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“The issue is navigating the duties,” says Nelson. “The duty internal reporting,” says Thomas. “There should be more em-
of confdentiality must be upheld, even to the point that ser- phasis on better safeguards and reporting. For in-house lawyers,
vices must be terminated. You have one client and you would be the major challenge is to determine why employees are not re-
out of the job. Does that inhibit lawyers? I don’t know.” porting wrongdoing that they see.”
For whistleblowers, the two major decisions are when to re- Navigating through ethical dilemmas, particularly with
port and to whom to report. Reporting early can mitigate the whistleblowing, can be diffcult. There are a few resources avail-
damage—but to whom to report can then be a serious issue. able. In 2012, the CCCA published “FAQs about Privilege and
If senior management is implicated, up-the-ladder reporting Confdentiality for In-House Counsel” to help lawyers identify
might be unsuccessful. Most organizations have policies in ethical issues on confdentiality, including how to handle whis-
which employees report wrongdoing to the compliance depart- tleblowing.
ment. However, if this department is not independent from se- “The FAQs were put together as principle based because not
nior management, it can also have no effect. every situation is identical,” says Nelson, who served on the ad-
“One of the challenges is that some internal reporting mech- visory group for the project. “It’s there to help lawyers fgure out
anisms are ineffective and employees don’t have confdence in if they’re in that situation and how you go through the process.”
them,” says Thomas. “Companies need to inspire greater con- Most resources involving whistleblowing and confdentiality
fdence. If the reporting chain involves the same people asso- are geared towards lawyers in general. Nelson suggests having
ciated with the potential wrongdoing, it’s not appropriate for services directed towards in-house counsel, including continu-
these individuals to handle these issues.” ing education sessions.
Before coming forward, lawyers need to evaluate the reporting “The law societies have related resources but they are gener-
systems within their organization. The most effective programs al,” says Nelson. “Maybe you could have anonymous, no-name-
have anonymous reporting mechanisms in which confdential- basis service for in-house counsel to talk to other in-house
ity is maintained throughout the process, a user-friendly system counsel. It would make lawyers less apprehensive in what you
that’s easy to understand, reporting mechanisms separate from can do. In-house talking to other in-house is helpful too. The
day-to-day management and enforced no-retaliation policies. best CLE [continuing legal education] I’ve seen is when you can
Thomas says organizational culture also plays a major role. see yourself in another person’s shoes. It helps get further dis-
“Companies can have the best policies and procedures, but cussion going.”
if their employees don’t believe there is a culture of integrity, it Deciding to blow the whistle is a career-changing decision.
won’t work,” says Thomas. “Companies should do an indepen- The cases of Edgar Schmidt, Sanford Wadler and Sharon Wat-
dent survey of their organization, and see how people view the kins, among others, demonstrate the diffcult process of coming
culture of the organization and its internal reporting systems.” forward. For in-house counsel, the best way to be prepared is to
However, strong whistleblowing measures may not guaran- be educated on the issues.
tee that a lawyer is protected. Thomas believes bar associations “Watch the documentary The Smartest Guys in the Room,”
need to be more involved in helping lawyers create better mech- says Nelson. “Know real-life scenarios and learn.” ❚
anisms within their client’s organization.
“Bar associations should make a greater effort to help law-
yers and the organizations that they represent establish better Julie Sobowale is a writer and journalist based in Halifax.

“ Companies can have the best policies and procedures, but if

their employees don’t believe there is a culture of integrity, it
won’t work. Companies should do an independent survey of
their organization, and see how people view the culture of the
organization and its internal reporting systems. ”
Jordan Thomas, Partner, Labaton Sucharow

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