A Whistleblower’s Legal Journey, Part II: Do I Need an Attorney to Report Fraud to the Government?

On Behalf of | May 31, 2024 | Whistleblower Law

By Shaun Rosenthal and Danya Rangachar

This blog post is part of our Whistleblower series.

Is Hiring a Whistleblower Lawyer a Good Decision?

You have stumbled upon a fraudulent scheme at your company, and you are itching to do something about it. But going from recognizing wrongdoing, to informing the government, to an investigation into the company, to a successful enforcement action, and to get the company to change its ways…it might all feel overwhelming.

As you ponder this lengthy process, you should begin with a simple question: “do I need an attorney?” The choice to hire an attorney brings with it several benefits and has important implications for your case. Whistleblower attorneys know and understand well the programs designed to protect you in your claims, have established relationships with the Department of Justice (DOJ) and other agencies, and can skillfully guide you through all stages of your case.

Key Considerations When Hiring an Attorney for a Whistleblower Claim

We have detailed seven considerations on whether to hire an attorney below. Please note, we may expand on these points in future blog posts.

  1. Deciding Which Agency (or Agencies) to Inform

Unsurprisingly, different government agencies are responsible for investigating and prosecuting different forms of fraud. But they also work in concert with each other. Having an expert who knows which agencies to file with and delivers information to meet their needs can be the difference between a successful action and one that gets lost in the shuffle.

  1. Relationships with Government Agencies

Throughout numerous cases, whistleblower attorneys frequently cultivate professional relationships with government attorneys. Occasionally, attorneys may prime cases for the agency’s attention before the tip is filed, which can lead to a meeting with the agency shortly after the official filing.

  1. Awards

Whistleblower awards typically can range between 15-30% of what the Government recovers.[1] When the amount that the Government recovers is in the millions of dollars, each additional award percentage point is consequential.

Award percentages are generally decided after the enforcement action occurs. The whistleblower applies for an award, either through negotiations with the government or filing an official claim. Attorneys monitor public enforcement actions and complete reward claims in a timely fashion that, combined with the good rapport established with agencies, could help quicken the process of recovery (although, whistleblowers typically receive awards years after they file a claim).

  1. Understanding New Developments

Whistleblower attorneys keep up to date with regulatory protocols and agencies’ actions. For instance, although agencies such as the Federal Trade Commission lack formal whistleblower reward programs, whistleblowers may still be eligible for an award if they adhere to certain filing procedures.

  1. Anonymity of Whistleblowers

Some whistleblowers fear retaliation from their employer if they disclose their identity to the agency, but there are ways to preserve anonymity. For example, a whistleblower can file an anonymous tip with the Securities and Exchange Commission (SEC) and be entitled to a monetary award, but an attorney must file the tip on the whistleblower’s behalf.[2]

  1. An Attorney Is Occasionally Required to Pursue a Claim

A False Claims Act case (a case alleging fraud perpetrated on the government) begins with a complaint that is filed in court. Most courts who have considered the issue have held that a whistleblower is not entitled to litigate a False Claims Act matter unless they are represented by an attorney.[3]

  1. Additional Complementary Causes of Action

Whistleblowers may face retaliation for reporting fraudulent conduct to their employer. If so, a strategic plan must be discussed on the best path forward, including filing a claim in court, arbitration, pre-suit negotiation, and more. If a whistleblower retaliation case is pursued, there are demand letters and filings to draft, legal deadlines to track, and legal research to conduct.

*    *    *

The decision to proceed alone depends on the whistleblower. The above are simply a few considerations to aid you in this decision.

If you decide to report fraud to the government or pursue a whistleblower retaliation claim as legal recourse, consider filling out our online intake form to speak with a whistleblower attorney at our firm.

[1] See, e.g., 31 U.S.C. § 3730(d); 31 U.S.C. § 5323(a), (b).

[2] Office of the Whistleblower, Frequently Asked Questions, SEC (last visited: Apr. 16, 2024), https://www.sec.gov/whistleblower/frequently-asked-questions#faq-15

[3] U.S. ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 93 (2d Cir. 2008) (“we conclude that they are not entitled to proceed pro se. . . . Our holding is in accord with all of the circuits that have considered the issue.”).

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