Whistleblowing – we all know what it is but how much time are we dedicating to it?
AML and sanction concerns are top of every firm’s agenda right now, but whistleblowing is an area where expectations are tightening and lax lawyers could be at risk.
In January 2020, the SRA released its guidance note on whistleblowing. This clearly sets out its approach to receiving information from the public, from lawyers and from other people working in the legal sector.
The SRA is clear that whistleblowing is relevant to all legal practitioners and should be on the radar of all departments. Many law firms offer whistleblowing training sessions for newly recruited juniors but how often are they revisited for all members of staff?
Often it is HR or wellbeing issues that evolve into whistleblowing situations. All too frequently we see cases of junior members of staff pressured into doing something irregular by a superior and losing their job as a result. Unfortunately, it is rare that a whistleblower escapes either the stress or consequence of speaking out and often the affected law firm also finds itself in reputational disgrace. Both must be mitigated against.
Rightly or wrongly, the infamous John Doe of the Panama Papers case continues to live in fear of his or her life. That case, alongside other recent global whistleblowing scandals, prompted the European Whistleblowing Directive which was implemented by all member states in March 2023.
The Directive will only impact UK law firms who ‘operate’ in the EU, but such businesses must seek guidance on the extent of this and take the appropriate steps to be compliant. The EU Whistleblowing Directive has more comprehensive regulations than UK legislation in some areas, notably regarding internal reporting channels.
Closer to home, a new Protection for Whistleblowing Bill was introduced for reading into the House of Lords in 2022. The future of the bill and whether or not it will progress to the House of Commons is yet to be confirmed, but it’s definitely one for law firms to watch.
In another nod to rising whistleblowing concerns, and perhaps recognising the frequency of cases where young whistleblowers have fallen on their swords, the SRA issued new guidance on wellbeing at work in May. This updated guidance outlines how the SRA ‘expects firms to build a working culture in which more junior staff feel able to complain without fear of recriminations.’
SRA Chief Executive, Paul Philip, said: ‘The legal sector can be a very fast-paced and demanding environment in which to work. While it is up to firms how they run their individual businesses, it does become a regulatory issue if poor working cultures start to impact staff wellbeing, behaviour and ultimately standards of service to the public. That is where we have a duty to act.’
It is the reference to ‘poor working cultures’ which resonate strongest with whistleblowing. Culture is a difficult term to define and never has it been harder to manage than in our post pandemic working environments. It can be incredibly hard to nurture and maintain a shared set of behaviours when employees are often distant and working in silos.
Your firm’s norms and cultures may have shifted over the past few years, for better or worse, but whatever changes have taken place, there must be top driven leadership to ensure cultures of non-compliance are not taking root. Not only does this put individuals at risk, but it also threatens your firm’s reputation among clients and potential future employees.
It’s undeniable that whistleblowers provide an important service to law firms and wider society. A clear whistleblowing policy enables confidential reporting of irregularities protecting your staff and firm, alongside your wider reputation.
If you don’t already have one, consider creating a workplace culture policy which includes a consistent, effective and compliant approach on whistleblowing. But do ensure this is not simply a paper exercise, there must be a visible culture of compliant behaviour in practice. It’s no use having a policy, if it’s universally acknowledged internally that a certain member of the team is still happily backdating documents! ‘Better a thousand enemies outside the house, than one in it’ says one wise Arabic proverb. Create a clear and consistent culture of compliance and you can ensure that while every employee rightly carries a whistle, at your firm, they never need to blow it.