Things a Whistleblower Needs to Keep in Mind
Serial whistleblower Adam B. Resnick has written the attached piece on Huffington Post about the do’s and don’ts of whistleblowing. He’s got some perspective, having been on a wild ride first as a convicted white collar criminal and then twice as a successful whistleblower. He writes often about the power of redemption, and it seems he has now turned his focus to using the False Claims Act to stop health care fraud and other forms of theft against the taxpayers.
As whistleblower attorneys who have been at this awhile now, we don’t find much to quibble with Resnick’s top 10 list, except that oddly enough he’s got 12 items on it! Otherwise, it’s a good primer on how to approach the process and keep your head about you.
As we say to clients and prospective clients all the time, this is not for everyone. The decision to become a whistleblower is a deeply personal one, and contrary to industry perceptions, it’s usually not all about the money. Usually it’s about respect, dignity, and a need to set the record straight. The financial incentives in the False Claims Act and other whistleblower statutes are at times the “tipping point” that causes an otherwise hesitant person to go forward. Without those incentives, many meritorious cases would never come to pass.
But back to the “top 10” list. If you’re considering becoming a whistleblower or know someone else who is, this is a pretty good primer. Here they are, according to someone who has twice been through the cycle:
- Shut up and get a good lawyer fast. If you’re in a company and suspect fraud, get some advice from somewhere outside the company. And if you file a False Claims Act case, the law doesn’t even allow a whistleblower to bring the case without a lawyer. Before you make mistakes (like saying something you shouldn’t, or taking something you shouldn’t), get some legal advice.
- Make sure you have a case. If it’s rumor and innuendo that is at the core of your suspicions, you won’t go far. Law enforcement expects whistleblowers to come armed with the “who, what, when, how, and why” of the facts–another reason you need to talk to a lawyer.
- Welcome hard questions and difficult truths. Most attorneys working in this space work on a contingency fee basis, which means their time is at risk. Expect their evaluation to take awhile. They have to be satisfied that the case has merit, down into the details. They don’t want to waste anyone’s time: yours, theirs, or the government’s.
- Get an honest lawyer who’s had some success in the whistleblower area. This is a highly specialized area of the law, and even a competent lawyer can be in over his or her head if not familiar with the nuances of the whistleblower laws. Ask what whistleblower cases they have taken all the way through trial or settlement. If they don’t have several they can cite to you, keep looking.
- Prepare for the long haul. These cases take a long time usually, long as in 4-10 years. Like the child in the backseat who asks “How much longer before we get there?” on the family trip, whistleblowers need to expect a long process–two years away from wherever you are now.
- Prepare to be outed. Although whistleblower cases are filed under seal if pursuant to the False Claims Act, or confidentially if pursuant to the IRS or SEC whistleblower programs, there is no guarantee of indefinite anonymity. Usually we are able to keep our clients’ names out of sight until the end of a successful case, but sometimes defendants figure it out anyway (by educated guessing or reading the tea leaves of what the government is asking for). So expect collateral consequences in your career and maybe even in your social life.
- Get another job. If you can’t keep your current job, find a new one, both for the income security but also because it will keep your mind on other things, which is critical. The most challenging clients for us are usually those whose entire life is wrapped up in this one case. This is too much pressure to put on yourself and on your legal team. In most whistleblower laws, the government is the real party in interest, which means their lawyers will have a substantial say in how well the case goes.
- Plan for success [and failure too]. We often advise clients to expect zero and be thrilled and surprised if the case comes in. Again: manage expectations. But once it becomes clear that there will be a financial reward, start planning before the money arrives. History is littered with examples of people who squander sudden windfalls. Don’t get on that list! Get some advice from people who have experience helping people manage this situation. Probably your attorney will have some recommendations.
- Don’t count your eggs before they hatch [and certainly don’t eat them]. Too obvious to require elaboration. There are many ways for a meritorious case to die, through no fault of you or your attorneys. You simply cannot assume the game is over until it’s over. Don’t make major financial decisions before the money comes in or even right afterwards. Put it somewhere safe, exhale, take a walk. Deal with it when life quiets down and after your friends (who’ve ignored you all this time) stop calling you.
- Find a friend. Court seals mean you can’t discuss the case with anyone except your lawyers (and maybe your spouse, but be careful!). Other whistleblowers are probably among the few people that could understand what you’re going through. You still can’t disclose the details of the case, but at least you can share your thoughts about what the process is doing to you.
- Be grateful. Anger is toxic. And whistleblower cases will give you a lot to be angry about: the underlying fraudulent conduct, the way your career has suddenly changed, the stresses in your personal life, the lack of control over the case, to name the leading contenders. Choose gratitude instead. Choose to see the glass half full: you have a team of lawyers working on your case without charging you an hourly fee. They care about you and want you to win just as much as you do. Thank them for their hard work and for focusing on your case when they have many other clients. You live in a country where whistleblowers are statutorily protected and financially rewarded. In how many countries is that true? Of course the case won’t be easy. But how great is this–to be in the hunt, on the side of the good guys, chasing some seriously bad actors? Take some satisfaction from the fact that, however this goes, you’re doing the right thing. And maybe there’s a book or movie to come of all this–or better yet, some change to the bad practices you exposed.
- Pay it forward. As Remnick points out, if you reach the finish line with vindication and financial remuneration, remember the people behind you, going through what you’ve just finished. Our friends at Taxpayers Against Fraud can help direct you to where help might be needed.
What these points make clear is that for whistleblowers, attitude and expectations are everything, and for the whistleblower attorney, managing those client expectations and attitudes are a very large part of the attorney-client relationship. If the whistleblower goes into the process with these guidelines in mind, with a certain que sera sera approach, the process goes infinitely better.
We might add one other personal favorite: keep a copy of Rudyard Kipling’s poem “If” in your wallet and read it once a month. It’s a fabulous reminder of how to roll with the punches that life, particularly a whistleblowing life, can serve up.