Choosing a Whistleblower Attorney
If you are considering becoming a whistleblower, one of the best things you can do for yourself is to find the right attorney. A good whistleblower lawyer will be a valuable ally in your fight for vindication and can make the difference between winning and losing your case.
So, how do you choose the right whistleblower attorney? Here are five essential things you should look for when choosing a lawyer:
Experience in Whistleblower Cases
First and foremost you should find somebody that has real experience in successfully pursuing these types of cases. There are a lot of lawyers that say they represent whistleblowers, but if you were to ask them specifics about their experience, you might find that they haven’t actually been directly involved in a whistleblower case.
There are many different types of whistleblower cases: a tax fraud whistleblower case is a lot different from a pharmaceutical sales and marketing Qui Tam case. It’s important for prospective clients to question the lawyers that they’re consulting about their experience and their ability to handle particular types of cases. Experience in one type does not translate into success in another.
The key in a whistleblower case is to convince the government (the Justice department if it’s a Qui Tam case, the IRS if it’s a tax case, the SEC if it’s a securities case) that the case is worthy of investigation in terms of their time and resources. There’s more to that than simply drafting a good complaint. Where you file, for example, can be more important to your ultimate success than what you file. This is why you need an experienced lawyer.
The Resources to Pursue a Whistleblower Case
These are undertaken on a contingency basis, so the law firm has to have the resources to be able to underwrite the costs of pursuing the case over the long haul. Depending on the nature of the case, this may require the retention of expert witnesses, so these cases can be very, very expensive. The lawyer you choose has to be prepared to make the investment to maximize the chance of success.
A Willingness to Pursue, With or Without the Government
A Qui Tam case under the False Claims Act is technically a civil case, but you’re bringing your claim on behalf of the government. Once the case is filed, it is kept under seal while the government investigates your allegations. When the government gets done with its investigation, it makes a decision whether to pursue the case or not.
If the government doesn’t pursue the case, then you have the right to pursue it yourself. Many whistleblower lawyers have almost a standing policy where, if the government does not intervene in the case, they won’t take it. They’ll even say in their client agreements that if the government doesn’t intervene, they’re going to withdraw from the case and you’ll have to find a new lawyer if you want to continue to go it alone.
Clients need to understand the process, because it can be very complex. Ask your prospective lawyer if they are prepared to litigate the case even if the government does not intervene.
Expert Knowledge of What Whistleblower Cases the Government Will Pursue
This is another area where experience makes all the difference. A good whistleblower attorney will have a clear understanding of what cases are going to interest the government. Aside from strict legal theory and case law, there are the intangibles involved in knowing what cases the government investigators and attorneys are going to take notice of at the outset. The government investigators and attorneys are only human, and they only have so much time to devote to these cases. They have to pick and choose which cases are going to get prosecuted and which have to be declined.
You always have the option of pursuing the case yourself if the government declines to intervene, but it is better to have the government do the work. An experienced attorney can counsel you on whether your case has a good chance of interesting the government, what steps you need to take to improve the chances of government intervention, and whether it is even worth the time, effort, and heartache of filing a whistleblower case.
Guidance on the Risks
Being a whistleblower is not for the faint of heart. It is a long and complex process that puts your livelihood, your reputation, your professional relationships, and even your personal relationships at risk. A good whistleblower lawyer can counsel you on all the different considerations that should go into the decision to become a whistleblower. Not all the considerations are legal ones.
A good attorney will ensure there are no misunderstandings about the process and will help you avoid potential pitfalls. For example, the False Claims Act has a section that deals specifically with retaliation, but you have to take care in how you position the claim to protect someone if, in fact, there is retaliation.
You want an attorney that can help you make an informed decision about becoming a whistleblower and maximizes your chances for winning your case.
If you use these five criteria to choose your whistleblower attorney, you will save yourself a world of trouble and increase your chance of winning your case:
- Experience in whistleblower cases
- Resources to sustain a long process
- Willingness to go it alone, if needed
- Know-how on getting the government to take over the case
- An understanding of the personal, professional, and legal risks of being a whistleblower.
Filing a whistleblower lawsuit is not an easy decision, and you want a legal partner who has been through the process and can support you through thick and thin.
Please call us if you have any questions about your own situation. You are not alone in this.