The nature of qui tam litigation presents unique ethical and legal challenges at each stage of litigation for the lawyers representing both relators and defendants. This article addresses some of the issues that arise in the early stages of qui tam litigation. A qui tam action is initiated when the relator serves a copy of the complaint under seal and written disclosure of all material evidence and information to the Department of Justice. Even before the complaint is filed, a lawyer that is approached by a putative relator must be guided by a multitude of ethical considerations prior to making a decision to take on the representation. The vast majority of False Claims Act (“FCA”) cases are initiated by relators who approach a lawyer with allegations that someone or some entity – often their current or former employer – has defrauded the government. The risk that such a putative relator may be motivated by animosity, a financial windfall and/or a desire to seek reprisal against their former employer means that a lawyer must investigate thoroughly whether there is a sound basis for bringing the suit. A lawyer who fails to take heed of the multiple ethical obligations involved in avoiding filing a frivolous suit risks professional discipline, personal liability and/or court imposed sanctions.
