How to Hire an Attorney for Whistleblower and Qui Tam Cases
1. Confirm deep qui tam and whistleblower‑specific experience and government‑side outcomes
Ask whether the attorney or firm routinely handles False Claims Act (FCA) matters and other whistleblower statutes (SEC, CFTC, IRS, OSHA, whistleblower claims under state false‑claims laws, or the Dodd‑Frank and Sarbanes‑Oxley whistleblower programs). Request concrete examples of past qui tam filings and outcomes, relator recoveries, successful interventions by the Department of Justice or state attorneys general, major settlements, and cases where the government declined but the relator obtained a favorable result. Verify courtroom and appellate experience in federal courts and with DOJ civil‑fraud units, plus familiarity with government investigative tools (civil investigative demands, grand‑jury interfaces where disclosure issues arise, tolling arrangements, and parallel criminal exposure). Attorneys experienced in this niche understand seal/ unsealing procedures, the high bar to survive a motion to dismiss, and how to structure complaints to plead falsity, materiality, and scienter without prematurely burning sources.
2. Require rigorous intake, conflict checks, and a preservation/privilege strategy with investigative resources
Whistleblower matters are high‑stakes and document‑heavy, insist on a documented intake and conflict‑screening process (to avoid client conflicts with employers, co‑defendants, or government counsel) and a detailed preservation plan the attorney will implement immediately: litigation‑hold notices, forensic imaging of relevant devices, privileged‑communication protocols, and careful source management to protect anonymity where necessary. Confirm the firm has investigators and forensic capabilities (data forensics, financial‑record tracing, billing‑audit experts, and forensic accountants) and can coordinate with knowledgeable experts (healthcare billing specialists, procurement/contracting auditors, or compliance‑program reviewers) to build the required proof of false claims and damages. Ask how they handle privilege issues, when to use independent counsel, how to structure communications with company insiders, and strategies to preserve work‑product protection while preparing a robust qui tam complaint.
3. Get a clear engagement with contingency/fee terms, government‑interaction plan, and post‑recovery logistics**
Obtain a written engagement that spells out fee arrangements (typical contingency or percentage of recovery for relators, fee‑shifting possibilities if statutory, and how costs and expert fees are advanced and repaid), the firm’s approach to confidentiality and seal motions, and explicit steps for government interaction, timing for filing under seal, management of DOJ or state‑AG interviews, and negotiation strategy if the government chooses to intervene or declines. Require a roadmap for litigation phases (initial sealed filing, government investigation, potential intervention, discovery, summary‑judgment defenses, and trial) and decision checkpoints (when to seek settlement vs. proceed to trial). Finally, insist on post‑recovery planning: how recovered funds will be distributed, handling of qui tam relator awards and tax implications, coordination with victims or compliance remediation, and steps to protect the relator from retaliation (OSHA or other retaliation remedies), so you fully understand financial, personal‑security, and procedural consequences of pursuing a whistleblower action.
