Whistleblowers perform an essential public service in keeping companies and government honest. Unfortunately, in revealing misconduct or illegal acts, they also put themselves at risk of retaliation for the role they play. For this reason, state and federal law protect whistleblowers from discrimination, termination, and other adverse actions. However, it’s up to their attorneys to oversee the legal requirements. If you’re representing a client in high-stakes whistleblower litigation, there are some steps you should take to safeguard the integrity of the case.
Know What You Can Protect
One key to whistleblower laws is the individual’s right to keep his or her identity confidential, though state and federal statutes vary on the legal requirements. Strict compliance is essential, since some acts may take your client out of the protective umbrella. You should also note that confidentiality may not apply under some whistleblower laws and in certain contexts. For instance, under the Whistleblower Protection Act, the person must have a good-faith belief in the presence of fraud, waste, misappropriation, or other misconduct. If the whistleblower’s experiences don’t support this standard, the Act may not safeguard his or her identity.
Implement and Enforce Nondisclosure Agreements
There’s a multitude of individuals and entities that will come into contact with your whistleblower, so it’s crucial to create a solid nondisclosure agreement regarding these interactions. You should request compliance and get signatures from:
- Your office support staff
- Third-party independent contractors that you use to outsource certain litigation support services, such as court reporters for depositions
- Organizations that provide security for your office
- Opposing counsel and other attorneys who represent different parties in the case
- Any other individuals that may come into contact with your whistleblower
For whistleblower actions under some statutes, there may be certain requirements for the content of the nondisclosure agreement. The Whistleblower Protection Enhancement Act is one law that makes it necessary to include certain language in these contracts. If you don’t follow the rules, your nondisclosure agreement could be unenforceable.
Coordinate with Applicable Government Agencies
Depending on the law under which your whistleblower case is proceeding, you may need to communicate and follow up with various government agencies. You could even be working with local law enforcement and other members of the criminal justice community if your case involves criminal conduct.
Establish a Documented Policy Regarding Privacy and Security
Because whistleblower cases are highly technical and require specialized knowledge, this probably isn’t your first—and won’t be your last. As such, it’s wise to develop policies that you can roll out every time you get a new whistleblower client. By establishing a documented procedure for handling privacy, you can move through the essential steps efficiently and get started with key litigation tasks.
These steps should help you avoid the negative publicity and protect the most important aspect of a whistleblower case: Evidence of misconduct or criminal activity by entities that would take harsh, retaliatory action against the person who exposes them. Whistleblowers provide a valuable service for a smooth-running government, the economy, and the public as a whole. It’s your duty as an attorney to protect both the person and the case.