So You Want to Blow the Whistle (Part 4): What Will My Attorney Do?
This is the fourth entry in a six-part series on the process and practical realities of being a whistleblower and exposing fraud against the government.
Part 4: What Will My Attorney Do?
Once you have selected an attorney to represent you in a whistleblower case, it’s natural to wonder what exactly that attorney is going to do for you. In a False Claims Act case, the immediate goal is to prepare a complaint to be filed under seal in federal court, which will be served on Department of Justice (DOJ) officials. Sounds easy, but it’s not.
“Extraordinary claims require extraordinary evidence.”
– Carl Sagan
Your attorney is going to want to understand everything you know about the different types of fraud and misconduct you are alleging and the evidence you have to support those claims. If you have documents that help prove the fraud, your attorney will want to review them and will almost certainly have follow up questions for you about what those documents are and what they mean. Your attorney may ask you to gather more evidence if you are still in a position to do so.
If your lawyer is asking you tough questions and attempting to poke holes in your story, then you know you have made a wise selection. Proving fraud is never easy, and even for an insider with a wealth of knowledge and evidence, there are going gaps in what they know and what they can prove. The fact that your attorney may be asking tough questions and challenging your assumptions does not mean they don’t believe you. Your attorney is just trying to understand where your case is strongest, where it might need shoring up, and where there are open questions. Those clients who actively participate in this process and readily acknowledge the potential weaknesses of their case are always better off in the end.
“There is no substitute for hard work.”
– Thomas Edison
Next, your attorney must roll up their sleeves and get to work, researching the applicable regulations and laws and drafting a comprehensive complaint that captures with specificity your allegations. Firms that specialize in representing whistleblowers and filing qui tams should be adept at analyzing complex regulatory schemes or government program rules to ascertain whether your claims, if true, constitute a viable False Claims Act violation.
It is the attorney’s job to figure out which of your claims are stronger and which of them are weaker, and to talk honestly with you about which of your claims, if any, are really worth pursuing. Asking hard questions on the front end and tossing out weaker arguments is an essential part of building your case and is a critical part of your attorney’s role in helping you. On the flip side, your attorney may also identify fraudulent schemes that you had never even thought about, based on the information that you have provided.
“The only thing necessary for the triumph of evil is for good men to do nothing.”
– Edmund Burke
Finally, your attorney will discuss the realities and practical consequences—both positive and negative—of coming forward as a whistleblower and, more specifically, of filing a lawsuit under the False Claims Act. This type of counseling requires both an understanding of relevant employment laws (including the laws prohibiting retaliation) and just plain old good judgment. If your claims are true and constitute a violation of the False Claims Act, then coming forward could help the government stop a bad actor from defrauding taxpayers. At the same time, there can be professional consequences to becoming a whistleblower, and you should discuss those in detail with your attorney.
After your attorney has (1) scrutinized your evidence, (2) convinced himself/herself that the evidence demonstrates a False Claims Act violation, and (3) explained your options and their consequences, then the next step is usually filing a complaint in federal court that is served on DOJ officials. Our next two entries in this six-part series will cover in more detail both how the False Claims Act works and what happens after your complaint is filed.
Want to learn more? Check out our previous posts on the “So You Want to Blow the Whistle” series:
