Once a person decides to make a whistleblower claim, they cannot discuss their claim with anyone other than their lawyer. All information shared with the attorney is protected by solicitor-client privilege in SEC whistleblower claims. Violation of this privilege can affect the whistleblowing process and complicate a person`s case. If an individual wants to know more about solicitor-client privilege and how they are protected by that privilege, they should consult with a diligent whistleblowing lawyer who can assist them in the claims process. As a result, the in-house lawyer was offered severance pay and fired for protesting the company`s policies. The lawyer sued his former employer, claiming he violated a state law prohibiting retaliatory dismissal of employees who disclose the company`s illegal behavior. This law protected workers who could identify a clear public policy law, rule, regulation or mandate that justified a request for retaliation, as well as unacceptable practices in the employer`s business that violated the identified authority. The United States District Court for the District of New Jersey dismissed the action. On appeal, the third circle held that the company`s employer`s coercive order to file frivolous, unfounded and bad faith patent applications, notwithstanding the in-house counsel`s express recommendation not to do so, violated state and USPTO professional rules and constituted a clear violation of public policy. The Third Judicial District concluded that ethics rules were a source of authority that allowed the in-house lawyer to make retaliatory claims against his employer against whistleblowers and dismissed the case.
Recently, in Trzaska v. L`Oréal USA, Inc., 865 F.3d 155 (3d Cir. 2017), United States The U.S. Court of Appeals for the Third District analyzed whether the refusal to violate the Code of Conduct constituted protected activity under a New Jersey anti-retaliation law. Trzaska shows that the in-house counsel`s commitment to compliance with the rules of conduct is rewarded despite instructions to the contrary from the employer. There, the employer set a quota of patent applications for its in-house patent attorneys, which encouraged them to file patent applications for products, even if they assumed in good faith that those products were not patentable. The rules of the United States and United States Patent and Trademark Office (USPTO) prohibited lawyers from filing frivolous or bad faith patent applications or knowingly making false statements in court. Due to a shortage of patentable products, in-house counsel informed the company`s management that the legal team was not willing to file patent applications that they did not reasonably believe could be patentable and that this would violate ethical rules.
In response, the employer made it clear that failure to submit such applications would have a negative impact on their careers. Lawyers preparing reports should exercise caution when presenting a report that is perceived as a mix of business and legal advice. While the existence of a management consulting firm does not necessarily preclude the application of privilege, the primary purpose of the report must be legal advice for the privilege to survive. In a comprehensive expert opinion, Justice Dolinger rejected each of the plaintiff`s many waiver arguments. Significantly, however, the court acknowledged (and the defendants conceded) that they had waived privilege over the submissions of counsel himself, which the defendants had presented (in recognition of the waiver) to the executive at the time of discovery. Similarly, the SEC`s new enforcement manual states that it will make cooperative loans in exchange for disclosure of “all relevant underlying facts of which [the company] is aware.” The distinction between privileged disclosure and relevant facts is slippery, especially with respect to a lawyer`s findings and findings during an internal investigation. Understand that privileged attorney documents, trade secret documents, and patient confidentiality documents (HIPAA) are special situations, even if they are directly related to fraud. Some documents rightly deserve the utmost care.
The last thing the government or your lawyer wants is to tarnish the government team or cause unintended consequences for third parties that could have been avoided. So before you hand over anything to the government, your legal team needs to carefully review the documents, point out these classes of documents, detain some and redact others. It`s tedious work, but the government will greatly appreciate your team`s meticulous approach, and you`ll have saved yourself some headaches down the line. 3. See Spectrum Services International v Chemical Bank, 78 N.Y.2d 371 (1991) (The court upheld a report prepared by an external law firm specifically engaged for the purpose of investigating possible internal fraud by employees and suppliers, in which affidavits from the firm`s lawyers made it clear that Chemical had specifically engaged them, investigate and provide legal advice regarding such possible fraud, B. Chemical advice in connection with any litigation). The court also rejected the executive`s argument that the report was prepared primarily for commercial rather than legal purposes and was therefore not protected by privilege or the product of labour doctrine. Although the lawyer`s reports were prepared in part for commercial purposes, to communicate with investors and other business partners, there was no doubt that lawyers had been hired to investigate accounting irregularities and, among other things, to plan for the possibility of labour litigation. Wadler, who had worked at Bio-Rad for about 25 years, specifically claimed that “after learning of his employer`s involvement Bio-Rad Laboratories, Inc. in large-scale corruption operations in Russia, Thailand and Vietnam, he investigated evidence of similar FCPA violations in China, where corruption is notoriously endemic.” According to Wadler`s complaint, Bio-Rad`s top executives and directors wanted him to “turn a blind eye to this wrongdoing or sweep it under the rug, but he refused.