Unanswered Questions In Representing Whistleblowers

The bar discipline case against an attorney for the alleged GE whistleblower who was sanctioned by the District of Columbia Court of Appeals last week has concluded, as the informal admonition ordered by the Board on Professional Responsibility has been posted on the Bar’s web page.

This confirms that Disciplinary Counsel will not appeal the board’s order.

The text of the admonition in part

In November 2007, Ms. Koeck met with you to engage you to represent her in an administrative action for wrongful discharge, which she had file against GE. She had been employed as an in-house lawyer by General Electric Consumer & Industrial, a division of GE, from January 2006 to January 2007. GE had discharged her. Ms. Koeck advised you that in the course of her employment as an in-house counsel, she had discovered evidence that she believed showed GE was engaging in tax fraud in Brazil. She said that she had reported the issue to her superiors but that they took no action to stop the alleged fraudulent activity. Ms. Koeck said that she believed GE had retaliated against her for reporting the alleged tax fraud within the company and had terminated her employment because she objected to the alleged fraud. She also told you that she had taken documents related to the alleged fraudulent activity with her when she left GE to be able to show that she did nothing wrong and why GE had fired her. The documents that Ms. Koeck had retained included client confidences and/or secrets.

Ms. Koeck was also represented by G. Robert Blakey, her former law school professor. Mr. Blakey discussed Ms. Koeck’s case with you, and the two of you agreed that Ms. Koeck should contact the press, advise it of the alleged fraud, and provide it with supporting documentation. You believed that this “press strategy” would put pressure on GE to resolve Ms. Koeck’s administrative case. In December 2007, you told a lawyer representing GE “words to the effect of ‘I have marching orders to go to the press unless you … agree[] to mediate within the next week or so.”‘ This attempt to invoke mediation failed when GE declined to mediate.

You remained eager for something to appear in the press because you believed that a news article would be the “best thing” for the lawsuit. With your knowledge and encouragement, Mr. Blakey contacted a reporter, David Cay Johnston, to see if he might be interested in the story. Mr. Johnston was interested, and with your knowledge and agreement, Ms. Koeck met and discussed her story with him and provided him with hundreds of pages of internal GE documents. Mr. Johnston sought to run the story in The New York Times. but the Times did not publish it. When you became aware that the Times was not going to publish the story, you made efforts to interest a reporter from The Washington Post. Mr. Johnston eventually published an article in Tax Notes International on June 30, 2008, entitled “Blame it on Rio, GE’s Brazilian headache.” The article relied heavily on internal GE documents that Ms. Koeck, with your encouragement, had supplied.

A Hearing Committee found that your conduct violated D.C. Rule of Professional Conduct 8.4(a), in that you knowingly assisted Ms. Koeck in violating Rules 1.6{a), revealing client confidences and secrets or using a confidence and secret to the disadvantage of a former client. The Board on Professional Responsibility adopted the Hearing Committee’s finding and directed me to issue you an Informal Admonition.

Professor Blakey was informally admonished in 2015 in a letter that acknowledged his substantial and honorable career

You will be 80 years old in January 2016 and have been practicing law for more than 55 years with no discipline. You have an exemplary record of public service. While on leave from academic posts, you served for five years as Chief Counsel of the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary and for three years as Chief Counsel and Staff Director of the United States House Select Committee on Assassinations.

Aside from these assignments, for the past 50 years your primary occupation has been as professor of law at the Notre Dame Law School. You retired from full-time teaching in 2012 and are now· an emeritus professor of law.

The admonition in In re Bernabei can be found at this link.

The reader should be aware that I have worked with Ms. Bernabei and her firm in the past and unhesitatingly refer matters to her.

While I fully understand the wish of the parties to bring this to an end (the case was docketed in 2012), there are important unresolved issues in representing whistleblowers that will not have the benefit of the views of the Court of Appeals.

We do know the views of the present Disciplinary Counsel, who personally handled these cases and the one against Thomas Tamm.

The reader should be aware that I was part of the Tamm defense team. (Mike Frisch)