Attorney-Client Privilege in SEC Whistleblower Claims

Once an individual decides to pursue a whistleblowing claim they cannot discuss their claim with anyone aside from their attorney. Any information shared with the attorney is protected by attorney-client privilege in SEC whistleblower claims. Violation of this privilege can impact the whistleblowing process and complicate a person’s case. If an individual wants to know more about attorney-client privilege and how they are protected by that privilege, they should consult a hardworking whistleblowing lawyer that could help them with the claims process.

How SEC Claim Information Submitted by an Attorney Can Complicate the Whistleblowing Process

An attorney obtaining information to be used in an SEC whistleblower claim can considerably complicate the process, because of attorney-client privilege in SEC whistleblower claims. Did the lawyer obtain the material as part of their privilege? There is also a duty under the SEC whistleblower law to report internally if a person serves in a compliance capacity for example prior to filing an SEC whistleblower claim. A person has to ensure that the supervisor or the board is aware of the allegations 120 days prior to filing an SEC whistleblower action.

Can Non-Attorneys be Bound by Attorney-Client Privilege?

Anyone who works at the direction of an attorney can potentially be bound by attorney-client privilege in SEC whistleblower claims.  An attorney can have a position in a company that is considered to be a business function, and such a person is not there to provide legal advice or act in contemplation of litigation. The attorney-client privilege is in and of itself an extremely complicated area of law when it comes to the role of an attorney and when communications between the client and the attorney would be considered privileged.

A lot of people get law degrees and go on to work in a business where the knowledge of the law can certainly be very helpful, but they are not acting as the attorney for a client, they are acting as a business person for the business. Determining what that role is important in determining what is or is not privileged. If, however, there is some kind of issue with respect to the law and somebody who is, let us say, the general counsel for a company and directs people to do work for them as a part of an investigation into what the company is doing, and then conceals it in order to investigate something that potentially is a legal matter or to advise the company, that arguably could be privileged. A person in that situation should discuss it thoroughly with counsel prior to using information.

Ways of Getting Around Attorney-Client Privilege

There is no way to get around attorney-client privilege in SEC whistleblower claims per se. There is, however, a way to make appropriate determinations as to whether documents are privileged, and there are procedures to use to segregate privilege from non-privilege documents. Additionally, many people who may ordinarily assume they can not make such a report are allowed to do so under certain circumstances, such as people who work in compliance in a firm.