The Law Society has published guidance for in-house solicitors on whistleblowing as part of its updated in-house ethics framework. 

The guidance explores a tension at the heart of the role of an in-house lawyer in the context of whistleblowing: on the one hand, the duty to the rule of law and obligation to report wrongdoing and, on the other, the duty of confidentiality owed to one’s client. The Law Society acknowledges that “these duties cannot always be reconciled easily”, but the guidance nonetheless seeks to offer ways to navigate this difficult terrain.  

In particular, it stresses that anyone thinking of disclosing information should concentrate on “specific information with factual content” as opposed to suspicions or allegations, and to “stick to what you have seen first-hand”. Furthermore, in order to take advantage of relevant whistleblowing legislation, the guidance provides a reminder of the requisite criteria, including that the disclosure must relate to particular types of conduct, and the person disclosing it must reasonably believe that it is in the public interest to do so. 

However, the guidance points out that one of the challenges for an in-house solicitor in relying on these whistleblowing protections is that they are unlikely to apply if legal professional privilege (LPP) is breached. As the Law Society explains, “the whistleblowing legislation has a specific exception relating to information that is subject to LPP because of the importance of a client being able to consult a lawyer without fear of those communications being disclosed to a third party”.  

The guidance explores some ‘limited exceptions’ to this rule, before discussing how an in-house solicitor is expected to juggle any duties to report wrongdoing with a general duty of loyalty and confidentiality to their employer. It also outlines practical steps that can be taken to report wrongdoing both internally and externally in such a way as to tread the delicate line of complying with what are often at times seemingly competing obligations. 

To read the guidance in full, click here.