In-house lawyers say whistleblowing guidance is 'unworkable'

An organisation representing in-house lawyers has criticised the Law Society for its failing to understand the sector in its guidance on whistleblowing. The Eagle Club, a global network of female general counsel, said advice issued last October 'falls short in a number of areas and risks exacerbating current problems'.

The Society published the guidance to answer questions on whether and how to report wrongdoing. It opened the document for consultation and invited responses from the profession. The guidance stressed from the outset that solicitors had a duty to the rule of law and wider society – which comes with an obligation to report wrongdoing – but that they are also bound by duties of confidentiality and the principle of legal professional privilege.

Whistleblowing in the in-house profession is a talking point now following the Post Office scandal where general counsel were accused of failing to report concerns to the chief executive and losing their independence.

The Eagle Club, founded by general counsel Lesley Wan, said it was a ‘contradiction and an impossibility’ to state that an in-house lawyer must both report wrongdoing and maintain privilege and/or confidentiality.

Its response states: ‘One cannot both disclose information and keep it confidential. A position must be taken on which of these prevails in cases of illegality, criminality and misconduct, where the facts are known by virtue of the advisory role of the lawyer. For in-house lawyers, this will be the majority of cases.’

The guidance also stated how in-house lawyers reporting concerns may themselves face various consequences if they are found to have breached client privilege or confidentiality: such sanctions could range from a small fine or a breach of contract claim to a criminal charge or being struck off by the Solicitors Regulation Authority. The Society said there may also be a risk of victimisation faced.

The Eagle Club response adds: ‘It is a perversity of the current framework that in-house lawyers face penalty rather than protection for whistleblowing. The guidance not only fails to correct this but actively amplifies fear around it.’

The response questions why the Law Society and SRA had not produced guidance jointly, suggesting that relying on two sets of advice ‘creates unacceptable uncertainty for in-house lawyers and undermines confidence in the framework as a whole’.

The group recommends that the Society withdraws the guidance, focuses on holding the SRA to account and takes a clear policy position that in-house lawyers should be able to make protected disclosures as whistleblowers.

In a statement, a Law Society spokesperson said: ‘Our extensive engagement with practitioners to develop the in-house ethics framework highlighted whistleblowing as a key area where members wanted more support from their professional body. We recognised that wider policy and regulatory changes are needed to address issues with the legal professional privilege exception for solicitors reporting wrongdoing. The consultation invited members to provide feedback, which will inform our next steps and influencing work to offer better protections to whistleblowers.

‘We thank The Eagle Club for their response and engagement with the consultation. We will carefully review all consultation feedback and consider next steps.’