Washington Lawyer - May/June 2024 - 42

SPEAKING OF ETHICS
The Lawyer as
Whistleblower
By Erika Stillabower
J
oe Lawyer has a conundrum
on his hands. He recently
finished a consultation with
Sarah, a prospective client who
was determined to right a serious
wrong.
Sarah had uncovered compelling evidence that
her employer, a large government contractor
in Washington, D.C., had knowingly been overcharging
the government for IT services while
providing equipment that failed to meet the
contract's technical specifications and, even
worse, was vulnerable to hacking.
Sarah is an ideal whistleblower in many ways -
she is forthright, genuine, and feels a deep sense
of responsibility to fix the situation. Sarah said
that she made several attempts to focus management's
attention on the overbilling and the
security defects, but no corrective action was
taken. Sarah was adamant that she was not looking
for money or recognition; she just wanted to
know the proper channel to use in making an
anonymous report to the government.
The catch? Sarah is a lawyer. Her title is " compliance
counsel. " When Joe flagged this issue for
Sarah, she made the point that she is not within
the office of general counsel and that she has no
role in advising the company on any of these issues.
She was astonished when Joe told her that
before recommending any course of action, he
first had to evaluate any ethical limitations on
her ability to redress the wrongdoing.
REPRESENTING AN ENTITY
Lawyers must represent their clients' interests
within the bounds of the law and the D.C. Rules
of Professional Conduct. For a lawyer like Sarah
who is employed by a company, Rule 1.13 (Organization
as Client) is a good place to start the
analysis of her ethical obligations. As compli42
WASHINGTON LAWYER
* MAY/JUNE 2024
ance counsel, she represents the company, but
only through the direction of a " duly authorized
constituent " - a person who can direct
the lawyer with respect to the client entity's
legal objectives.1
If Sarah were to take an action
on behalf of the company (such as making an
anonymous report) without the knowledge or
approval of management, she would effectively
be substituting her own judgment for that of
her client, a significant disruption to the attorney-client
relationship.2
In this scenario, Sarah has not been asked to
take any action, such as certifying the client
company's compliance with the contract to the
contracting agency, that would itself amount
to a violation of the Rules. In such instances,
Rule 1.2 (Scope of Representation) provides
clear guidance to the lawyer:
(e) A lawyer shall not counsel a client to engage,
or assist a client, in conduct that the
lawyer knows is criminal or fraudulent, but a
lawyer may discuss the legal consequences
of any proposed course of conduct with a
client and may counsel or assist a client to
make a good-faith effort to determine the
validity, scope, meaning, or application of
the law.
Rule 1.2(f) further instructs the lawyer to " consult
with the client regarding the relevant limitations
on the lawyer's conduct " when the client
asks the lawyer to engage in illegal or
unethical conduct.3
But when a lawyer like Sarah becomes aware of
misconduct in a corporate setting, the applicable
rule is different:
If a lawyer for an organization knows that an
officer, employee, or other person associated
with the organization is engaged in action,
intends to act or refuses to act in a
matter related to the representation that is
a violation of a legal obligation, or a violation
of law which reasonably might be imputed
to the organization, and is likely to result
in substantial injury to the organization,
the lawyer shall proceed as is reasonably
necessary in the best interest of the organization.
Unless the lawyer reasonably believes
that it is not necessary in the best
interest of the organization to do so, the
lawyer shall refer the matter to higher authority
in the organization, including, if warranted
by the circumstances, to the highest
authority that can act on behalf of the organization
as determined by applicable law.4
Fortunately, it appears that Sarah's actions to
date have been entirely consistent with Rule
1.13(b) - in fact, she has the ability to report
higher within the client organization if she believes
doing so is in the best interests of her
client. But unlike the ABA Model Rule, the D.C.
version of Rule 1.13(b) also provides a clear limit
on how far she can go - to the most senior
authority within the company, which in most
cases is the board of directors or the equivalent.
In other words, Sarah can report up, but
not out, absent any statute mandating reporting
or substantive law to the contrary.5
DUTY OF CONFIDENTIALITY
Because Rule 1.13(b), standing alone, does not
allow for reporting misconduct outside of the
organization, lawyers who are considering that
step must take into account Rule 1.6's restrictions
on a lawyer's ability to reveal a client's
confidential information.6
Rule 1.6 occupies a
position of primacy among the D.C. Rules of
Professional Conduct in that it limits disclosures
that are otherwise mandatory under other
Rules, such as reporting misconduct by other
lawyers (Rule 8.3), or even candor to a tribunal
(Rule 3.3).7
In the whistleblower context, however, Rule 1.6
- specifically paragraphs (c) and (d) - provides
important, if narrow, exceptions.8
Rule
1.6(c) allows lawyers to reveal confidential infor
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