TAKUDZWA HILLARY CHIWANZA

R178151G

LEGAL ETHICS (LB305) ASSIGNMENT

Question: Discuss in depth whether it is proper for a legal

practitioner employed by the State or by a commercial
organization such as a company to be a “whistle-blower”, i.e.
to disclose publicly crimes or misconduct committed by his
or her employer
The field of law presents a vast array of ethical minefields for legal practitioners. One
area of particular interest that is of an intensely conflicting nature is that of
whistleblowing, i.e. disclosing publicly the crimes or misconduct of the company,
organization or the State. It is basically a matter of adhering to the tenets of
confidentiality versus attempts to uphold the interests of justice. Legal practitioners are
bound to respect confidentiality and are not supposed to divulge confidential information
between themselves and the client.

And yet, where justice is about to be defeated as a result of this confidential information,
the legal practitioner has a duty to ensure that justice is upheld. It is received opinion
that lawyers should never be averse to the interests of their clients but in the face of
open, contemptuous disregard of certain laws and regulations - such acts being
deleterious to public interest - the whole issue becomes problematic.

In his/her course of work, the legal practitioner has an ineluctable duty towards the
client: that of religiously sticking to confidentiality. The importance of confidentiality is
that it enables the client, in this case the State or private company, to be fully open to
the legal practitioner for ease of work and convenience. The client-attorney privilege is
of the utmost importance in the legal field. For the legal practitioner to be able to do their
work, and for the client to be able to disclose all the information necessary for the legal
practitioner to do such work, client-attorney privilege must be wholly activated. And
thoroughly respected.

This is what probably makes it extremely difficult on whether a legal practitioner should
report on the misdeeds of a company or state enterprise. Confidentiality is an all-
encompassing aspect in the legal field – without confidentiality being respected, it
becomes hard for both the legal practitioner and the client to co-operate. The ethical
consideration as regards whether a legal practitioner should report on crime or
misconduct using confidential information is one that still begs more dissection.

The all-important question that arises because of the revered nature of confidentiality is
this – should justice be defeated because a lawyer is obliged not to disclose confidential
information? American cases have given an illumination into this ethical headache. In
the case Danon v. Vanguard Group, No. 100711/13 (N.Y. Sup. Ct. Nov. 13, 2015) a
New York court ruled against a matter brought by a lawyer whistleblower against the
company he was employed as an in-house tax lawyer. He discovered that Vanguard
“has operated as an illegal tax shelter for nearly forty years.” He had raised the issue of
how the company was underpaying its federal tax liabilities with the other members of
the company. The company demoted and fired him, and he claimed that this was
retaliation. When he brought the action to court, it was dismissed on the basis that the
lawyer had violated the rules of confidentiality and because of that the matter could not
proceed. The matter never really focused on the merits of the case, but on the technical
issue of confidentiality - attorney-client privilege. The exception in New York’s laws that
the disclosure of confidential information was only allowed when a crime was to be
committed was not applicable in this scenario. The fact that he had tried to raise the
issue internally coupled with the ultimate decision to report the matter to the authorities
meant that he had not violated any ethical rules. 1

Such a matter shows the thin line between respecting confidentiality and not obstructing
the course of justice. It also gives rise to the factors that must be exhausted by the legal
practitioner before they decide to blow the whistle. All of these issues come into play
because of the almost sacred role that confidentiality plays at the very core of legal
practice. The legal practitioner is expected to have a fiduciary duty towards the
organization and that the legal practitioner should abide by the client’s decisions
regarding the objectives of the representation. 2

Generally speaking, the lawyer should act in the best interests of the organization and
must strive to protect it. But in the quest to make sure that justice is achieved and
served, whistleblowing becomes an inevitable characteristic of any legal system - as
well as an effective mechanism underpinning any democratic society. The regard for
whistleblowing exists because of the potential that whistleblowing holds in stopping the
further commission of crimes, human rights abuses, fraud and other vices that are
injurious to the public. For such purposes, the lawyer has a special appeal and position
when it comes to whistleblowing. Lawyers are trained and able to spot illegality and

1
D. Ventry, Stitches for Snitches: Lawyers as Whistleblowers, 2017 Vol 50:1455, University of California Davis, 1467
2
J. Burman, Ethical Considerations When Representing Organizations, 2017, Vol 3 No 2, Wyoming Law Review 687
abuses of the justice system.3 Their duty to the administration of justice and to the court
is considered paramount.4 Because of this, the justice system should be fashioned in a
manner that gives lawyers ample space to report any crimes so that justice is served.

