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 end goal is to prepare a complaint to file in a federal court under seal that will be served on Department of Justice (DOJ) officials. Sounds easy, but it’s not.
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 that 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. It’s our practice to take a significant preliminary look at a client’s evidence before making a final determination to file a case. In some instances, clients struggle with the conflict between their desire for us to take their case and the need to for us to get a complete understanding of how the company will respond to the allegations and defend the case. Those clients that actively participate in this process and readily acknowledge the potential weaknesses of their case are always better off in the end.
Next, your attorney must roll up his or her sleeves and get to work—researching the applicable regulations and law 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 contracting laws 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.
Finally, your attorney will talk to you about 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 they constitute a violation of the False Claims Act, then coming forward could mean stopping a practice that is ripping off taxpayers. At the same time, there may 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 herself that the evidence demonstrates a False Claims Act violation and (3) explained your options and their consequences, then the next step is usually the filing of a complaint in federal court that is served on DOJ officials. Our next two series will cover in more detail both how the False Claims Act works and what happens after your complaint is filed.
To learn more about our Whistleblower & Qui Tam practice, click here. This is the fourth in our six-part series on the ins and outs of exposing fraud against the government.