Wan: Eagle Club founder
A network of female general counsel has called on the Law Society to withdraw whistleblowing guidance for in-house lawyers, arguing that it “entrenches the longstanding bias against reporting”.
The Eagle Club said the society should work with the Solicitors Regulation Authority (SRA) and other regulators on a “single, cohesive set of guidance” and take “a clear policy position that in-house lawyers should be able to make protected disclosures as whistleblowers”.
The Eagle Club, founded by general counsel Lesley Wan, was responding to draft guidance published in the autumn, developed with whistleblowing charity Protect.
Among other things, the guidance warned in-house lawyers considering whistleblowing to disclose “specific information with factual content” rather than “suspicions or unfounded allegations”.
The Eagle Club said that in recent work on ethics, the Law Society had recognised that the SRA had not provided “adequate guidance” on this critical topic.
However, lawyers “must look to their regulator rather than a representative body on matters of regulatory boundary and practice, enforcement risk and professional compliance”.
The response said the society’s guidance “entrenches the longstanding bias against reporting” while leaving the “fundamental issue” unaddressed, namely that in-house lawyers “cannot report wrongdoing without significant legal, professional and personal risk” – a “national problem” for the handling of misconduct in corporations and institutions.
The society should withdraw the guidance and work with the SRA and other regulators “to ensure the delivery of a single, cohesive set of guidance on reporting wrongdoing, with regulatory weight, that addresses the realities of working in-house”.
The response said it was “a contradiction and an impossibility” to state that a lawyer must both blow the whistle and maintain privilege and/or confidentiality.
“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.”
It was “a perversity of the current framework” that in-house lawyers faced “penalty rather than protection” for whistleblowing, and the society’s guidance “not only fails to correct this but actively amplifies fear around it”.
The Eagle Club added that it appeared to have been drafted “without a sufficient understanding” of what it means to practise as an in-house lawyer or of the complexity of compliance in an employment context.
“It reads as a collection of disconnected propositions rather than a cohesive, operational framework capable of being applied in practice.”
The response called on the Law Society to take “a clear policy position that in-house lawyers should be able to make protected disclosures as whistleblowers” and “actively advocate for a change in policy, law and practice to ensure they can do so safely, including in respect of client privilege and confidentiality”.
While the body had “valuably recognised the inherently conflicted employment status of in-house lawyers” and sought in the guidance to “address a gap in materials provided by the SRA”, it risked “exacerbating current problems, rather than alleviating or assisting with them”.
The Eagle Club said it was “mindful” of the second report of the Post Office Horizon inquiry, due to be published soon, and the “likely scathing commentary on the legal profession that report will contain and precipitate”.
There was “an opportunity for the Law Society in collaboration with the SRA to tackle these issues head on and, specifically, to take up the baton of policy engagement on the legislative and policy gap in regards to protections for in-house lawyers in cases of whistleblowing”.
Without such engagement, the guidance would “remain an empty resource, of no practical use for those dealing with serious misconduct and illegality which they are unable to address through normal governance channels”.
With guidance now issued by the Law Society and SRA, in-house lawyers were “presented with a web of different advice, which is conflicting and unworkable to navigate on a non-urgent basis let alone trying to use this advice in the middle of a highly charged whistleblowing scenario”.
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