There is an Australian case on the issue of whistleblowing that is widely referred to as

the McCabe case. In McCabe v British American Tobacco Australia Services Ltd [2002]
VSC 73 (22 March 2002) [7], Christian Dale, who had been ousted from the firm Clayton
Utz at which he was a partner in bitter circumstances the year before, leaked explosive
documents revealing how the firm had defended British American Tobacco Australia
against a lawsuit by late lung cancer victim Rolah McCabe. Documents that were
relevant to the case and were damaging against the client, British American Tobacco,
had been destroyed. Four years earlier, the court had struck out the company’s defence
to the lawsuit saying that the company together with its lawyer Clayton Utz had
subverted the process of discovery, with the ''deliberate intention'' of denying McCabe a
fair trial.

McCabe was awarded $700,000 in damages, but this was overturned by the Court of
Appeal, which cleared the company and Clayton Utz of wrongdoing. That is when Dale
leaked the explosive documents and then in 2011 a settlement was struck between
McCabe’s family and British American Tobacco. This issue revealed the magnitude of
whistleblowing. Without divulging such information, the intensity of the case would not
have been brought to light. The underhand dealings of the company that had resulted in
them avoiding liability in the suit where brought to light by the whistleblowing. Had it not
been for the whistleblowing, it would have never been known that there were
documents destroyed during the course of litigation. Because of this, whistleblowing
holds a very significant place in the justice system.

Lawyers are usually in possession of information about wrongdoing; information not

known by those outside the attorney-client relationship. 5 They are also in the best
position to know about the abuses of the legal system in covering up for such

3
C Parker, S Le Mire & A Mackay, ‘Lawyers, Confidentiality and Whistleblowing: Lessons from the Mccabe Tobacco
Litigation’ (2016) 40(3) Melbourne University Law Review 1041
4
n above 3, 1041
5
Ibid 1065
wrongdoing. It only becomes prudent to afford lawyers the chance and protection to
reveal information about wrongdoing by a company. Such wrongdoing does
considerable harm to the administration of justice. The question on whether it is proper
for a lawyer to report the crimes or misconduct of a company is one that needs to be
looked at with an altruistic desire to strike a balance between the competing interests of
confidentiality and the attainment of justice. Without an attempt to strike out this
balance, the issue of whistleblowing will remain a thorn in the flesh for participants in the
field of Law.

In Solicitor-General (NZ) v Miss Alice [2007] 2 NZLR 783, a lawyer was found to have
been in contempt of court after releasing to the media a confidential report about the
poor construction of a bridge that gave access to his clients’ farm and later collapsed
causing the death of a third party. His actions were spurred by the conviction that his
clients had suffered a miscarriage of justice of huge proportions when the coroner
blamed them for poorly maintaining the bridge. The issue of whether justice should
trump confidentiality is one that prevails.

The conservative nature of legal practice has entrenched the supremacy of

confidentiality over other interests. In Zimbabwe, there are no strict written rules on the
problematic issue of whistleblowing. Confidentiality has first priority, but there are
exceptions to this. If a client communicates with a lawyer before the commission of a
crime with a desire to being assisted in committing it, such communication falls outside
the scope of client-attorney privilege and the lawyer has a duty to report such
information. Whistleblowing may be a result of the lawyer defending himself to a civil
claim or criminal charge instituted against the lawyer. If the lawyer believes that he is in
possession of information that shows a crime is about to be committed and it will result
in death or serious bodily harm, then such information ought to be disclosed.

