Friday, March 6, 2015

Confidentiality Compromised? (On Lawyer Whistleblowing and More...)


In "Financial Awards for Whistleblowing Lawyers" -- Kathleen Clark (Professor of Law, Washington University in St. Louis) and Nancy Moore (Professor of Law, Boston University Schoolf of Law) delve into some interesting questions:
  • "The federal government relies increasingly on whistleblowers to ferret out fraud, and has awarded whistleblowers over $4 billion under the False Claims Act and the Dodd-Frank Wall Street reform and Consumer Protection Act. May lawyers ethically seek whistleblower rewards under these federal statutes?"
  • This article is the first to conduct an in-depth analysis of several questions that are key to determining whether a lawyer may receive whistleblowing award under a federal program without violating state ethics law:
    • 1. When may a lawyer disclose a client’s confidential information to others?
    • 2. When does a lawyer’s obligation of loyalty preclude acting adversely to a client, including seeking personal benefit when engaging in conduct that is permissible for other purposes, such as to prevent or rectify harm to another?
    • 3. Are any of a lawyer’s obligations under state law preempted by the federal law that provides for financial incentives for whistleblowers?
    • 4. Which state’s law applies to lawyers who move from state to state as they work for national and international companies?
On unrelated confidentiality matters, California just issued an ethics opinion: "California Bar issues opinion on whether attorney can refuse to disclose confidential information in support of motion to withdraw from representation" --
  • "The California bar's ethics committee recently issued an opinion (Formal Op. 2015-192) attempting to clarify whether an attorney seeking to withdraw from a litigation for ethical reasons might have grounds for resisting a court order that would require the lawyer to disclose client confidences to a judge who wants more information before ruling on the motion.  Although it admits there is no on-point guidance in California, the committee urged lawyers not to reveal confidential information to support their withdrawal motion. If the judge insists, the committee said, there is no clear legal or ethical authority in California that either permits or forbids an attorney to comply with the court's directive."

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