Lawyering Loyalties: Speech Rights and Duties within 21st Century New Governance

Abstract:     
Acting legally is within the reasonable role construction of any organizational player. Employees must be loyal to their organization and obey the rules set by their employer, but they must also recognize that employment entails serving two masters – their organization and the legal regime that constitutes it. This Article analyzes the obligations and protections for both public and private sector attorneys who witness misconduct. These ethical and professional duties are considered in light of recent developments in regulatory theory and practice that aim to balance these competing obligations. In the past decade, organizations have been increasingly expected to self-regulate and monitor their own legal compliance and ethical practices. Within these reflexive organizational practices, lawyers must take a broader perspective than merely their client’s immediate requests. The Article 2 offers a critique of Garcetti v. Ceballos as well as private attorney whistleblower case law, arguing that the internal channels of reporting misconduct by lawyers to supervisors or boards strike the best balance between new governance approaches to regulation and client-attorney privileges.

Number of Pages in PDF File: 65

Keywords: Ethics, whistle blowing, reporting systems, compliance, discovery

JEL Classification: K42, k4, L2, K31

Accepted Paper Series