Advice from a Former Whistleblower

July 16, 2014
12:30 pm

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Advice from a Former Whistleblower

03/26/2014 // Justice News Flash: Featured Column (Press Release) // Kathleen Scanlan // (press release)

Adam Resnick recently published a piece setting out 10 things every whistleblower needs to know. Since Resnick’s piece is worth reading, it’s re-printed in its entirety here.

1. Shut up and get a good Whistleblower

lawyer, fast. You can complain about the fraud internally, but we all know how that usually ends. Once you identify a fraud, immediately contact a lawyer to ask for guidance, including what documents and corroborating evidence that you can take with you. Do NOT ever take originals. You don’t want the real crooks to flex their muscle and convince authorities that your “theft” should negate their fraud. It’s also possible that as soon as you start thinking about the impropriety, people at the company know who you are. That means you could be escorted out of the building before you can grab your kids’ pictures off your desk.

2. Make sure you have a case. FCA, IRS and SEC cases are not based on rumor or hunches, but evidence. You have to prove fraud and the government is not paying awards for generalized tips, but for specific evidence. You are supposed to be doing the government’s work for it. Don’t assume that you will be able to prove your case by having your lawyer or the government subpoena documents from the defendant after the case is filed. Think about what you personally know right now. As the great philosopher Tommy Boy said, “I can get a good look at a T-bone by sticking my head up a bull’s ass, but I’d rather take a butcher’s word for it.” The government wants the butcher, but come prepared with meat in hand.

3. Welcome hard questions and difficult truths. Don’t blame a lawyer for questioning your case – convince them it has the necessary merit. If you have found a good lawyer and you can’t convince them, then maybe you don’t have a case. My first (successful) case involved a novel theory – fraud that was obvious to me but not something that the Department of Justice had pursued before. My attorneys dug deep into the facts of my case and did a lot of legal research before they felt comfortable it was viable. Initial skepticism can save years of wasted time if the facts and/or law don’t work in your favor.

4. Get an honest lawyer who’s had some success in the whistleblower arena. Before divulging any specific details to a prospective lawyer, make sure they run a conflict’s check first to ensure they don’t have an ulterior agenda. For example, they could already represent a client that has a similar case and could be trying to suck information out of you. If a lawyer purports to have recovered billions of dollars in whistleblower claims, ask them how much their relators’ shares have been. There are some great lawyers who represent whistleblowers, including some who are less well known but nonetheless very capable. Asking other whistleblowers who they recommend and then talking to the lawyers is always a good way to approach a potential attorney-client relationship. The key, however, is to find an attorney with good judgment quickly.

Also, don’t pay someone an hourly fee to represent you on a whistleblower case (unless they are only representing you in an employment case). The real whistleblower lawyers all work on a contingency fee basis — meaning you pay nothing unless you win. The only lawyers I ever heard of who charge an hourly rate are ones who don’t know what they are doing — or ones who think you don’t have a case but are happy to take your money.

5. Prepare for the long haul. Most defendants don’t settle easily, and they never fear press as much as you think they will. Many lawyers have told me that every whistleblower they talk to says “the company will settle this quickly to avoid the press.” They never do.

6. Be prepared to be “outed.” If any lawyer tells you that your anonymity is guaranteed, seek another counsel. Whistleblower cases are filed under seal, and there are ways to potentially mitigate the risk of being revealed as a whistleblower, like filing a case under the name of an LLC, but anonymity can never be assured. Once a district court clerk inadvertently lifted a seal in my case for ten hours and my co-relator and I were exposed. It shouldn’t have happened but it did. And similar things have happened to others. Once you file your case, you should assume you will get outted eventually. Stock up on Imodium.

7. Get another job. Cases, like anything in life, have ebbs and flows. Working while your case is on-going keeps you sane, stable, and protects your family’s welfare in the event your case crumbles. Cases can take years from start to finish. Sitting around waiting for a recovery can be counter-productive. And, sadly, if and when you are revealed as a whistleblower, it will make finding a new job harder, not easier.

8. Plan for success. At the point at which you sense your case might be successful (for instance, the government intervenes), contact an estate planner so you don’t end up like so many lottery winners. Of course, a whistleblower is the antithesis of a lottery winner. You must possess a tremendous work ethic, courage, and perseverance. Do your due diligence and find a great estate attorney and money manager so that success will last.

7. Don’t count your eggs before they hatch. The big print giveth, and the little print taketh away. Never assume your case will settle for the maximum amount. In a Medicaid case, assume you will not get any award for 25 percent of the case and that some portion of penalties will be allocated to criminal sanctions for which you will not get a share. Assume you are not the only relator — there could be other whistleblowers who you will come to learn are going to split the award. And don’t think the gross penalty is your share. You have to pay lawyers’ fees and taxes still.

8. Find a friend. There is nobody better to meet who will understand your circumstance more than another whistleblower. They will have empathy and be able to give you guidance. I have had several contact me before they even decided to approach an attorney. It’s a lonely line of work because the court mandated seal requires that the only people you can discuss your case with are your lawyers.

9. Be grateful. This will not be easy, because at the end of the day, the liars, cheats and thieves who stole from the American people and got you fired will probably keep their jobs, receive bonuses, and may even get promoted. Anger and resentment are termites for the soul, however. Gratitude is the cure, and it is something you need to cultivate. If you cannot find gratitude, find help.

10. Pay it forward. There are other whistleblowers behind you, and they need the law that helped you in your hour of need. That law is under constant attack by powerful and well-funded pack lobbyists and lawyers. Support groups like Taxpayers Against Fraud that seek to ensure that whistleblowers are both protected and compensated.