Information for Lawyers
This guide addresses the unique procedural and strategic considerations that qui tam attorneys and false claims act lawyers encounter. Whether you are an experienced false claims act attorney or expanding into FCA practice, understanding these nuances is essential.
What This Page Covers
This page provides practical guidance for attorneys handling qui tam cases. You will learn about disclosure statement preparation, DOJ coordination, multi-jurisdictional practice, ethical obligations, and common procedural pitfalls that trap inexperienced false claims act lawyers.
We assume familiarity with basic civil litigation. The focus is on FCA-specific requirements that distinguish qui tam practice from other federal civil work.
Procedural Pitfalls in FCA Practice
False claims act attorneys encounter procedural requirements that differ significantly from standard civil litigation. A qui tam attorney must navigate these carefully to avoid dismissal or reduced awards.
Seal Violations
The seal requirement is both procedural and substantive. False claims act lawyers must ensure their clients understand that disclosing the lawsuit—even to family members—can constitute a seal violation. Courts have dismissed cases and denied relator shares for seal breaches. A qui tam attorney should document seal instructions and obtain written acknowledgment from clients.
First-to-File Bar
The first-to-file bar prevents later suits based on the same fraud allegations. False claims act attorneys must research existing sealed cases through careful inquiry with DOJ Civil Division and relevant U.S. Attorney offices. A false claims act attorney who files second may see years of work result in dismissal.
Public Disclosure Bar
The public disclosure bar requires analysis of prior disclosures in government hearings, audits, reports, investigations, and news media. A qui tam attorney must determine whether their client qualifies as an original source if relevant disclosures exist. False claims act lawyers sometimes file protective suits while researching disclosure issues.
Pleading Standards
Rule 9(b) requires particularity in pleading fraud. A false claims act attorney must allege specific false claims with dates, amounts, and the manner in which they were false. Generic allegations fail. False claims act lawyers should identify representative claims with specificity while preserving arguments about broader patterns.
Preparing Effective Disclosure Statements
The disclosure statement significantly influences government intervention decisions. A qui tam attorney's disclosure should be more than a cover letter—it should be a persuasive document that makes the government's job easier.
Factual Narrative
Begin with a clear, chronological narrative that explains how the fraud scheme operates. False claims act attorneys should write for readers unfamiliar with the industry. A false claims act attorney explains technical concepts without assuming knowledge. Include organizational charts, process flows, and other visual aids that clarify complex schemes.
Evidence Summary
Catalog available evidence with explanations of what each document proves. A qui tam attorney should organize exhibits logically and provide a detailed index. Note the source of each document and any limitations on use. False claims act lawyers often create evidence binders with tabs corresponding to disclosure sections.
Damages Calculation
Provide a methodology for calculating damages, even if precise figures require discovery. False claims act attorneys should explain how to identify false claims in the defendant's billing systems and estimate the universe of affected claims. Government investigators appreciate spreadsheets and calculation models from the qui tam attorney.
Witness Identification
Identify potential witnesses and summarize expected testimony. A false claims act attorney should note which witnesses are friendly, neutral, or adverse. Include contact information where available. False claims act lawyers sometimes prepare witness profiles with background information relevant to credibility.
Working with the Department of Justice
Effective DOJ relationships often determine case outcomes. A qui tam attorney must balance advocacy for their client with recognition that the government is the real party in interest during intervention.
Initial Outreach
After filing, a false claims act attorney should promptly contact the assigned DOJ attorney and relevant agency counsel. Offer to meet, provide additional materials, and assist with investigation. False claims act lawyers who are responsive and helpful increase intervention likelihood. Proactive communication distinguishes experienced practitioners.
Investigative Support
A qui tam attorney should be prepared to assist with subpoena drafting, witness preparation, and document analysis. Government attorneys have large caseloads; a false claims act attorney who provides analytical support adds value. Some false claims act lawyers prepare detailed memoranda on industry practices and regulatory frameworks.
Managing Expectations
Government decisions take time. A false claims act attorney should prepare clients for extended seal periods and limited communication. False claims act lawyers should avoid pressuring DOJ for premature decisions. Understanding government resource constraints helps manage client expectations about investigation pace.
