Whistleblowing as a solicitor
For solicitors, it can be difficult to know how to report wrongdoing. Solicitors have a duty to the rule of law and wider society and are specifically obliged to report wrongdoing in some circumstances, but they are also bound by their duties of confidentiality to their client and the principle of legal professional privilege. If they breach any of these duties, they may face various consequences. These range from a small fine or a breach of contract claim to a criminal sanction or being struck off by the SRA if they are found to have breached confidentiality or privilege. This is in addition to the risk of victimisation faced by all whistleblowers.
This guidance sets out key points to think about when raising (or considering raising) concerns.
1. Will I be protected if I raise a concern?
As employees and workers, both in-house and private practice, solicitors benefit from the whistleblowing protections established by the Public Interest Disclosure Act 1998 (PIDA 1998 also referred to in this guidance as the ‘whistleblowing legislation’) and incorporated in the Employment Rights Act 1996 (ERA 1996). You therefore have the right not to be dismissed or suffer a detriment due to making a protected disclosure as long as you satisfy the usual following conditions:
- You have made a disclosure which you reasonably believe relates to one of:
- Criminal offence
- Failure to comply with a legal obligation (e.g. under a contract)
- Miscarriage of justice
- Health and safety risk
- Environmental damage
- Cover-up
- You have a reasonable belief that the disclosure is in the public interest;
- You have made the disclosure in accordance with the law.
- You do not disclose information which was disclosed to you in the course of obtaining legal advice, if that information could be the subject of a claim of legal professional privilege.
The whistleblowing legislation is drafted broadly, to capture a wide range of circumstances. This means reporting within an organisation is captured, e.g. where a solicitor is reporting wrongdoing to a representative of their employer, and also where they are reporting externally to a third party.
Personal grievances about your own treatment at work are not typically covered unless there is a public interest element to it.
The right not to suffer detriment is available to both employees and workers, which solicitors will be in most, but not all, cases. Partners who are members of an LLP can be regarded as workers when they are working “under a contract personally to perform any work and services” and for their firm which is not their client or customer.
However, the statutory whistleblowing protections are only available if the information you disclose was not obtained in the course of obtaining legal advice, and the information could be the subject of a claim of legal professional privilege (Section 43B(4) of the Employment Rights Act). This exception would apply, for example, if an in house lawyer disclosed information that had been brought to them by another employee for the purposes of obtaining legal advice in relation to it. There is a grey area as to whether protection would be lost in relation to reporting the information internally or only if reported to someone other than the employer. The information reported internally could still be subject to a claim of LPP (and so might be said to fall within the exception) but would not involve a breach or abuse of privilege, at least if that employee is to be regarded as authorised to obtain the advice on behalf of the employer.
2. Legal Professional Privilege
The whistleblowing legislation has a specific exception relating to information that is the subject to legal professional privilege (if it has been received in the course of obtaining legal advice) because of the importance of a client being able to consult a lawyer without fear of those communications being disclosed to a third party. This is considered particularly important in relation to litigation and for a client to understand their rights and obligations.
Section 43(B)4 of the Employment Rights Act 1996 (ERA) states that:
“A disclosure of information in respect of which a claim to legal professional privilege…could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.”
Essentially, this places a limit on whistleblower protection in relation to disclosure of information which has been disclosed to the whistleblower by another who is seeking legal advice. Information disclosed to the lawyer in those circumstances by someone who can be regarded as the client will be subject to LPP, and disclosure of that information by the lawyer will not be covered by UK whistleblowing protections, subject to certain limited exceptions.
Most communications between a client and their legal adviser will be confidential, but not all will be and not all of those that are confidential will attract LPP.
It is also the case that LPP is owed by the solicitor to their client and so it is essential to establish who is the client. In the case of in-house solicitors, the client will be a specific entity (the employer), represented by the executive and other individuals. Within a company, communications between the company’s lawyer and other employees will only potentially be privileged if those other employees were tasked with seeking and receiving advice on behalf of the company. However this may still result in quite wide coverage. Often it will be implicit that the employee seeking legal advice from the in house lawyer has authority to seek or receive that advice on behalf of the company.
If the communication with the in-house lawyer is subject to LPP it does not follow that the disclosure of the information internally is a breach of privilege. A breach will not occur in cases where there is no loss of confidentiality in reporting wrongdoing to the client employer.
Protect’s view is that in those circumstances the exception in s.43B(4) should not apply. Indeed solicitors are under an express and active duty within their professional regulations to inform their client of all material matters of which it should be aware. To fail to report wrongdoing to their client will likely put them in breach of their professional duties. In practical terms this means in-house solicitors will need to ensure wrongdoing is notified at least to a representative of the relevant board of directors of their client-employer. However whilst Protect considers that the s.43B(4) should be construed so as not to exclude communications unless they involve a breach of privilege, the legislation does not expressly provide that this is the case. Nor is there yet case law which establishes that limit. In one employment tribunal decision s.43B(4) was held to apply to an internal disclosure back to the person who had sought the advice on the basis that the information could be the subject of a claim of privilege, even though it did not involve a breach of privilege.
