In part one of this story, Vince McKnight and Ross Brooks, partners in the whistleblower practice at Sanford Heisler, discussed how to determine if an employee is a good candidate for a whistleblower case. In this installment, these attorneys explain how they interface with government regulators, what advice they have for potential whistleblowers and their thoughts on internal reporting programs.
When proceeding with a whistleblower case, attorneys will inevitably encounter federal regulators. In a False Claims Act (FCA) case, the participants can vary slightly, attorneys can expect to meet with US attorneys from the relevant office and Main Justice, as well as representatives from administrative agencies, such as the Center for Medicare and Medicaid when the complaint relates to a healthcare or pharamceuticals.
The key piece of advice that McKnight has for a potential whistleblower is to consult a lawyer early in the process. “There are many pitfalls and legal requirements or potential problems that a whistleblower could encounter,” he explains. “The earlier the whistleblower consults with an experienced lawyer, the better off they’ll be. There are many different levels of a case, and a whistleblower may experience retaliation early on, they may have questions about internal reporting or documents, and the best advice is to talk to someone with experience fast, to start discussing the process and what it entails.”
A second, and equally important piece of advice may go against a whistleblower’s instincts in some cases, but is relatively straight forward. “Whistleblowers should tell lawyers everything. They should not be fearful,” advises Brooks. “We’ll protect them, as will the Department of Justice. Any witness needs to advise counsel of any issue they’ve encountered, any trouble they’ve gotten into, particularly in this context. Whistleblowers are often concerned about being viewed as participating in fraud.” Brooks says his clients should not be concerned about how they’re perceived, because the level of culpability needs to be high in order for the government to be concerned.