GUIDELINES FOR SUCCESSFUL WHISTLEBLOWING …a few simple principles which all whistleblowers should follow.
(1) CONSULT A LAWYER: Start by calling a lawyer with expertise in Qui Tam actions. There is no charge for the short phone consultation with one of the lawyers at Rawls, Scheer, Clary & Mingo to determine if you may have a valid complaint. If we think there is some merit to the claim, we will set up a meeting to explore the issue with you face-to-face. We will not charge for this meeting either. If you choose to go forward and stop the fraud, we will help you create and implement a plan to maximize your chance of success and minimize your risk of personal or professional harm. It is critical that you begin by speaking with a lawyer first. Even if you want to try to stop the fraud from within the company, those efforts need to be carefully planned and documented in the event that you later take formal action under a whistleblower statute (like the False Claims Act (“FCA”)) and seek to share in the government’s recovery. Also, the company may try to punish you if this private campaign fails to correct the illegal conduct. If this happens, you need to be prepared to use the law’s anti-retaliation protections.
(2) DEVELOP A PLAN: From the first moment that you think you might want to blow the whistle on someone who is stealing from the government, you should create a plan with your lawyer. If you have not already done so, the first step will often be to work from within the company to eliminate the problem. Even before doing this, there are steps you must take to protect yourself should the effort backfire. If you decide to initiate a formal complaint outside the company, there are several steps which you and your lawyer must take before initiating action under False Claims Acts. The plan must have options built in so that you maintain the upper hand no matter what the wrong-doer does.
(3) MAINTAIN ABSOLUTE SILENCE: There are several reasons not to speak with anyone about your decision and your activities as a whistleblower. The most important is that public disclosure of the frauds prior to filing a whistleblower claim might disqualify you from any financial recovery. It also goes without saying that your professional life may become disrupted if news of you blowing the whistle makes it back to the wrongdoer. Though you may later make discreet contact with certain carefully selected witnesses, you should only do so in consultation your lawyer.
(4) STAY ON THE JOB (usually): Your ability to correct the wrong and be rewarded for your efforts depends largely on your value as a witness. By keeping your position within the company (or whatever circumstances brought you into possession of the information), you will maximize your ability to gather evidence and strengthen your case. Continue to be a model employee. Any blemishes on your employment record during the run up to filing a claim could weaken your position should the company try to retaliate against you for blowing the whistle.
(5) PROTECT THE PUBLIC: If the fraud is causing direct, irreparable harm to anyone, get a lawyer immediately and work with them to quickly put an end to the practice. An example of this might be a doctor who is performing a surgical procedure which falls dangerously short of the standard of care, but is billing Medicare as though he were providing the appropriate service. In most cases, your lawyer will still be able to preserve your claim even though the case could not be fully developed before reporting it to the government.
(6) BE REASONABLE: The best whistleblowers are those who are motivated by a desire to stop someone from stealing from the taxpayers. There is nothing wrong with wanting to be rewarded for the risks you take in doing this, but you will be less credible and ultimately less successful if you are solely motivated by cash.
(7) KEEP RECORDS: You will want to keep records of all of your efforts to correct the fraud. This will help to protect you from false allegations that you were acting to damage your employer’s business or trying to steal trade secrets for your personal gain. Witnesses such as your spouse or your lawyer who can attest that your actions were motivated by a desire to stop the thefts will help deflect a campaign to discredit you later on.
(8) COLLECT EVIDENCE (sometimes): You may need to gather evidence that will support your claim of fraud before drawing any attention to yourself. Be careful: taking documents or other evidence can be illegal or expose you to a lawsuit! Work only with a lawyer to ensure that you are getting all relevant information and that the manner in which you go about it is legal. Depending on controlling laws in your state, you may even be able to record conversations to help establish that people within the company knew that the practice was wrong.
(9) PREPARE FOR THE LONG HAUL: Though blowing the whistle can be both personally and financially rewarding, you should be prepared for a lengthy process. Some FCA (whistleblower) cases resolve in a year, but many go on for two or more years. There will be phases during which your personal investment in time will be substantial. There will also be stretches where your lawyer will be carrying the load and you will be less directly involved. Your lawyer will be able to give you more guidance on how complex your action may be and will give some rough estimates of how long it will take.
(10) THERE ARE NO GUARANTEES: Like any litigation, no one can guarantee that you will win the case or that you will receive any money. Since your lawyer will not get paid unless you win, their willingness to take the case may be your best indicator of the quality of your case. Choose experienced and aggressive whistleblower legal counsel and you will maximize your chances of success.