Whistleblowing as an in-house solicitor
As a solicitor, you have a duty to the rule of law and wider society and you are specifically obliged to report wrongdoing in some circumstances under the SRA Code of Conduct for Solicitors, RELs, RFLs, and RSLs.
But you are also bound by your duties of confidentiality to your client (your employer for in-house solicitors) and the principle of legal professional privilege (LPP).
These duties cannot always be reconciled easily, and if you breach any, you may face various consequences.
These range from a small fine or a breach of contract claim to a criminal sanction or being struck off by the SRA. This is in addition to the risk of victimisation faced by all whistleblowers.
This guidance sets out key points to think about when raising (or considering raising) public interest concerns and includes a checklist of questions to consider.
If you find yourself working in an organisation that has no whistleblowing policy, then you may wish to encourage it to adapt the model whistleblowing policy for its own purposes.
The SRA recognises that reporting wrongdoing may well conflict with your competing obligations.
If you wish to report a wrongdoing but are concerned about confidentiality and LPP, you can call the SRA’s professional ethics helpline on 0370 606 2577 or email professional.ethics@sra.org.uk.
You can contact this helpline at the very early stages of your concerns and provide the information anonymously on a no-names basis.
You can also contact the Law Society’s Practice Advice Service.
The law protecting whistleblowers is complex. At any stage of the process, you can also get free, confidential, independent advice from the charity Protect.
Protect can help you determine how to raise concerns in the safest and most effective way and can also discuss your legal rights under the whistleblowing law.
See the checklist of questions when you are considering whether and how to report wrongdoing.
Questions to consider
1. Check you are going to disclose specific information with factual content, not suspicions or unfounded allegations and, where possible, stick to what you have seen first-hand. For example, stating your employer is taking a particular action which you believe it is harming the environment is more likely to be a protected disclosure than simply stating ‘you are damaging the environment’.
2. Check you reasonably believe that the information you propose to disclose demonstrates that one of the following categories of wrongdoing, risk or malpractice has taken place, is taking place or is likely to take place (you may also need to show that the organisation plans to ignore your advice and intends to commit the wrongdoing):
- miscarriage of justice
- damage to the environment
- danger to health and safety of anybody
- breach of a legal obligation – identify the obligation
- a criminal offence – identify the offence
- cover up of any of the above categories of wrongdoing
3. Check you reasonably believe making the disclosure is in the public interest. This usually means you are a witness to the wrongdoing rather than the issue centring on your own personal employment matters (for example, you alone being affected) for which a grievance is likely more appropriate.
4. Consider if you are implicated in the wrongdoing. Whistleblowing does not shield you from disciplinary action if you have also done wrong, and you may need to seek legal advice.
5. Consider whether reporting the wrongdoing would put you in breach of LPP. Whistleblowing protections will not be available to you if by reporting the wrongdoing you are breaching LPP. You may need to seek specific advice from the SRA on this.
6. Consider whether reporting wrongdoing would put you in breach of other regulations.
7. Consider whether you have a duty to report the wrongdoing. You may need to seek specific advice on your competing obligations as an in-house solicitor.
8. Assess your risk of being victimised at work and consider whether you want to raise your concern openly, confidentially or anonymously.
9. Consider whether reporting internally will be sufficient, and if so, who you should report the wrongdoing to. Can you go to your line manager? Should you go to the board/governing body/equivalent? Does your employer have a whistleblowing policy which states who disclosures should be made to and what procedure to follow?
10. If reporting internally is not possible or has already been tried and nothing has been done, consider whether you need to report externally. Consider whether you need to report the wrongdoing to a regulator and check which regulator has jurisdiction, as well as the confidentiality and LPP implications.
11. Consider the more personal ramifications (the potential impact on yourself and your family).
Will I be protected if I raise a concern?
As employees/workers, in-house solicitors benefit from the whistleblowing protections established by the Public Interest Disclosure Act 1998 (PIDA 1998) and incorporated in the Employment Rights Act 1996 (ERA 1996).
PIDA is also referred to in this guidance as the ‘whistleblowing legislation’.
You therefore have the right not to be dismissed (section 103A ERA) or suffer a detriment (section 47B ERA) due to making a protected disclosure.
But to be protected, your disclosure must be a “qualifying disclosure” and must satisfy the following four conditions:
(1) You have made a disclosure which you reasonably believe tends to show one of the following:
- that a criminal offence has been committed, is being committed or is likely to be committed
- that a person has failed, is failing or is likely to fail to comply with a legal obligation to which they are subject, including sexual harassment (the new Employment Rights Bill will amend whistleblowing law by making sexual harassment its own standalone type of wrongdoing about which an employee can blow the whistle)
- that a miscarriage of justice has occurred, is occurring or is likely to occur
- that the health or safety of any individual has been, is being or is likely to be endangered
- that the environment has been, is being or is likely to be damaged, or
- that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed
In practice, this can be a difficult condition to fulfil.
