Choosing Which Rule To Break First: An In-House Attorney Whistleblower’s Choices After Discovering a Possible Federal Securities Law Violation

May 1, 2014

The early twenty-first century has seen several instances of large-scale federal securities law violations—such as Enron, WorldCom, and the Bernie Madoff scandal—that have garnered widespread attention and heavily impacted the global economy. In each of these cases, whistleblowers tried to expose the underlying fraud. These and other scandals led to the enactment of new laws to protect whistleblowers who seek to expose these kinds of violations.

In-house attorneys are in a special position to discover, understand, and expose their organization’s federal securities violations. However, should in-house attorneys discover misconduct, and when deciding whether or not to take action, they must take into account several different and potentially conflicting governing regimes. As whistleblowers, they can be subject to various state and federal laws, each of which will require them to respond differently in order to be protected from retaliation. These laws have also been interpreted in different ways by different courts. As attorneys, they are subject to state rules of professional conduct, and perhaps other rules governing professional conduct under federal law. As in-house attorneys, they may face additional restrictions, since their employer is also their client. These different regimes can permit or even require attorneys to take conflicting actions in any given situation, making it potentially difficult for an attorney to act without breaking at least one rule or law.

This Note argues that in-house attorney whistleblowers should be expected to act in the same way across different governing regimes. In-house attorneys should be required to report federal securities violations internally first and be permitted to report externally thereafter if the violation is not resolved.

May 2014

No. 6