Oxley Act of 2002 (SOX) that permit disclosure of client confidential information in certain circumstances and then with the additional whistleblower provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) that create a financial incentive for disclosure of confidential information.
These whistleblower rules are in tension with the lawyer's duties of confidentiality and avoiding conflicts predicated on attorney self-interest. That's because they allow disclosure of client confidential information more broadly than do applicable ethics rules in many jurisdictions, and incentivize disclosure through monetary compensation to counsel.
In light of this tension fostered by the Dodd-Frank incentive program between counsel's loyalty to the client and a perceived societal need to learn of securities law violations, at least one bar association has opined that attorneys may not ethically serve as whistleblowers on their clients. This article describes the variance between SEC whistleblower rules and state ethics rules that led to the October 2013 New York County Bar Association ethics opinion that the federal whistleblower rules create risk of ethics violations such that attorneys should not be financially rewarded for revealing client confidences.
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