Communications where legal advice is not being sought and litigation is not anticipated, such as general commercial considerations and non-legal matters such as strategy and operations, might not be privileged. Although these communications may still attract confidentiality, they may be disclosed without loss of whistleblowing protections. but this is a grey area as legal privilege can attach to communications ‘to keep the lawyer informed so that advice can be sought as required’
There are also further exceptions to when LPP applies:
3. Would I be in breach of other duties/obligations as a solicitor if I blow the whistle?
All lawyers who are regulated in England and Wales fall under the Legal Services Act 2007 jurisdiction. Section 1 requires solicitors to comply with the following professional principles: they need to act with independence and integrity, maintain professional standards and act in the best interests of their clients. Importantly for whistleblowing there is also the obligation to keep client affairs confidential.
Solicitors, including in-house solicitors, are also regulated by the SRA and bound by their code of conduct. The following principles apply to all solicitors:
Your duty to act with honesty and to uphold the rule of law and proper administration of justice could be interpreted as the duty to alert your client and/or the regulator when you become aware that they are engaging in criminal or fraudulent purposes.
This also means that as a solicitor, you may have a duty to report to the SRA some wrongdoing including money-laundering by law firms and serious breach of the SRA’s regulatory arrangements. The SRA’s red line summarises its remit as “fraud, dishonesty or serious misconduct” committed by solicitors or law firms.
Please refer to the SRA’s guidance on this – and use their Professional Ethics helpline for solicitors (0370 606 2577, professional.ethics@sra.org.uk), as this is not a straightforward issue.
Many solicitors are also employees who owe a general duty of loyalty and confidentiality to their employer. There can be some tension between duty to client/employer and regulatory duties. The SRA has provided non-exhaustive guidance on situations where your confidentiality may be overridden. More detail is provided here but essentially these exceptions relate to:
- Where a client has indicated their intention to commit suicide or serious self-harm;
- Safeguarding concerns and preventing harm to children or vulnerable adults;
- Preventing the commission of a criminal offence/the iniquity exception.
Even in the above circumstances, the SRA advises that you must always have regard to your duty of confidentiality which can only be overridden in rare circumstances.
4. Reporting wrongdoing internally as a solicitor in private practice
If you need to report wrongdoing by clients of the firm, the client will have contracted with the firm, not yourself personally. You should not therefore be in breach of either your confidentiality obligations or LPP if you report the wrongdoing internally, to your Risk team or compliance officer for instance. They will be best placed to determine whether an external report is required.
Additionally, while law firms are not obliged to implement whistleblowing channels or policies, some will have some sort of whistleblowing procedure in place. For more information about how to raise a whistleblowing concern, see our guidance here.
5. Reporting wrongdoing internally as an in house solicitor
If your company has clear whistleblowing policies and reporting channels, you will need to evaluate whether to follow that process or whether to address your concerns with the board of the company directly. As the board is generally considered to be the controlling mind of the company, and therefore the client, disclosing information to the board is unlikely to breach confidentiality obligations or LPP and you are likely in any event to have a duty to alert them – see above. However, this is a grey area and you will need to take specific advice on whether whistleblowing protections apply to you. Please refer to our guidance at 2.2. above.
Use of your internal whistleblowing policy instead of reporting to the board will therefore usually be considered where you want to remain anonymous or are unable to access the board of directors.
There may be occasions when you are asked for legal advice by a specific person or department within the company, as separate from the rest of the company, which would make reporting a concern on it to a separate department of the company (eg the whistleblowing team) a breach of LLP, but this in practice this would need to have been clearly evidenced and should be rare.
Depending on the sector in which the company operates and particularly which regulatory bodies they are answerable to, you should remind the Board of their reporting obligations so that they can assess the severity of any allegations.
6. Reporting externally
If you do not feel it is appropriate to raise your concern internally or you have done so but the issue has not been resolved, you should consider raising your concern externally.
Where you suspect wrongdoing by another solicitor or a law firm, the appropriate regulatory body to report your concern to is the SRA. These reports are strictly limited to acts of wrongdoing by other individuals and firms regulated by the SRA. However, there are also additional regulators such as the National Crime Agency and Information Commissioner’s Office that you may report specific issues to in relation to any individual or company whose acts fall within their remits.
You can report a wrongdoing by another solicitor or a firm directly to the SRA. Full guidance on when it is appropriate to report a wrongdoing and how to do so can be found here. Essentially, you can report a person or entity who is regulated by the SRA where they have breached the SRA Principles.
If the complaint is about poor service by a solicitor, the complaint should instead be sent to the Legal Ombudsman here. The Ombudsman can then refer the case to the SRA if it is serious enough.
When reporting a concern to the SRA might put you in breach of your LLP or confidentiality obligation, the SRA is able to serve a statutory production notice which will allow the SRA to collect information and documents held by regulated firms and individuals, even when such information is confidential and/or protected by LLP. Solicitors must comply with a statutory production notice from the SRA.
