'Lawyers, Confidentiality and Whistleblowing: Lessons from the McCabe Tobacco Litigation' by Christine Parker, Suzanne Le Mire and Anita Mackay in (2017) 40(3)
Melbourne University Law Review 999
comments
In 2006, Christopher Dale leaked information about Clayton Utz’s internal investigation
into the events surrounding the destruction of documents that would have been relevant
and damaging to their client, British American Tobacco, in the 2002 McCabe litigation.
This article uses this case study to examine whether lawyers can and should act as
whistleblowers against colleagues and clients who abuse the administration of justice. We
argue that although lawyers must have strong obligations of confidentiality to clients and
others, their role as gatekeepers of justice also demands that they be allowed to blow the
whistle when they have information about clients or other lawyers using legal services to
subvert the administration of justice, and be protected when they do so. The article
evaluates the circumstances in which such whistleblowing is appropriate and makes
suggestions about how the law should be reformed by reference to three touchstones: the
nature of the relationship between the lawyer and the wrongdoer; the nature of the
wrongdoing itself; and, the process used to disclose the wrongdoing.
The authors state
Readers of The Sunday Age on 29 October 2006 could hardly have missed the
‘exclusive’ with the headline: ‘Exposed: Dirty Tricks behind Top Lawyers’ Plot
to Deny Justice to Cancer Victims’. A follow-up headline was also attentiongrabbing:
‘Justice Denied: How Lawyers Set Out to Defeat a Dying Woman’.
The articles detailed the outcome of an internal Clayton Utz investigation
highly critical of two senior lawyers in that firm who had represented the
British American Tobacco Company Services Limited (‘BATAS’) in litigation.
Documents relating to the investigation had been leaked by an unnamed
source. The case in question was a lawsuit brought by Rolah McCabe, who
was suffering through the final stages of smoking-related cancer. The source of
the newspaper stories was ultimately revealed to be Christopher Dale,
formerly a partner with Clayton Utz. Dale had helped to conduct the
internal review.
Dale’s leak raised the question of whether lawyer whistleblowing to protect
the administration of justice is, or should be, permissible. There has, however,
been no authoritative resolution of the legal and ethical appropriateness of
Dale’s whistleblowing. This article argues that it is appropriate for lawyers to
whistleblow when the administration of justice is under threat, and that
regulatory changes to facilitate this process are warranted.
Part II of this article briefly summarises the facts of Dale’s leak5 and its
significance for the administration of justice. In Part III, we explain the ethical
and regulatory significance of whistleblowing, its characteristics, and the
issues it raises for lawyers specifically. We argue that lawyers are justified, and
indeed obligated, in whistleblowing where they have information about
clients or other lawyers using legal services to subvert the administration of
justice. We contend that whistleblowing should be permitted in circumstances
where courts or regulatory authorities would refuse to uphold client legal
privilege due to conduct that would fall into the fraud exception. We go on to suggest, based on the literature on whistleblowing, that there are three relevant elements in considering the appropriateness of whistleblowing, and
apply these to lawyer whistleblowing: the nature of the relationship between
the lawyer and the wrongdoer; the nature of the wrongdoing itself; and the
process that the lawyer whistleblower uses to address and ultimately disclose
the wrongdoing. Parts IV, V and VI of the article consider each of these three
key elements in turn using Dale’s case to illustrate the legal, ethical and
practical difficulties for lawyers considering whistleblowing to protect the
administration of justice. On the basis of this analysis, we suggest changes
to the professional conduct rules to allow and protect gatekeepers of
justice whistleblowing.
They conclude
The disclosure of wrongdoing is controversial since the lawyers’ obligation to
keep secret confidences is so intertwined with the lawyer’s identity as to be its
‘defining, paradigmatic feature’. This article has argued by contrast that
lawyers are justified, and indeed obligated, to whistleblow where they have
information about clients or other lawyers using legal services to subvert the
administration of justice. This is an essential element of the lawyer’s duty to
the administration of justice and role as a gatekeeper of justice. It also accords
with current approaches to regulatory policy and democratic control in which
the possibility of leaks and whistleblowing is an essential aspect of the way in
which both public and private institutions are subject to democratic control
and accountability. Yet, as we have shown, lawyers are largely unprotected by
the legislation introduced to encourage appropriate whistleblowing and are
thus vulnerable to reprisal including professional discipline if they do
whistleblow. Moreover, lawyers lack guidance from professional conduct
regulation and education as to when it is and isn’t appropriate to whistleblow.
The case of Dale’s leak of internal law firm information regarding whether
his own law firm colleagues had assisted their tobacco company lawyer to
conceal documents and mislead the court about the extent of their concealment
illustrates the difficulties faced by potential gatekeeper of justice
whistleblowers, and the complexity of navigating the legal rules around
confidentiality and privilege when whistleblowing.
Generally, where officers and employees of organisational clients engage in
wrongful and harmful conduct, lawyers should have little ethical difficulty in
fulfilling their obligations to justice and to the client by internal whistleblowing;
reporting up the organisational hierarchy until something is done to
correct the situation. The challenge comes when lawyers are asked to assist
their organisational clients to avoid the scrutiny of the justice system or where
they discover that their colleagues, clients or lawyers on the other side, or
other lawyers that they come into contact with, have breached their duty to
the administration of justice.
