Conflicted Counselors: Retaliation Protections for Attorney-Whistleblowers in an Inconsistent Regulatory Regime

Attorneys, especially in-house counsel, are subject to retaliation by employers in much the same way as traditional whistleblowers, often experiencing retaliation and loss of livelihood for reporting instances of wrongdoing involving their clients. Although attorney-whistleblowing undoubtedly invokes ethical concerns, attorneys who “appear and practice” before the Securities and Exchange Commission (SEC) are required by federal law to act as internal whistleblowers under the Sarbanes-Oxley Act (SOX) and report evidence of material violations of the law within the organizations that they represent. An attorney’s failure to comply with these obligations will result in SEC-imposed civil penalties and disciplinary action. Current federal case law, however, is divided as to whether whistleblowers who report violations internally within their organizations, rather than to the SEC, are eligible for the robust retaliation protections available under the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank). Given that external reporting by attorneys would run contrary to professional ethical rules in a number of states, lawyers risk getting caught in a catch-22 while attempting to comply with the conflicting regulatory regimes to which they are held. This Article highlights the importance of the compliance role of attorney-whistleblowers and addresses the catch-22 problem by analyzing whether the SOX attorney-reporting rules preempt conflicting state law. This Article proposes amendments to the SOX rules to clarify when external reporting is appropriate. It also considers a state-based solution to this conflict through the adoption of a modified version of Model Rule 1.13, the ethical rule governing the behavior of attorneys when they represent organizations and are called to act as whistleblowers.