Where there is evidence to suggest a breach of their confidentiality obligations, these notices are routinely served on solicitors.
The SRA has a dedicated ‘red alert line’ for fraud. It is described as “exclusively for solicitors and their staff who know or suspect that another regulated person or their employee is involved in this specific misconduct.” Telephone: 0121 828 8619 Email: redalert@sra.org.uk.
How to raise a concern with the SRA:
To report other types of misconduct to he SRA, the SRA requires at you complete a report form here and email it to the reports team at report@sra.org.uk
The SRA will review your report and evidence to determine whether the matter is serious enough to investigate. If they consider that your concerns are serious and substantiated enough, the SRA will take appropriate disciplinary action in line with their Enforcement Strategy. More information can be found on the SRA website.
Just as for private practice solicitors, in-house solicitors can report wrongdoing to the SRA. However, this is only in relation to individuals or firms who are regulated by the SRA. If the wrongdoing is committed by the company that employs the in-house solicitor (which is not – by definition – a law firm), the SRA will not be competent, though you can still ask for their advice if reporting those concerns will conflict with some of your professional duties.
For wrongdoing committed by an individual or organisation NOT regulated by the SRA, you will need to find the relevant regulator (eg the FCA for wrongdoing by a financial institution, etc.) However, reporting wrongdoing to a regulator other than SRA is likely to put you in breach of LLP.
Unfortunately, the SRA is not prepared at the moment to not able to issue a statutory production which would enable LLP or confidentiality to be set aside. You must therefore be careful in only reporting to other regulators information that will not put you in breach of LLP.
We have put below some examples of other regulators that might be useful.
In certain circumstances, regardless of LLP (see the iniquity exception above) , you are required to make a suspicious activity report to the NCA pursuant to either the Proceeds of Crime Act 2002 or the Terrorism Act 2000 via the NCA’s online portal here. The NCA is the UK’s lead enforcement agency against organised crime, human and drug trafficking, cybercrime and economic crime.
The ICO is responsible for upholding information rights in the public interest. You are obliged to report a personal data breach to the ICO pursuant to the UK GDPR or the Data Protection Act 2018. However, this could put you in breach of your LLP obligations.
You can make a report to the ICO by calling their helpline on 0303 123 1113 and selecting the option for whistleblowing complaints. The ICO asks that you make clear to the person you speak to that you consider yourself to be making a protected disclosure under the whistleblowing provisions. Their staff will then be able to guide you to an online reporting tool where you can submit your protected disclosure.
Bear in mind that the confidentiality and LLP obligations set out above risk making you in breach of your own regulatory obligations if you decide to report to other organisations, the wider public and the press. We have general guidance but please contact our Adviceline if you need specific advice on this.
The SRA recognises that reporting wrongdoing may well conflict with your competing obligations. If you wish to report a wrongdoing but are concerned about confidentiality and legal professional privilege, you can call the SRA’s Professional helpline on 0370 606 2577 or email the Professional Ethics team here. You can contact this helpline at the very early stages of your concerns and provide the information anonymously on a no names basis.
You can also contact the Law Society helpline: https://www.lawsociety.org.uk/contact-or-visit-us/helplines/practice-advice-service/
If at any stage of the process you would like additional advice from Protect, you are welcome to contact us through our online form or call our adviceline on 020 3117 2520 and/or utilise the email template library and other resources on our Advice Line webpages.
7. In-house solicitors: Suggestions for your organisation
While private practice solicitors have more scope to report wrongdoings both internally and externally, the situation is far more complicated for in-house solicitors. Below are some suggested ideas that your organisation could implement to provide broader whistleblowing protections for you:
7.1 Introduce a clear reporting line
Your organisation can provide you with a clear reporting line in your employment contract. In particular, they could assign a non-executive director that you can report to directly for impartiality. Your reporting abilities should be specifically set out in your employment contract so that the process is clear both to you and your organisation. See here for more best practice suggestion.
7.2 Reference the SRA Principles within your employment contract
Your employer can expressly include the SRA principles within your employment contract to reinforce your regulatory duties and highlight the independence of your role.
7.3 Clarify who is in your client group
Your employer can expressly state in your contract those who are within your client group. This way, you would not be in breach of legal privilege by disclosing information to someone other than the individual who sought your advice.
7.4 Employer’s waiver of privilege
When negotiating your employment contract, you can ask your employer to agree to waive all future privilege to the extent necessary for internal whistleblowing. This waiver would essentially mean that your duties of confidentiality and legal privilege would not apply in situations where you need to report wrongdoing internally.
7.5 Whistleblowing ‘champion’
You can ask your employer to allocate responsibility relating to the organisation’s whistleblowing policies and procedures to a particular board member. The individual would effectively be a ‘whistleblowing champion’ as required for FCA-regulated entities. This would allow you to raise your concerns internally with a specified board member without breaching your duty of confidentiality or legal privilege.
It is best to make these suggestions to your organisation as early as possible and before you notice any wrongdoing so that you are more protected in the event that you need to raise your concerns at a later stage.