Government Attorney-Whistleblower and the Rule of Confidentiality: Compatible at Last, The

Georgetown Journal of Legal Ethics, The, Fall 2003 by Radack, Jesselyn

INTRODUCTION

Government attorneys who blow the whistle are increasingly in the media spotlight. Courageous public servants at beleaguered government agencies' seized headlines by speaking out against wrongdoing - and earned new levels of public attention and respect for the integrity and importance of whistleblowing. Coleen Rowley2 and Cindy Ossias3 are two government attorneys who have been the subject of high-profile cases of whistleblowing on the federal and state levels, respectively. Rowley, one of Time magazine's "Persons of the Year," is an FBI staff attorney who blew the whistle on her agency for mishandling a probe of terrorist suspect Zacarias Moussaoui,4 who has been indicted by a federal grand jury on six counts of conspiracy in the attacks of September 11, 2001.

Rowley wrote a searing 13-page memo, detailing law enforcement missteps leading to the tragic events of September 11, which she sent to FBI director Robert Mueller and two members of the Senate Committee on Intelligence. "Just [a couple of] years from retirement and her family's sole breadwinner, she tacked on two sentences of self-preservation at the last minute, asking for federal whistle-blower protection. At the time, she did not know exactly what it was - nor that the legislation offered FBI employees a weak shield."5

Ossias is the Department of Insurance lawyer who caused the downfall of California's elected Insurance Commissioner, Charles Quackenbush, for misusing public funds.6 "Jeopardizing her job as well as her license to practice law, Ossias leaked damaging confidential reports to legislators looking into Quackenbush's backroom deals that let insurance companies [settle for miniscule amounts] claims arising from the 1994 Northridge earthquake [in California]. The reports showed how Quackenbush allowed the firms to donate $12 million to a foundation in lieu of far more to the victims who have yet to recover. Though her act was heroic and disclosed a hidden practice, Ossias was reprimanded, suspended [for seven weeks], and even threatened with arrest."

Both Rowley and Ossias showed that public service does not mean blind obedience to one's supervisor or subservience to an agency agenda that subverts the law and the public interest.

The ethical dilemmas facing government attorneys like Rowley and Ossias who blow the whistle are confusing, complex and potentially perilous. On the one hand, statutes like the Whistleblower Protection Act ("WPA"),7 which will be a focus of this Article, encourage government employees, including lawyers, to "serve the public interest by assisting in the elimination of fraud, waste, abuse, and unnecessary Government expenditures."8 On the other hand, the American Bar Association ("ABA") Model Rules of Professional Conduct ("Model Rules"),9 until recently, forbade lawyers from revealing confidential information acquired during the course of representing a client, which could include the attorney's "supervisor in the department or agency, the agency itself, the statutory mission of the agency, the entire government of which that agency is part, and the public interest."10

The government attorney who wanted to blow the whistle faced a seemingly impossible ethical dilemma between the competing considerations of keeping inviolate the client's confidences and protecting society's interests in avoiding the substantial consequences of crime, mismanagement, fraud, waste, abuse, and danger to public health or safety.11 This dilemma, in which a lawyer must balance the needs of the client with her devotion to truth and justice, has been referred to variously as a "legal paradox,"12 a "Hobson's choice,"13 and a "Catch-22."14

Recent scholarship on the restrictive Model Rule 1.6 has focused on the plight of securities lawyers,15 environmental lawyers,16 health lawyers'7 and transactional lawyers,18 but not government attorney-whistleblowers.19 The seminal article on confidentiality and the government lawyer, Professor Roger Cramton's The Lawyer as Whistleblower,20 while required reading for any attorneywhistleblower, appeared in the Georgetown Journal of Legal Ethics more than a decade ago. There since has been a major overhaul of the Model Rules21 and amendments to the WPA22 that merit re-examination.

This Article submits that the ABA's new Ethics 2000 version of Model Rule 1.6, which broadens the exceptions to confidentiality, is a giant step towards easing the dilemma for government attorney-whistleblowers. The relaxation of the categorical imperative of Rule 1.6 will redefine a whistleblower's ability to speak truth to power without fear of professional liability, which could include everything from malpractice claims to sanctions to disbarment to criminal prosecution. The Article pays special attention to the new Rule 1.6(b)(6), which acknowledges rather than ignores the power of positive law,23 and argues that the WPA is precisely the kind of "other law" that should be recognized by this provision. The Article provides a case study of government attorney-whistleblower Cindy Ossias and how California is overcoming the tension between whistleblowing and confidentiality. Next, the Article proposes that state bar codes differentiate the government lawyer from the private sector lawyer. Finally, the Article argues that states should, at a minimum, adopt the new Rule 1.6, and bar committees should construe paragraph (b)(4) as applying to whistleblowers. Finally, the Article predicts that whistleblowing by government attorneys will increase as a result.