Just like human-resource managers, ombudsmen, and compliance officers, in-house lawyers often find themselves as the go-to corporate representative for employee whistleblower complaints. But unlike their non-lawyer counterparts, an employee’s whistleblowing discussions with in-house counsel raises several thorny privilege issues.
For instance, one should question whether the attorney–client privilege applies to the conversation. Other questions raise a lawyer’s anxiety level. What should the in-house lawyer do if the employee announces that she has an attorney and ups the stakes by requesting her lawyer’s presence? How does one handle the ensuing court-filed complaint asserting a retaliation claim that contains the in-house lawyer’s comments? And just to make it interesting, what if the whistleblower is another in-house lawyer?
In my article, Whistleblowing to In-House Counsel, published by Today’s General Counsel, I discuss the privilege and ethical issues an in-house lawyer should consider when a whistleblower walks into her office. Hope you find it useful.