People who find the courage to report fraud against the government should be commended for their bravery in the face of the considerable risks they encounter. But even for those who understand these risks, there is much about the whistleblowing process that can prove challenging and emotionally taxing.
Blowing the whistle isn’t just a test of one’s integrity; it’s also a test of one’s fortitude. Qui tam investigations can take years to resolve, and during that time, the whistleblower’s actions will be bound by the requirements of the case as well the court ordered seal on the case. This test of fortitude is both physical and mental, and it’s imperative that any attorney helping a relator is prepared to step into the role of not just a lawyer, but also a pillar of emotional support.
The burden of telling the truth
Whistleblowers need to understand as early on as possible that qui tam cases are a long process. This is a major reason that, despite some perceptions to the contrary, being a whistleblower is not a way to “get rich quick.” There is nothing quick about it.
During the investigation, whistleblowers are bound by the seal provisions related to the False Claims Act. Neither friends nor family can be privy to any information regarding the case in progress, and of course, social media posts and other forms of expression on the topic are strictly prohibited.
This means that the whistleblower will likely spend several years with a large source of stress hanging overhead, and without the catharsis of sharing those troubles with a large support network. They can’t discuss their courageous act with family and friends and end up seeking solace with the only person who knows about the case, their lawyer.
Blowing the whistle isn’t just a test of one’s integrity; it’s also a test of one’s fortitude.
And when all is said and done, will the settlement or judgment provide enough compensation to make the years of wait or possible blackballing worth the trouble? Or will there be any compensation at all?
Laying out the road ahead
As one of the few people the whistleblower can speak to about the case, it is up to the attorney to prepare their client for the long road ahead so that the strain of the investigation doesn’t become unbearable. There are a few things a responsible attorney should therefore be to make sure the relator is prepared for the long haul.
An experienced whistleblower attorney should have the foresight necessary to lay out exactly what to expect from the investigation, including roughly how long the relator can expect to be involved before seeing a resolution. A frank discussion on the front end about the uphill climb to success works best.
At Morgan & Morgan, we often start by asking the prospective relator to write down the story of the fraud they witnessed as though it is a screenplay. Not only does this help the relator recount the fraud with greater breadth and objectivity; it also helps our team to draft an accurate, detailed and compelling complaint that could entice the government to intervene.
It is also the attorney’s job to make sure the relator doesn’t inadvertently compromise the investigation. Preparing them for their interview(s) with the government is crucial, because that component of the investigation can make relators nervous. We always make sure they have a good idea of what to expect before they tell the story of the fraud to government officials.
Attorneys particularly need to advise their clients about the risks of revealing case details to anyone unauthorized to receive that information, including friends, family, and co-workers. Beyond the seal, a major reason that confidentiality is paramount is the first-to-file rule, which stipulates that reward eligibility is extended only to the individual that first files their case.
Though it may seem obvious that the whistleblower has to keep the investigation quiet, never assume that they know what confidentiality entails in this context. It is very difficult for anyone to keep such a weighty secret. It can be tempting for relators to share with a trusted coworker that they may file a complaint, only to have that coworker turn around and report the fraud to the government first. Clients often think anonymous posts on message boards are ok, when they most definitely are not.
Qui tam attorneys must also be forthright about the realities of these cases. No client wants to endure years of waiting only to find out that the financial reward they receive is far less than what they anticipated, or that the complaint they felt certain would lead to a successful government intervention has been declined.
While it can be beneficial to make rough estimates based on the specific details of the case, guaranteeing any specific reward amount or outcome, though it may temporarily appease the whistleblower, is unwise in the long haul. We like to share the statistical outcomes of these with our clients so they understand at the start that success is the exception rather than the rule.
Compassion and transparency in equal measures
To go above and beyond, qui tam attorneys should be prepared to actively guide relators through the emotional demands of the process. Relators can experience understandable stress, anxiety, and paranoia as a result of having to wait for a resolution while maintaining confidentiality.
The fraud they witnessed could easily have broken their trust in their entire industry, so it may be difficult for them to stay motivated. Their decision to blow the whistle affects not only themselves, but their families too, which can cause relators additional stress and sometimes guilt. In cases where the whistleblower remains employed with the Defendant it can prove especially stressful.
It is therefore common for relators to reach out to their legal team on a regular basis looking for information, answers, and reassurance. Attorneys should be proactive with the government throughout the entire process, so that they consistently have the most up-to-date information
Having empathy for the unique challenges the relator faces is essential in all of your interactions with them. Even as you set appropriate expectations about the potential challenges of their case, it’s important that you anticipate and respond to their concerns with compassion.
Even when there are no specific updates, simply assuring the whistleblower that they made and are making a brave and worthwhile choice can be a compelling form of support. Sometimes people need, above all else, to know that they did the right thing, no matter how difficult that choice was to make.
–by Attorney James D. Young