Representing Whistleblowers

by Jason M. Zuckerman

Eleven years ago, I was contemplating a response to a law school application essay about what inspired me to become a lawyer. I wrote my essay about Atticus Finch, the attorney in Harper Lee's To Kill a Mockingbird who stands up for justice by defending an African American falsely accused of raping a Caucasian woman in the Depression-era South. Going into law school, I hoped to become a civil rights lawyer.

While I was fortunate to do a lot of volunteer legal work in law school for prison inmates, I did not go into public interest law immediately after law school. The opportunity to get good training and pay off law school loans led me to practice at a big firm in D.C. While I had much better experience at a big firm than I would have ever expected, I realized five years out of law school that I wanted my practice to focus more on serving the public interest. About a year and a half ago, I started my own practice focused on representing whistleblowers in retaliation claims and in qui tam actions. As I read about recent surveys showing record associate dissatisfaction, despite record salaries, I feel fortunate to have found a practice that is very satisfying and rewarding. The following are some of the reasons to consider practicing whistleblower law:

Exposing Fraud

Representing whistleblowers is about more than just pursuing a client's pecuniary interest. Litigating whistleblower cases serves a public interest by exposing and in some cases, rectifying fraud and threats to public health and safety. In just the past year, I represented individuals who blew the whistle on lax security at a nuclear power plant, unsafe work conditions, deficient aircraft maintenance, predatory lending, billing fraud in a government contract, Medicare fraud, accounting fraud, and securities fraud. many of my clients' disclosures resulted in government investigations or in some instances, caused their employers to rectify unlawful conduct without the need for government intervention. It is invigorating to perform work that benefits more than just my clients.

Most of the whistleblowers cases I have worked on are defended by large firms, with several attorneys assigned to the case. Despite their resources, I endeavor to stay ahead of the game and to litigate each case as though my client is represented by a big firm. The hours can be long, but I am inspired to litigate aggressively because I have tremendous respect for the courage and integrity of my whistleblower clients.

While their colleagues looked the other way or remained silent, my clients risked their careers to stay faithful to their values and their professional responsibilities, and I owe it to them to ensure that they are made whole. Somewhat naively, my clients thought they would get a pat on the back for reporting fraud or health and safety violations. Instead, they suffered both express and subtle forms of retaliation, including diminishment of job responsibilities, demotions, harassment, and in some instances, termination. One of my clients suffered the type of retaliation that I thought was a thing of the past. Her car windows were smashed, she received voice mails threatening her life, and her husband received calls falsely alleging that she was having an affair at work. Worst of all, the company suspended her and deemed her unfit to work because she was feeling anxious (as would any normal person under these circumstances), and never took disciplinary action against the employees who retaliated against her. Representing clients who stand up for what is right, often at personal cost, is a privilege.

Challenging Issues

One of the reasons I enjoy my work so much is that the cases often entail complex issues and difficult choices. In many of the cases I am litigating, there is a government investigation being conducted while the parties are litigating the civil retaliation claim.  The interplay between these proceedings raises a host of interesting issues, including the waiver of privilege when a party submits documents to a government agency, the use of confidential informants, and the admissibility of the findings of a government investigation to prove the merit of the issues that the whistleblower raised. Lately, I have represented several in-house attorneys who suffered retaliation when they raised concerns internally about actual or potential violations of SEC rules. representing attorneys raises complex issues of confidentiality and attorney-client privilege.

Whistleblower cases, however, also have some downsides. the clients require a lot of handholding to deal with the psychological trauma they have suffered, and to their credit, they are fixated on ensuring that the wrongdoing they exposed is adequately addressed and resolved. It is difficult to explain to whistleblowers why government agencies take so long to investigate and prosecute the wrongdoing they exposed.

Whistleblower cases tend to drag on for years, and some companies defend these claims by making false allegations against the whistleblower. In a recent case, my client had a well-documented record of stellar performance, consistently receiving excellent performance evaluations and never having been subject to any disciplinary action. The company, however, tried to portray her as the worst employee in the company's history. Fortunately, however, the company kept offering shifting and contradictory explanations for terminating my client, thereby providing my client with strong evidence of pretext.

In addition to making false allegations about whistleblowers, some companies are inclined to defend whistleblowers claims aggressively, sometimes resorting to intimidation tactics to try to convince a whistleblower to back down. Just recently, I had a case in which the employer threatened to blacklist my client if he would not dismiss his claim, and another case in which the employer filed frivolous counterclaims for breach of fiduciary duty and breach of the duty of loyalty. These tactics, however, almost always backfire and ultimately advance the whistleblower's position. In a wrongful discharge case, electronic discovery enabled me to prove that documents purportedly evidencing my client's poor performance were drafted after her termination and backdated. Once I had clear proof that the documents were backdated, the company was reasonable about the value of the case. In a Sarbanes-Oxley retaliation case, the employer's counsel alleged in a motion that I had engaged in unethical conduct by obtaining certain documents. Unbeknownst to this lawyer, I had obtained the documents from a public entity in response to my request under the freedom of Information Act. The attorney's haste in attacking my credibility therefore undermined his own credibility before the judge. At a time when too many attorneys are reportedly dissatisfied with their work, I feel fortunate to have found a practice niche that I enjoy and that I hope will advance the public interest.