But the lawyer is expected to be very careful about revealing such information and
should be careful not to reveal more than what is needed to avert the harm that will be
caused by the crime. Section 26 of the Bank Use Promotion and Suppression of Money
Laundering Act [Chapter 24:24] provides that if a legal practitioner is a party to a
transaction and has reasonable grounds to suspect that information which he or she
has concerning the transaction may be relevant to the investigation or prosecution of a
person for money laundering or a serious offence, he or she must report details of the
transaction to the Bank Use Promotion and Suppression of Money Laundering Unit
established by the Reserve Bank of Zimbabwe.

Lawyers who decide to blow the whistle against the Government may run the risk of
being followed after by state security agents of the government. Governments wield
sizeable power such that they may inflict injustice against people. It seems correct for
lawyers to blow the whistle against the government if done in furtherance of detecting
and exposing unlawful activities. Government lawyers have a greater burden and as
such must be protected.6 It is usually rare for lawyers to report against the government,
but when a lawyer decides to do so, it should be done with a view to ensuring that
justice is achieved.

Whistleblowing gives rise to many problems in the legal field. It is clear that the privilege
that confidentiality brings is not absolute. Wherever lawyers are aware of a crime about
to be committed or being committed by the organization or the State, they are expected
to immediately raise alarm. But at the same time, many consider it unethical for lawyers
to reveal tonnes of confidential information to the authorities and the courts. In
companies, it is suggested that to minimize whistleblower claims by corporate counsel
and uphold confidentiality, companies should review internal reporting requirements to
ensure prompt reporting of any misconduct.7

This mechanism gives room for companies to deal with their own matters privately to
prevent them from going public – appropriate action should be taken when there is
internal reporting. It also reduces the connotation of “right or wrong” in whistleblowing by
lawyers. Companies may also wish to tailor confidentiality agreements entered into with
employees to address whistleblower concerns. 8 Allowing whistleblowing to be rampant
is adverse to the key principle of confidentiality which underpins the core of legal
practice. That confidentiality must always be respected. It would seem that the
consideration of confidentiality reigns supreme in the light of whistleblowing.
6
J. Burman, Ethical Considerations When Representing Organizations, 2017, Vol 3 No 2, Wyoming Law Review 785
7
D. Schwartz & R. Salins, Attorneys As Whistleblowers, 2017, Vol 258 No 68, The New York Law Journal, 3
8
n above 7, 3
On the overall, confidentiality can never be absolute. As such, it should not be said that
it is wrong for a lawyer to blow the whistle. This is because the practical reality of law is
that where crimes are being committed and have been committed, and the lawyer has
confidential information not known to a person outside the client-attorney relationship,
the duty then falls on that lawyer to ensure that justice has been served. If companies or
the State are allowed to get away with certain wrongs, this culture of impunity will harm
the interests of many a innocent people.

The public should be protected from this. And in this matrix the lawyer has a special
appeal. At the same time, to safeguard confidentiality, companies should also create
internal reporting mechanisms to ensure that they deal with matters privately, and such
matters when reported should be dealt with promptly. The solid conclusion, in this
ethical labyrinth, is that where justice should reign supreme, it should, and impunity
should never be given a chance. Lawyers should also be protected when they blow the
whistle.
BIBLIOGRAPHY

Burman, J. “, Ethical Considerations When Representing Organizations” , Wyoming

Law Review Vol 3 No 2, 2017

Parker, C. Le Mire, S & Mackay, A. “Lawyers, Confidentiality and Whistleblowing:

Lessons from the Mccabe Tobacco Litigation” Melbourne University Law Review Vol 40
No 3, 2016

Schwartz, D. & Salins, R. “Attorneys as Whistleblowers” The New York Law Journal, Vol
268 No. 68, 2017

Ventry, J. “Stitches for Snitches: Lawyers as Whistleblowers”, University of Carlifonia

Davis, Vol 50:1455, 2017