Ombuds Perspective on Whistleblowing Laws

Last week, we had wonderful talk entitled Blowing the Whistle on Whistleblowing Laws.  Attorney Charles L. (Chuck) Howard is one of the few attorneys in the U.S. with extensive expertise in the legal issues of ombudsmen. Howard has a national practice in representing organizational ombudsmen at universities, multinational corporations, and research institutions.  His new book, entitled The Organizational Ombudsman: Origins, Roles and Operations–A Legal Guide, was just published by the American Bar Association (ABA) and is the nation’s definitive resource book about ombudsmen, mediation, and their impact in the workplace.

In this presentation, he explored how fear of retaliation limits the effectiveness of whistleblower laws and policies. There are hundreds of whistleblower laws in the United States that provide incentives for people to report misconduct and prohibit retaliation against them for doing so. While recoveries from laws like the False Claims Act are significant, the perception — and often the reality — of what happens to whistleblowers who do come forward is that they pay dearly for their actions. In addition to trying to reward whistleblowers, why are we not also looking for better ways to help people address workplace conflict or misconduct without having to be a whistleblower? Howard argued that an organizational ombudsman can help an organization address this gap between encouraging the reporting of misconduct and protecting those who raise issues.

Several of my students’ comments about the talk are below: 

When a classmate asked me about the Chuck Howard presentation, all I could say is that “the system has failed, and I have no idea how to fix it.”  Howard argued that the current whistleblowing procedures are ineffective.  Businesses have inadequate internal procedures for whistleblowing, which is why the claim makes it to the legal process.  However, Howard spent most of his time explaining that the whistleblowing laws are also ineffective.  The main flaw is that it is still too easy for employers to retaliate against whistleblowers.  Because we live in an adversarial system, once an individual blows the whistle on misconduct in the workplace, he or she will inevitably soon find themselves in a lengthy, expensive, and stressful litigation process.  Howard painted a dark picture of how this litigation process tragically changed the lives of many whistleblowers. He concluded the presentation by offering the ombudsman model as a solution to the problems of whistleblowing laws, but, while good in theory, it would seem that the model’s success will depend on a firm putting forth sound internal rules and procedures around the ombudsman position.  Do firms have the right incentives to adopt such a model?

Is whistleblowing an ethical obligation to ruin your career? After last week’s talk, it is frightful to think that at some point, I may be in the same situation that many unfortunate, yet dutiful, employees have found themselves in. Many careers mandate that certain unethical or unsafe conduct be brought to the higher-ups’ attention. This is exactly what many people have done. In fact, had they not, they would have faced consequences with their own employers or professional associations. That being said, it is remarkable that some whistleblowers are prosecuted, or threatened with prosecution, after choosing to do the moral and legally correct thing. If the laws are not actually protecting what is most important to a professional, reputation, then what is the incentive to blow the whistle, particularly in matters where someone is unsure if a violation or wrongdoing is actually occurring?

Cross posted at Indisputably.

This Post Has 2 Comments

  1. Nick Cerwin

    A rock and a hard place, also known as the ethical rules for attorneys and the sure retaliation by employers. As a student in both Professor Scheider’s law governing lawyers class and the alternative dispute resolution class, we have discussed at length the ethical obligations of attorneys to “whistle blow” to some degree on ethical violations by other attorneys, bosses, and companies. Often times, the whistle blowers are reporting their own companies or bosses in this process, and subsequently face the harsh sting of trying to do the right thing and being punished for it.

    We have discussed this point in class several times, and the best answer that has come up when faced with such an ethical dilemma is to start looking for another job before you decide to blow on that proverbial whistle. I find my self questioning why this has to be the case. Why is it such a “bad thing” to do the right thing? Why should an attorney who is just trying to sleep at night need to look for a new job because if he or she turns in his boss or company, he will surely be fired at some point? While this may be more of an ethical concern rather than a advanced dispute resolution concern, it does affect both subject areas. The solution to such a problem seem to be two-fold; First, create better ethical rules that take the guess work out of reporting violations, and second, create better avenues for whistle blowers to sound the alarm while still protecting their job.

    First, ethical rules provide far too much leeway to a profession which should be upholding some of the highest moral standards. As attorneys, we are often tasked with casting the first and subsequent stones at other parties on behalf of our clients. We do our best to put blame on other parties, but as a field, we do our very best to take blame off our selves. The ethical rules give options of reporting certain issues, and even if there are not optional reporting, the rules are loose enough for even unskilled word-smiths to bend the rules. I find this rather appalling. If the legal field is going to be largely self monitored and scrutinized, we should hold ourselves to the highest standards by erasing the ability to choose whether to be ethical, and by cleaning up the rules to make them more clear. I personally think that whistle blowers are frowned upon in many circumstances because people feel that they did not have to make the decision to tattle. If we take away that option and make more mandatory disclosure, this option would be nullified, and people could simply fall back on the rules for guidance rather than loopholes.

    Second, even with a rule change, whistle blowers should have better means of reporting violations, and protections for doing so. This would not only be inside the the company being reported, but industry wide. This may be in the form of practices within companies to deal with reporting violations, but also industry wide perception changes. It should not be a bad difficult thing to do the right thing.

  2. Mark McGill

    First, I couldn’t agree with what Nick Cerwin said in his comment any more in that I believe that the legal profession is one which should be upholding some of the highest moral standards. Beyond that, though, I question how the profession should go about setting that high moral standard. Should it be the rule makers or us as future lawyers who create that higher moral standard?

    I’ve been sitting here reading some of the posts from my classmates and Kristina Minor lauds Senator Feingold for having a belief and sticking with it even in the face of his likely job loss, and I can honestly say my reaction was more “isn’t there a better way” than “good for him.” While the circumstances aren’t identical they are similar and I question, wasn’t there a way for him to stand by his beliefs without losing his job, a way that would have allowed him to continue the good he was doing while still maintaining his own moral and ethical standards?

    Which I guess led me to Nick’s post and his sentiments, many of which I shared when I took The Law Governing Lawyers and I asked some similar questions and was challenged to think about them more critically. Now in reading this and weighing it against my thoughts about Senator Feingold, I don’t know if there was a better way or not, but I hope that if I’m faced with a similar choice that I make the decision that allows me to look myself in the mirror, and to me that’s the key question regarding this post.

    If people in our chosen profession are going to be held to a higher moral standard, should that be because someone wrote rules that force us to uphold that standard or because we, as future lawyers, hold each other to that standard?

    I can only speak for myself but I find it hard to believe that morals and ethics are nearly black and white enough to be covered in a set of a rules and regulations that force us to do the right thing or that even tell us what the right thing to do is. I believe that if our profession is ever going to reach the “highest moral standard” to which Nick refers that’s it going to start here, with us as law students looking to our left and our right and knowing that we have to hold ourselves to that standard because the people around us and our profession demand it of us, not because the rules make it easy for us to do that.

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