We have argued that the position in general law under the iniquity rule
exception to breach of confidentiality actions, the public policy exception to
breach of contract, and the crime–fraud exception to privilege generally
allows whistleblowing in such situations, provided an appropriate process is
followed. It is, however, difficult, uncertain and probably unreasonable to
expect potential lawyer whistleblowers to navigate and rely on the complex
and sparse case law in the area. Professional conduct rules recognise no
exception for gatekeeper of justice whistleblowing (except for a vague
reference to the general law of confidentiality) and provide no guidance as to
an appropriate process to follow for any would be whistleblower. Existing
legislative whistleblower protections for public servants and corporate
employees provide only partial protection and guidance for lawyers. The PID
Act does not protect lawyers not contracted to a government agency and the
Corporations Act whistleblower protections apply only to corporate employees
and in relation to wrongdoing that breaches the Corporations Legislation.
We have, therefore, argued that the professional conduct rules should be
changed to provide for a gatekeeper of justice whistleblowing exception. This
might be most simply done by explicitly introducing an exception to confidentiality in the conduct rules where the crime–fraud exception to privilege
or the iniquity rule exception to breach of confidence would apply. We also
suggest that professional conduct rules and regulation should provide
protection to lawyer whistleblowers that mirrors the type of protection offered
by the PID Act, along with guidance as to the appropriate process for whistleblowing
that also mirrors the PID Act and observations in the case law
concerning the iniquity rule. Finally, we suggest that legal services regulators
and/or legal professional bodies should introduce mechanisms by which
whistleblower reports concerning breaches to the duty to the administration
of justice can be received and investigated in a confidential and effective way
so that lawyers do not have to resort to the media.
Furthermore, detailed work to define precisely how our proposed reforms
to conduct rules and regulation to allow and protect whistleblowing will work
may be necessary. But this should not detract from the urgency of introducing
whistleblower exceptions to confidentiality and protections to enable lawyers
to act as gatekeepers of justice in relation to their colleagues and organisational
clients. In this time of constantly threatening financial, environmental and
social crisis, it is absolutely urgent that we do everything we can to enhance
the democratic control and just accountability of large and powerful organisations
in our society.
'Secrecy, Confidentiality and "Dirty Work": The Case of Public Relations' by Sue Curry Jansen in (2016) 1(1)
Secrecy and Society comments
The prominent midcentury American sociologist Everett C.
Hughes wrote a ground-breaking essay on the “dirty work’”that is part
of every society. He begins his argument with a discussion of extreme
cases - genocide in Nazi Germany, segregation maintained by lynching
in the American South and apartheid in South Africa - but then asserts
that these extremes point to “a phenomenon common to all societies”:
Almost every group which has a specialized social function
to perform is in some measure a secret society, with a
body of rules developed and enforced by the members and
with some power to save its members from outside
punishment.
Viewing this enforcement power as a paradox of social bonding,
Hughes maintains that, “A society without smaller, rule-making and
disciplining powers would be no society at all.” Hughes further
contends that “good people” generally do not want to know what the
enforcers who do a society’s dirty work actually do. They look away,
keep silent or repress knowledge that “would threaten the group’s
conception of itself” if subjected to open discussion.
To break the
silence is to betray the group. This is why whistleblowers - no matter
how honorable their motives - are usually ostracized by their former
compatriots and generally treated with suspicion even by those whose
values and interests they are trying to defend.
The conspiracy of silence around societal dirty work allows
history to be laundered and salutary myths to prevail. While
democracies formally abhor government censorship and value
transparency and publicity as essential to creating an informed
citizenry, they also countenance various forms of censorship during
wartime and other national emergencies. All of the advanced
democracies also now routinely exercise forms of information control
during peace time in the name of national security, broadly conceived
– whether through regimens of classified information, intelligence
agencies, surveillance or other stratagems.
Government agencies and businesses, which do society’s dirty
work, frequently develop jargons of evasion, which cover their efforts
with a veneer of normalcy that renders them less visible.
Bureaucracies institutionalize these euphemisms. Nowhere is this more
apparent than in military and intelligent agencies. The U.S. military,
for example, has developed an elaborate vocabulary of evasion to
cover up the dirty work that is part of every war. Words such as
“collateral damage” (civilian casualties), “soft targets” (cities), drone
warfare (killing people by remote control) shield good people from
having to acknowledge their complicity in morally contentious policies
and actions.
While democracies have to stretch language and logic to paper
over the dirty work that, according to Hughes’ argument, is necessary
to their survival, corporations operate under different rules. They are
private enterprises, accountable primarily to their shareholders, while
subject to various forms of government oversight and regulation,
depending upon their locations and reach of their operations. Secrecy
is, however, assumed to be an integral part of the corporate modus
operandi. It is considered essential to protect trade secrets, negotiate
deals and maintain competitive advantage. Like governments,
corporations also have their disciplinarians and enforcers who do their
dirty work.
This article briefly examines the origins and development of the
dirty work that is done by some forms of corporate PR. It focuses
primarily on the U.S., which invented corporate PR and exported it to
the rest of the world where in recent decades its resources have been
mobilized and deployed in the service of neoliberal globalization.
