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Kathleen Clark
Professor of Law, Washington University in St. Louis
Interests: Legal Ethics, Government Ethics, The Law of Whistleblowing, National Security Law
Recent Activity
An agreement to accept payment in exchange for not disclosing criminal conduct to government authorities would be unenforceable as a matter of public policy. In addition, if the illegal conduct included violations of federal securities laws, such an agreement could also violate an SEC regulation, 17 CFR § 240.21F-17(a): "No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement (other than agreements dealing with information covered by § 240.21F–4(b)(4)(i) and § 240.21F–4(b)(4)(ii) of this chapter related to the legal representation of a client) with respect to such communications." You may want to look at the SEC's recent enforcement actions against companies that have used overly strict confidentiality agreements. Here are two examples: Its enforcement action against KBR: Its enforcement action against Blue-Lilnx
David Danon ( was unable to post a comment on this website, and so asked me to post this comment for him: "Hi. I am David Danon, the Vanguard whistleblower. I would like to comment on the court decisions. Those with significant interest in the ethics of lawyers as whistleblowers and the NY case should read the article by Dennis Ventry, a professor at U.C., Davis - School of Law who has written extensively and thoughtfully about whistleblowers, in the following link: I never contacted Professor Ventry; his interest in my case was entirely independent. The NY decision, which the federal court followed was, as Professor Ventry states, "wildly wrong" in many respects but I'd like to focus on the following astonishing error: Both courts interpreted Vanguard's willingness to keep me on after my January "soft termination" (six months to find work) as evidence against my retaliation claim. This is expressly contrary to the meaning and purposes of Dodd Frank retaliation under which: "No employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms and conditions of employment because of any lawful act done by the whistleblower." The courts' rulings would establish a sort of a beating-with-a-hose playbook for retaliation; harass and demote all you want, just make it look like the WB left sort of voluntarily. This is antithetical to Dodd Frank and the SEC view. In fact, employers have every interest in Goldilocks "not too much, not too little" retaliation because they know that if they treat a WB too harshly he/she may have nothing left to lose and report violations to the authorities. Vanguard's workplace discrimination against me clearly fits within Dodd Frank's anti-retaliation rules yet both the NY and federal judge interpreted Vanguard's failure to walk me out the door as a fact against me.
Bryan Johnson's response after being called to account for his violation is a textbook example of how to responsibly handle an accurate accusation: He acknowledged his error. He explained how his mistaken thinking led to his error without attempting to justify that error. He allowed others -- the lawyer representing him & colleagues who had worked with Johnson -- identify mitigating factors. Judge Gee "sentenced Johnson to 75 hours of community service with a certified public institution as well as completing two legal ethics courses within the next six months."
FYI, I wrote about this phenomenon, which I called "runaway lawyers" (i.e., government lawyers who are not tethered to a client) in this article: Confidentiality Norms and Government Lawyers, 85 Wash. U.L. Rev. 1033 1062-68 (2007) available at:
I'd like to see the legal analysis of government ethics issues that presumably preceded this solicitation. A few additional thoughts about this: 1) Is it clear that Secretary Sebelius was acting in her personal -- rather than official -- capacity? 2) This incident may illustrate the sometimes obscure concern that motivated Congress to criminalize salary supplementation (18 USC 209). Congress wants to control -- through appropriations -- what executive branch agencies do. Allowing agencies to solicit additional funds from private sources undermines Congressional control over executive branch agencies. 3) Does HHS have the authority to accept gifts? If so, would that be a legal route to accomplishing her goals?
What might not be obvious from these videos -- but became clear from Adam Reposa's presentation at the APRL conference -- is that Adam Reposa is a cause lawyer. ("a cause lawyer is one who works out of the professional mainstream . . . engaging in moral activism for marginalized clients"
If you're interested in reading more about Matt Diaz, check out my analysis of Diaz and other government lawyer-whistleblowers in Confidentiality Norms and Government Lawyers, 85 WASH. U.L. REV. 1033 (2007) (
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Jun 1, 2012