During our professional lives, we are all likely to encounter situations that make us to question certain practices or behaviours at work. It might be a concern about potential fraud, unsafe practices, or other forms of misconduct that could harm colleagues or the organisation itself. In such moments, knowing how or whether to raise concerns can be challenging.
For an in-house solicitor, the stakes are particularly high. In-house solicitors have a fundamental duty to uphold the rule of law and to maintain public trust in the legal profession. In certain situations, this duty extends to reporting wrongdoing, as set out in the SRA Code of Conduct for Solicitors, RELs, RFLs, and RSLs. However, this obligation must be weighed against the duties of confidentiality owed to both current and former clients, as well as the principle of legal professional privilege (LPP). Recognising these potentially competing obligations, the SRA has issued a useful checklist of questions to help solicitors determine whether and how to report concerns, summarised below.
Key Considerations When Raising Concerns:
- Stick to the facts.
Focus on clear, factual information rather than assumptions or speculation. Avoid including unverified claims and, where possible, limit your disclosure to what you have seen or experienced first-hand.
- Does the information show genuine wrongdoing?
Ask yourself whether the facts reasonably indicate that wrongdoing, risk, or malpractice has occurred, is happening now, or is likely to happen in the future.
- Is it in the public interest?
Whistleblowing is designed to protect the wider public, not to resolve personal employment disputes. If a concern mainly relates to treatment at work, a grievance procedure is usually the more appropriate route.
- Are you personally involved?
If you have had any role in the matter, be aware that whistleblowing will not shield you from disciplinary action. In such cases, it may be wise to seek independent legal advice.
- Could reporting breach LPP?
Whistleblowing protections do not extend to disclosures that breach LPP. If there is any doubt, it is advisable to seek specific guidance from the SRA before taking further action.
- Would disclosure breach any other regulations?
Consider whether sharing the information could put you in conflict with other professional or statutory obligations.
- Do you have a duty to report?
Reflect on whether your role or circumstances create a specific obligation to disclose under the SRA Code or other regulatory frameworks.
- What is your level of risk?
Think about the potential for victimisation at work and decide whether you should raise your concern openly, confidentiality or anonymously.
- Has anything been done internally?
If the issue has already been raised through internal channels and no action has been taken, it may be worth considering whether external reporting is appropriate.
- What is the personal impact?
Finally, take time to consider how reporting might affect you personally and professionally. Whistleblowing can carry emotional and practical consequences that deserve careful thought.
How are In-House Solicitors Protected if they raise a Concern?
As employees, in-house solicitors benefit from whistleblowing protections under the Public Interest Disclosure Act 1998 (PIDA) and the Employment Rights Act 1996 (ERA). This provides the right not to be dismissed (section 103A ERA) or suffer detriment (section 47B ERA) for making a protected disclosure. To qualify, the disclosure must relate to wrongdoing such as a criminal offence, breach of law, health and safety risk or environmental harm.
Protection is strongest when reporting internally or to a prescribed regulator rather than externally, such as to the media. LLP partners can also qualify as “workers”, but the legal test for whistleblowing dismissal remains high: the disclosure must be the principal reason for any adverse treatment or dismissal. Crucially, in-house solicitors cannot rely on whistleblower protection if they breach LPP or disclose privileged client information.
Why LPP Matters for In-House Solicitors:
One of the biggest challenges for in-house solicitors is navigating LPP. Whistleblowing legislation excludes disclosures involving privileged information, recognising the importance of confidential legal advice. If you reveal information shared for legal advice purposes, you may lose whistleblower protection, even if your disclosure would otherwise qualify. This can have far-reaching implications, as in-house solicitors are often copied into internal discussions or emails “in case legal advice is needed” (R (Jet2.com Ltd) v CAA [2020] QB 1027).
Employers may also rely on LPP to withhold documents in whistleblowing cases, making evidence to support claims inaccessible. Understanding where privilege begins and ends is therefore essential, and independent legal or regulatory advice should be sought if there is any doubt.
When Disclosure Is Not Covered by LPP:
Not all workplace disclosures fall under LPP. Only communications involving legal advice or anticipated litigation are fully privileged. Routine business discussions such as strategy, operations, or non-legal decision-making may still be confidential but can often be disclosed without losing protection.
Separating legal from non-legal information can be difficult. If possible, redact legally privileged material before making a disclosure. Exceptions to LPP include the iniquity exception, which removes privilege for communications created to further criminal or fraudulent acts, and client waiver, where privilege is expressly or implicitly waived.
Even internal disclosures require caution. In Ms R Smith v Scapa Group plc and others: 2400172/2017, the tribunal held that section 43B(4) of the ERA applied to a disclosure back to the person who had originally sought legal advice, even though no privilege had been breached and the information had later been disclosed in litigation. This case illustrates the care solicitors must take as internal reporting can still fall within the LPP exemption if the information was privileged at the time of sharing.
Reporting Wrongdoing Internally:
Reporting internally is often the safest first step and can help avoid breaching your duty of confidentiality. A line manager is usually the first point of contact, and reporting to a legal director or general counsel is unlikely to infringe LPP. Disclosures made to someone senior with authority over you are generally considered to be made to your employer and do not breach confidence.
In some situations, in-house solicitors may need to bypass their line manager and report directly to the most senior person in the organisation or the board. While this usually avoids breaching LPP, it can be challenging if they are not a senior solicitor or do not sit on the governing body. Internal whistleblowing channels may allow for anonymous reporting, but caution is required: if information was given for legal advice purposes, sharing it with a separate team could constitute a breach of privilege.
Guidance:
There is no doubt that the law protecting whistleblowers is complex. If you are unsure about confidentiality or LPP, guidance can be sought from the SRA via their professional ethics helpline (0370 606 2577) or by email ([email protected]).
We offer a range of services designed to support in-house counsel – if you ever need any assistance or would like to discuss our services don’t hesitate to get in touch: [email protected].