An in-house solicitor often provides information/advice on the assumption it would be taken into account in ensuring that the employer does not commit such an offence/fails to comply with any legal obligation.
This does not necessarily amount to a disclosure which tends to show that the employer is likely to commit a criminal offence or likely to fail to comply with a legal obligation (see, for instance, Mrs Fatiha Alaoui v Calabrio UK Limited 2216420/2023).
In most cases, you would also need to show that the organisation plans to ignore your advice and intends to commit the criminal offence/breach the legal obligation.
(2) You have a reasonable belief that the disclosure is in the public interest. Personal grievances about your own treatment at work are not typically covered unless there is a public interest element to any such grievance.
(3) You have made the disclosure in accordance with the law and the act itself of disclosing is not a crime (section 43B(3)) – relevant for instance for in-house solicitors employed by the Ministry of Defence or others who are subject to the Official Secrets Act and; and
(4) You do not disclose information which was disclosed to you in the course of obtaining legal advice, if that information could be the subject of a claim of legal professional privilege. For example, if an in-house solicitor disclosed information that had been brought to them by another employee for the purpose of obtaining legal advice in relation to it (and the information is therefore privileged), the in-house solicitor may not be entitled to whistleblower protection. See below for more details.
The whistleblowing legislation is drafted broadly to capture a wide range of circumstances. This captures:
- reporting within an organisation – where you report wrongdoing to a representative of your employer (usually someone senior to you)
- reporting externally to a third party (such as a regulator) – though additional conditions apply when you report a concern externally
The protection is easier to access when you report wrongdoing internally or to a prescribed person (that includes MPs and many regulators, but not the SRA) but much more difficult when you report elsewhere (in the media for instance).
The right not to suffer detriment (section 47B ERA) is available to both employees and workers, which in-house solicitors will be in most, but not all, cases.
Partners who are members of an LLP can be regarded as workers (Clyde & Co LLP v Bates van Winkelhof [2014] UKSC 32).
Another issue in relation to a whistleblowing dismissal claim is that the legal test is quite stringent. The whistleblowing has to be the principal reason (section 103A ERA).
In cases where you discover fraudulent conduct within the organisation, feel compelled to blow the whistle and unable to continue to work for the organisation, and resign, the principal reason for your resignation may be the conduct which caused you to make the protected disclosure rather than the treatment by the employer in response to the protected disclosure.
Whistleblowing and legal professional privilege
Legal professional privilege (LPP) includes both litigation and legal advice privilege.
Litigation privilege arises in respect of communications between (i) a client and their solicitor and (ii) a client or its solicitor and a third party where the dominant purpose is litigation and the communication relates to the litigation, which is pending, contemplated or existing.
Legal advice privilege applies to confidential communications between a client and a solicitor where the dominant purpose of the communication is for giving or receiving legal advice. This is likely to be the most common form of LPP applying to communications between in-house solicitors and their employer.
For more information, see the Law Society practice note on LPP and SRA guidance on LPP when working in-house.
Why is LPP an issue?
The whistleblowing legislation has a specific exception relating to information that is subject to LPP because of the importance of a client being able to consult a lawyer without fear of those communications being disclosed to a third party.
Section 43B(4) ERA states:
“A disclosure of information in respect of which a claim to legal professional privilege…could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.”
Essentially, this means you may not get whistleblower protection if your whistleblowing is about legally privileged information (for instance, information which has been disclosed to you by a person who is seeking legal advice).
This applies even though your disclosure would comprise a ‘qualifying disclosure’ in all other respects.
If you disclose information that attracts LPP, your right to assert that your disclosure is a “qualifying disclosure” for the purpose of the whistleblowing protection is lost.
This is potentially quite wide-ranging.
As in-house solicitor, you may, for instance, have been copied into an email discussing the issues raised in the disclosure.
Even if the email does not ask you for advice, the employer could argue that the email was aimed at keeping you informed “so that advice may be sought and given as required” (R (Jet2.com Ltd) v CAA [2020] QB1027 (CA)).
Information disclosed to you in those circumstances by someone who can be regarded as the client will be subject to LPP, and disclosure of that information by you will not entitle you to the whistleblowing protections, subject to certain limited exceptions.
