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According to Moberly (2007) "during its first three years, only 3.6% of Sarbanes-Oxley whistleblowers won relief through the initial administrative process that adjudicates such claims, and only 6.5% of whistleblowers won appeals through the process... administrative decision makers strictly construed, and in some cases misapplied, Sarbanes-Oxley's substantive protections to the significant disadvantage of employees" (p. 65).
Legal questions also arise regarding an employee's duty to speak out against a legal infraction. This is an especially complex subject for professionals such as accountants who are bound by confidentiality. Rule 301 of the AICPA's Code of Professional Conduct states that all accounting information is confidential unless the client gives written permission for it to be released. This provision was a serious issue in the case of United States v. Textron Inc. And Subsidiaries [507 F. Supp. 2d 138 (D.R.I. Aug. 28, 2007)]. In this case the IRS was asking Textron's accounting firm to reveal their clients' 'workpapers', claiming that SOX laws override Rule 301. However, "The court found that Textron had waived the attorney-client privilege and the tax practitioner -- client privilege when it provided the workpapers to its independent auditors. Nevertheless, the court found that Textron did not waive...
Furthermore, the court relied on AICPA Code of Professional Conduct Rule 301…" (Gabbin & Wells, 2008).
While there are both ethical and legal issues involved in whistleblowing cases, the legal rules tend to be more straightforward than the moral ones. However there is undoubtedly a great deal of ambiguity involved in both types of decisions. Any person who is contemplating blowing the whistle on their employer needs to understand that while whistleblower laws are designed to protect them, that does not always mean that they will.
References
Gabbin, A.L. & Wells, J.T. (2008) Tax workpapers and work product privilege, The CPA Journal, Retrieved 5 November, 2009 from http://www.nysscpa.org/printversions/cpaj/2008/408/p66.htm
Kohn, S.M. (2008) Sarbanes-Oxley Act: Legal protection for corporate whistleblowers, National Whistleblowers Center. Retrieved 5 November, 2009 from http://www.whistleblowers.org/index.php?option=com_content&task=view&id=27
Moberly, R.E. (2007) Unfulfilled expectations: An empirical analysis of why Sarbanes-Oxley whistleblowers rarely win, William and Mary Law Review, 49, 65-72
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