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March 29, 2013

Retaliation and Whistleblower Claims by In-House Counsel

Authors: Greg Keating, Ed Ellis, Linda Jackson, Allan King, Chip Jones, Trish Martin, Amy Mendenhall, Roberta Ruiz, and Jeanne Barber
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With recent legislative efforts to expand whistleblower rights and protections, many employers have found themselves confronting an increase in the number of whistleblower reports, complaints, and lawsuits. As part of this trend, many employers are also beginning to see, or anticipate, whistleblower activity and retaliation claims among even their own corporate counsel and compliance professionals. These kinds of complaints, reports, and lawsuits brought by in-house attorneys present particular challenges and complications for the company. Can an attorney bring a claim or lawsuit against an employer that is also his or her client? Can the company’s attorney collect a bounty award for acting as a whistleblower? Can the attorney-whistleblower disclose the company’s confidential and privileged information as part of a claim or lawsuit? How should the company work with an attorney in the workplace who has reported internally or to the government, or who has filed a claim or lawsuit? What can the company do to prevent charges and lawsuits brought by in-house counsel?

These critical questions require careful consideration and a thorough understanding of the state of the law. This white paper provides an explanation of the extent to which in-house attorneys can bring retaliation or whistleblower claims, collect monetary incentives for whistleblowers, and use a company’s confidential and privileged information to litigate a legal claim. Further, the paper identifies employer defenses in such litigation and steps an employer presented with a complaint or claim by an in-house attorney can take to protect its confidential information. Finally, we offer practical steps an employer can and should take when responding to and managing an in-house attorney who has made a complaint or filed a lawsuit while still employed, as well as practical recommendations for preventing such claims from arising at all.

To read the Littler report, please click here.