LPP can sometimes be used by employers to resist the disclosure of documents in a whistleblowing claim. That is to say, the employer may legitimately argue that the documents needed as evidence are privileged and therefore cannot be disclosed.
For example, if you are seeking to show that you have suffered detriment as a result of whistleblowing, the documents you would rely on to support this claim may be privileged because they were first provided to you by the client.
Disclosure not subject to the LPP exemption
Firstly, most, but not all, communications between a client and their legal adviser will be confidential, and not all confidential communications will attract LPP.
Communications where legal advice is not being sought and litigation is not anticipated, such as general commercial considerations and non-legal matters such as strategy and operations, are unlikely to be privileged.
Although these communications may still attract confidentiality, they may be disclosed without loss of whistleblowing protection.
Your concerns may also be partly based on information disclosed to you in the course of legal advice being obtained but partly on other information.
You could make a disclosure of that other information which might enable you to provide an overview of the circumstances which you believe relate to a wrongdoing.
In practice, it may be difficult to separate the legal from the non-legal elements.
But if the legal and non-legal elements are not too intermingled and can be separately identified, you can redact the parts of the document covered by LPP.
There are also exceptions to when LPP applies:
- iniquity exception: this exception prevents confidentiality, and therefore also LPP, in relation to documents brought into existence for criminal or fraudulent purposes. Essentially, this means that you cannot be accused of breaching LPP for public policy reasons. However, the exception is only available where there is a strong prima facie case (not just a reasonable belief) that these serious acts are happening or are about to happen. And it only applies if you were given the information for the purpose of assisting in (“furthering”) the criminal or fraudulent purpose. It does not apply if you simply give advice in the context of some apparent iniquitous activity (Various Claimants v News Group Newspaper [2021] EWHC 680). It is a narrow exception that rarely applies.
- waiver of privilege: the LPP belongs not to you (as the solicitor) but to your client, and therefore can be waived only by your client. LPP will no longer apply where the client consents to the use of privileged material by another party or chooses to disclose the information to the other party. This can be done by an express waiver of privilege, but it can also happen by implication such as where the client has disclosed the communications, which would otherwise attract privilege, to third parties. However, in one employment tribunal decision it was held that such a waiver would not prevent the LPP exemption applying to what would otherwise be a protected disclosure unless it had taken place by the time of that disclosure (see case study below).
If the communication with you as the in-house solicitor is subject to LPP, it does not necessarily follow that the disclosure of the information internally (back to the employer) is a breach of privilege.
A breach will not occur in cases where there is no loss of confidentiality in reporting wrongdoing to the client employer though this is not always straightforward.
An employer intent on defeating a claim could argue that a whistleblower is breaching privilege by disclosing to the internal whistleblowing team information given by (for instance) the CFO.
The ‘client’ could be interpreted restrictively as being the CFO only, therefore reporting to the internal whistleblowing team would be breaching LPP.
In any event, there are still policy reasons for the protection of client/solicitor confidentiality such as to prevent communications being placed in a tribunal.
Even if reporting to the internal whistleblowing team would not in itself be a breach of LPP, hypothetically, the information could give rise to a breach of LPP further down the line.
Case study: Ms R Smith v Scapa Group plc and others: 2400172/2017
In this Employment Tribunal decision, section 43B(4) was held to apply to an internal disclosure back to the person who had sought the advice on the basis that the information could be the subject of a claim of privilege, even though it did not involve a breach of privilege.
The claimant was the general counsel and had blown the whistle to the CEO, alerting him that what he had told her he intended to do amounted to a breach of the law.
She was arguing that she was not breaching any privilege as the CEO was the one who gave her the privileged information in the first place, and she was only whistleblowing back to him.
She also argued that at the time of the tribunal hearing, the information was not privileged any more, as the company had disclosed it as part of the litigation process.
But the tribunal still considered that section 43B(4) applied, even if there had been no breach of privilege, and even if the information was not privileged any more, as long as it was privileged when the worker made the disclosure.
Would I be in breach of other duties/obligations as a solicitor if I blow the whistle?
If you are an employee, as an in-house solicitor, you also owe a general duty of loyalty and confidentiality to your employer.
As a solicitor, you are also under the obligation to keep client (employer’s) affairs confidential.
There can be some tension between your duty to your client/employer and your other regulatory duties to report the wrongdoing (see below).
The SRA has provided non-exhaustive guidance on situations where your duty of confidentiality may be overridden.
