How Long Does It Take to Whistle?

ABAJournal.com has a post entitled, “Paralegal Blows Whistle on Ex-Boss, Says Cash Went in Book on Shelf; Lawyer Suspended for One Month,” that is interesting for a number of reasons all of which relate to an issue which has been a frequent topic here recently – paralegals dealing with unethical conduct on the part of the attorneys for whom they work. (In fact I’ve now made it a sub-category of its own, “Whistleblowing” under “Ethics.”)

In this instance the conduct was fairly clearly unethical:

The paralegal was a witness for the prosecution in the attorney discipline case, testifying that Kersenbrock didn’t deposit a number of client retainers into her trust account when she worked for the attorney between 2005 and 2010. Instead, Kersenbrock put retainer checks into her law firm operating account and put cash retainers into a drawer or in books on her bookshelf, then spent them when she needed money, the paralegal testified.

While I like to use these reports as lessons for paralegals, it appears the real lesson here is for attorneys. This is because the paralegal did not “blow the whistle” until after she was no longer employed by the attorney. While there is not nearly enough information in the story (or in the court’s opinion) to justify being judgmental, it does take some of the luster out of “doing the right thing.” It begins to look like the whistle is being blown only as retribution against an attorney who sacked the paralegal. In this instance, the paralegal not only testified against the attorney, but actually filed the complaint that lead to the ethical investigation of the attorney. It maybe, however, that the sacking was the result of the paralegal’s objections to the attorney’s unethical action, but that does not appear likely. According to the Court’s opinion:

Anderson worked for Kersenbrock as a paralegal from 2005 to 2010. Anderson testified Kersenbrock received retainers in most of her cases. She stated Kersenbrock did not deposit any retainers into the client trust account early on in her employment. About fifty to fifty-five percent of the retainers were checks, and forty-five percent were made by cash.

Just to be perfectly clear, if the conduct is unethical in 2010 after the employment ended, it was unethical in 2005 – 2010 while the employment continued. The decision on whether to blow the whistle on attorney ethical violations is a whole lot harder to make when one’s job is still on the line.

 

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