Settlement Participation
When the government intervenes and pursues settlement, a qui tam attorney should advocate for their client's interests without obstructing resolution. False claims act attorneys participate in settlement discussions regarding relator share but generally cannot veto government settlement decisions. Understanding this dynamic helps manage client expectations.
Multi-Jurisdictional Considerations
Many FCA cases involve conduct across multiple states or implicate both federal and state false claims acts. A false claims act attorney must understand these complexities.
State False Claims Acts
Many states have enacted their own false claims acts, particularly for Medicaid fraud. A qui tam attorney should evaluate whether parallel state claims are appropriate. False claims act lawyers often file federal and state claims simultaneously, though coordination requirements vary. State claims can significantly increase total recovery and relator share.
Venue Selection
The federal FCA allows filing in any district where the defendant can be found, resides, or transacts business. A false claims act attorney should consider judicial experience with FCA cases, applicable circuit precedent, and coordination with state claims when selecting venue. Strategic venue selection can affect outcomes.
Coordinating Parallel Proceedings
When federal and state claims proceed together, a qui tam attorney must coordinate discovery, avoid inconsistent positions, and manage multiple government relationships. False claims act lawyers sometimes establish joint prosecution agreements or coordinated investigation protocols.
Ethical Considerations
FCA practice presents unique ethical issues that false claims act attorneys must navigate carefully. A fraud defense attorney on the defendant side faces different but equally significant obligations.
Ex Parte Communications
During the seal period, a false claims act attorney communicates with government counsel without the defendant's knowledge. While this is sanctioned by statute, a qui tam attorney must be careful about communications with represented parties' employees. A fraud defense attorney should advise clients about potential witness contacts.
Fee-Sharing Arrangements
FCA cases often involve co-counsel arrangements between referring attorneys and qui tam specialists. False claims act lawyers must ensure fee-sharing complies with applicable rules, typically requiring client consent and proportional division based on work performed or responsibility assumed.
Multiple Relator Representation
A false claims act attorney may be approached by multiple potential relators with information about the same fraud. Conflict analysis is essential. False claims act lawyers should establish clear engagement terms and be prepared to decline subsequent representations that create conflicts.
Evidence Acquisition
A qui tam attorney must advise clients about proper evidence acquisition. Employees cannot steal proprietary information or violate confidentiality obligations. False claims act attorneys should document that evidence was lawfully obtained and counsel clients against improper collection methods.
Frequently Asked Questions for Practitioners
What should a disclosure statement include?
A disclosure statement should include a detailed factual narrative explaining the fraud scheme, identification of specific false claims with dates and amounts where possible, an evidence summary cataloging available documentation, witness identification with contact information and expected testimony, a damages calculation methodology, and legal analysis applying FCA elements to the facts. The goal is to make the government's investigation easier and more likely to succeed.
How do qui tam attorneys coordinate with the DOJ?
Effective coordination involves promptly contacting assigned DOJ attorneys after filing, providing additional evidence and analysis as requested, preparing the relator for investigative interviews, assisting with subpoena drafting and document review, and participating appropriately in settlement discussions. False claims act lawyers should be responsive and helpful without being obstructive.
What ethical considerations apply to FCA practice?
Key ethical considerations include maintaining seal confidentiality, navigating ex parte communication restrictions during investigation, structuring compliant fee-sharing arrangements with co-counsel, avoiding conflicts when approached by multiple relators, and ensuring lawful evidence acquisition. A false claims act attorney should be familiar with both federal and state ethics rules.
How do I evaluate whether to take a qui tam case?
Case evaluation involves assessing the quality and accessibility of evidence, the potential damages recovery, the likelihood of government intervention, the relator's credibility and availability for extended litigation, statute of limitations issues, first-to-file and public disclosure bar concerns, and the resources required for the case. A qui tam attorney should conduct thorough due diligence before filing.
Join Our Attorney Network
Qui Tam Online connects experienced false claims act attorneys for case referrals and co-counsel arrangements. Our network includes practitioners with deep experience in healthcare fraud, procurement fraud, and related areas.
Network membership involves shared case development, appropriate fee arrangements consistent with ethics rules, and collaborative representation that serves client interests. We welcome inquiries from qualified false claims act lawyers interested in expanding their practice or finding co-counsel for complex matters.