More detail is set out in the SRA guidance on confidentiality of client information, but essentially these exceptions relate to:
- where a client has indicated their intention to take their own life or to seriously self-harm
- safeguarding concerns and preventing harm to children or vulnerable adults
- preventing the commission of a criminal offence/the iniquity exception
Even in these circumstances, the SRA advises that you must always have regard to your duty of confidentiality which can only be overridden in rare circumstances.
The SRA recognises that reporting wrongdoing may well conflict with your competing obligations.
The SRA also advises that when a conflict arises between principles, the SRA prioritises those that protect the wider public interest.
Where any of the SRA Principles (relating to the fundamental ethical behaviour of solicitors) come into conflict with each other:
“those which safeguard the wider public interest (such as the rule of law, and public confidence in a trustworthy solicitors’ profession and a safe and effective market for regulated legal services) take precedence over an individual client’s interests.”
As SRA guidance 7.2 requires, you should be “able to justify your decisions and actions in order to demonstrate compliance with your obligations under the SRA’s regulatory arrangements.”
When a conflict arises, it is therefore advisable that you articulate and record the public interest justification for your decisions and actions.
Am I under a duty to blow the whistle?
Depending on the nature of the issue, you may be under a duty to report the wrongdoing.
As a solicitor, section 1 of the Legal Services Act 2007 and the SRA Code of Conduct for Solicitors, RELs, RFLs and RSLs require you to act with independence and integrity, maintain professional standards and act in the best interests of your clients.
This may in practice amount to a duty to alert your client/employer when you become aware of wrongdoing: it should normally be in your client/employer’s interest to know if wrongdoing is taking place (or is likely to take place).
Your employment contract may also impose express reporting obligations to your employer on matters within your sphere of responsibility and/or, depending on your role, the nature of the misconduct and how you became aware of it, these may be part of your implied duty of fidelity and good faith.
As you are under a duty to uphold the rule of law and proper administration of justice, you may also have a duty to report to a regulator (including to your own regulator, the SRA) for instance in cases of money laundering by other solicitors or law firms that you instruct and serious breach of the SRA’s regulatory arrangements.
The SRA’s Red Alert Line summarises its remit as “fraud, dishonesty or serious misconduct” committed by solicitors or law firms (0121 828 8619, redalert@sra.org.uk).
Refer to the SRA’s guidance – and use its professional ethics helpline for solicitors (0370 606 2577, professional.ethics@sra.org.uk), as this is not a straightforward issue.
There are also statutory duties to disclose specific wrongdoings.
For instance, the Proceeds of Crime Act 2002 makes it a criminal offence for those who in the course of their employment acquire information that another person is engaged in laundering the proceeds of drug trafficking but fail to disclose this to a constable as soon as reasonably practicable.
Reporting the wrongdoing may ensure you respect your obligation to act in the best interest of your client or to uphold the rule of law but may put you in breach of LPP.
You need to carefully consider in each case whether you need to report, to whom, to what extent, and whether you can report the wrongdoing without breaching LPP.
See more information on the pros and cons of reporting wrongdoing internally vs reporting it to a regulator or other (external) stakeholders.
See the checklist of questions to go through when you are wondering whether and how to report wrongdoing.
Reporting wrongdoing internally
Reporting wrongdoing internally to your employer might at least prevent you from being in breach of your duty of confidentiality.
Your line manager is usually the first point of call for reporting wrongdoing.
If you work as part of a legal department and are managed, for instance by a legal director or a general counsel, you are unlikely to breach LPP when you report to them.
Generally, a disclosure made to someone senior to you with express or implied authority over you is regarded as having been made to your employer and does not breach the duty of confidence either.
In some situations, you may want to bypass your line manager and go straight to the most senior person in your organisation or straight to the board or equivalent governing body.
You are unlikely to breach LPP if you report the wrongdoing directly to those with ultimate control in the organisation.
It may be hard to report to the board or equivalent governing body independently of the CEO, especially if you’re not the most senior solicitor in the organisation and/or you do not sit on that body.
If your employer has an internal whistleblowing policy, you may consider using an internal reporting line. This may allow you to remain anonymous.
However, this might still mean you are breaching LPP.
For instance, you may have been asked for legal advice by a specific person or department within the company, as separate from the rest of the company, which would make reporting a concern on it to a separate department (for example, the whistleblowing team) a breach of LPP.
Reporting wrongdoing externally
Raising a concern with the SRA
If you do not feel it is appropriate to raise your concern internally or you have done so but the issue has not been resolved, you may want to consider raising your concern externally.
Where you suspect wrongdoing by another solicitor or a law firm, the appropriate regulatory body to report your concern to is the SRA.
These reports are strictly limited to acts of wrongdoing by other individuals and firms regulated by the SRA.
