We're delighted that Professor Kathleen Clark has agreed to join us here at Legal Ethics Forum. Kathleen's scholarship focuses on the ethics standards for government contractors, current and former government officials, and government lawyers. Her first post (below) concerns lawyers who become whistleblowers in qui tam actions against former clients.
I am writing a law review article, "Buying Silence," about lawyers who seek financial incentives for blowing the whistle on their former clients' wrongdoing under the False Claims Act, Dodd Frank, and other laws.
Although I have presented it a few times (e.g., see here), I don't yet have a draft that's ready to circulate.
The United States has scores of laws relating to whistleblowing. Most of these laws prohibit retaliation against employees who report wrongdoing (whistleblower protection), while a few provide financial incentives for those who report wrongdoing (whistleblower incentives).
Whistleblower protection laws have generally been ineffective. Whistleblowing can produce career-ending consequences, and the remedies available under these laws are modest by comparison. Judges have construed these laws narrowly. Whistleblower incentive laws, on the other hand, have unquestionably elicited thousands of external disclosures and produced billions of dollars in recoveries for false claims against governments. The United States has recently expanded the availability of financial incentives for whistleblowers beyond the False Claims Act to tax and securities fraud.
This paper examines whether the financial incentives that are generally available to certain classes of whistleblowers are -- and should be -- available to lawyers who blow the whistle on their clients’ misconduct.
Legal ethics scholars are familiar with the plight of in-house lawyers who have been fired after blowing the whistle on their clients’ misconduct. Court decisions arising out of these cases have spawned dozens of law review articles and have become classics of the legal ethics canon.
Nearly all of legal scholarship about whistleblowing lawyers focuses on two questions: whether these lawyers violated their ethical obligations and whether those who suffer retaliation can avail themselves of the protections offered by whistleblower statutes or related common law doctrines.
But in recent years, the most dramatic developments in the law of whistleblowing have involved financial incentives rather than whistleblower protection. While most courts have allowed lawyers to pursue whistleblower protection claims (albeit with heightened evidentiary requirements), different policy concerns come into play when a lawyer seeks a financial reward for revealing information about her client. These financial incentives may undermine the loyalty of lawyers who uncover information about possible wrongdoing. Eyeing the potential for a significant payout, lawyers may be less likely to blow the whistle internally, or less likely to do so in a manner that would actually be effective.
By exploring how the law addresses this issue of whistleblower incentives, one can discern competing visions about the role of loyalty and personal gain in motivating lawyers and employees more generally.
When I began teaching as a Visiting Professor at Georgetown Law Center in 2007, I was disturbed to find that they have an honor code applicable to the students, who are free to use computers during exams; also, when I had students taking make-up exams, I was not allowed to prepare different questions for them.
I wrote to the former Dean and, later, to the present Dean expressing my concerns. My suggestion was that the computers be adjusted during exams to prevent downloading of material and communicating on the internet. This is done at Hofstra and other schools with no apparent difficulty. Each Dean referred the issue to a faculty committee, and I have heard nothing since, despite follow-up letters.
The principal problem that I have with honor codes is that there will always be some people who will cheat any chance they get, and some who will never cheat. In the middle are all the rest of us, who don’t need any more temptation in life than we already have. (Oscar Wilde said, “I can resist anything but temptation.”) The knowledge that others are cheating and getting away with it – and thereby achieving higher class standing and better job opportunities – is, I believe, an unnecessary temptation to hold out to our students.
In connection with a class discussion of the duty to report under Model Rule 8.3(a), I passed out a questionnaire to the Lawyers’ Ethics class that included questions about the Law Center’s honor code. One question asked whether the student was aware of violations of the code. Another question was, if the student was aware of any violations, did he or she report it. Forty-four students responded.
If the honor code is working, the answer to the question about being aware of violations would be zero. And if any violations were observed, they all should have been reported.
Of the forty-four responses, 13 students (about 30%) were aware of one or more violations. Of those thirteen, not a single one reported the violations.
Way back in May I listed ethics issues arising in the prosecution of George Zimmerman for the homicide of Trayvon Martin. Now comes news that the defense has disqualified the trial judge for prejudice.
Richard Zitrin has passed along two short pieces that he wrote, one that appeared on Law.com and the other in the San Francisco Chronicle. Richard contends in the pieces that State Bar disciplinary staff overreached and engaged in inappropriate conduct in responding to a lawyer's efforts to obtain clients after a refinery fire in California.
ABA Journal carries the story. Apparently, SCU has a clinic that went after a debt collection law firm and now that firm is striking back at the school. (Disclaimer: I often teach at SCU, but not this semester.) Key allegation:
"[The school's clinic] is not a law firm, but instead is the alter ego of SCU and is engaging in the illegal practice of law using the bar license of Maurer [the supervising lawyer/prof] and collecting attorney fees and adding them to its' [sic] general fund, and or specific fund to support its' [sic] educational activities."
Submissions and nominations of articles are now being accepted for the third annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2012. The prize will be awarded at the 2013 AALS Annual Meeting in New Orleans. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center: firstname.lastname@example.org The deadline for submissions and nominations is September 1, 2012.