However, there are also additional regulators such as the National Crime Agency and Information Commission that you may report specific issues to in relation to any individual or company whose acts fall within their remits.
Check the list of prescribed persons for whistleblowing purposes.
Read the full SRA guidance on when it is appropriate to report a wrongdoing to the SRA and how to do so.
Essentially, you can report a person or entity who is regulated by the SRA where you consider that they have breached the SRA Principles or other provisions in the SRA Code of Conduct for Solicitors.
When reporting a concern to the SRA might put you in breach of your LLP or confidentiality obligations, the SRA is able to serve a statutory production notice which will allow it to collect information and documents held by regulated firms and individuals, even when such information is confidential and/or protected by LPP.
Solicitors must comply with a statutory production notice from the SRA.
Where there is evidence to suggest that providing the information required might otherwise amount to a breach of their confidentiality obligations, these notices are routinely served on solicitors.
The SRA has a dedicated ‘red alert line’ for fraud. It is described as “exclusively for solicitors and their staff who know or suspect that another regulated person or their employee is involved in this specific misconduct.”
Call the SRA red alert line on 0121 828 8619 or email redalert@sra.org.uk.
To report other types of misconduct to the SRA, complete a report form and email it to report@sra.org.uk.
The SRA will review your report and evidence to determine whether the matter is serious enough to investigate.
If it considers that your concerns are serious and sufficiently well substantiated, the SRA will take appropriate disciplinary action in line with its enforcement strategy.
Raising a concern with a regulator other than the SRA
If you want to report wrongdoing by an individual or a firm who is not regulated by the SRA, the SRA will not be the appropriate body to contact.
However, you can still ask for the SRA’s advice if reporting those concerns might conflict with your professional duties.
As an in-house solicitor, you are likely to work for an organisation that is not a law firm and your employer is not regulated by the SRA.
In such a case, if you want to report wrongdoing committed by your employer, the SRA will have no jurisdiction so you should report it elsewhere.
For wrongdoing committed by an individual or organisation not regulated by the SRA (for instance, your employer if you do not work in a law firm, or an individual who is not a solicitor), you will need to contact the relevant regulator.
For example, you would need to contact the Financial Conduct Authority (FCA) for wrongdoing by a financial institution.
However, reporting wrongdoing to a regulator other than the SRA is likely to put you in breach of LPP. The SRA will not issue a statutory production which would enable LLP to be set aside.
You must therefore be careful when reporting to other regulators to provide only information that does not breach your LPP obligations.
Here are some examples of other regulators that might be useful:
- in certain circumstances, regardless of LLP (see the iniquity exception), you are required to make a suspicious activity report to the NCA under either the Proceeds of Crime Act 2002 or the Terrorism Act 2000 on the NCA’s online portal. The NCA is the UK’s lead enforcement agency against organised crime, human and drug trafficking, cybercrime and economic crime.
- the ICO is responsible for upholding information rights in the public interest. You are obliged to report a personal data breach to the ICO pursuant to the UK GDPR or the Data Protection Act 2018. However, this could put you in breach of your LLP obligations. You can make a report to the ICO by calling its helpline on 0303 123 1113 and selecting the option for whistleblowing complaints or by using its online portal. Where you are speaking to a member of their staff, the ICO asks that you make clear that you consider yourself to be making a protected disclosure under the whistleblowing provisions. The staff member will then be able to guide you to an online reporting tool to submit your protected disclosure.
Bear in mind that the confidentiality and LPP obligations set out risk making you in breach of your own regulatory obligations if you decide to report to other organisations, the wider public and the press.
In this framework
The role of the in-house solicitorProtocol for employing organisationsContract amendment letter templateJob description templateWorking effectively and ethicallyEthical organisational cultureEthical decision-making toolInteractive scenariosExplore the in-house ethics framework
Each element of the in-house ethics framework has been designed to offer structured support for different aspects of ethical practice.
The framework is intended to be a flexible and adaptable resource for your context and needs.
It can be used flexibly, whether as a reference tool, a basis for discussion within legal teams or various corporate support groups in your organisation, or a foundation for organisational policies and procedures.
We recognise that not every element will be useful in every organisation. You should use discretion in deciding which elements to use.
Because whistleblowing law is complex and there are many implications around legal privilege for solicitors considering whistleblowing, we’re launching these resources as a consultation draft.
We want to hear from you: your insights and experiences in your organisation will help us refine the guidance and model policy template to ensure they are practical and clear.
Share your feedback by Sunday 25 January 2026 so we can get this right together.
The elements can be viewed in any order, but you may wish to read the model whistleblowing policy template next.