Cliff Robertson Sentinel AwardYou may feel helpless and alone, isolated in a stifling work environment where your supervisors use power and deceit to punish you and cover up the truth—while even your most trusted colleagues are forced to rally to management’s side for fear of retaliation. You may be shunned; labeled a traitor, troublemaker, or liar; and left to fend for yourself. The board of directors, the courts, Congress, and the media may all seem like an intimidating and uncaring, if not altogether hostile, audience to your claims. But take heart: there are sources of strategic, moral, and material support in numerous communities that can make the experience both less harrowing and more effective.
Advocacy partners can be a vital resource for whistleblowers. These groups can provide advice and support as well as resources and connections, can share their own research and knowledge on issues of concern to you, and can even serve as your main channel for blowing the whistle. Consider calling on them, particularly if the idea of blowing the whistle to a hotline, a member of Congress, or the press seems too intimidating. They are an essential link in the chain of accountability that can turn your whistleblowing information into power. Most of the success stories in this handbook would not have occurred without the solidarity and the support of advocacy partners.
Advocacy partners can also be key to an anonymous whistleblower strategy. If you plan well and implement strict confidentiality procedures up front, they can help you communicate evidence to the public while hiding you as its original source. For example, whistleblowers can speak through advocacy partners by ghost-drafting comments, appeals, letters, and Freedom of Information Act requests. Public Employees for Environmental Responsibility and the Union of Concerned Scientists have been particularly adept at working with whistleblowers to develop the right questions for employee surveys that generate credibility through anonymous confirmation for an individual’s dissent.
Whistleblowers can define the issues, and then advocacy partners may produce and release issue reports, or “white papers,” based on whistleblowers’ findings that provide the public and the media with a lay translation of technical terms and a context for the current details of corporate malfeasance. Bolstered with well-documented facts, citations to publicly available reference materials, and photocopies of internal memos not readily accessible, these reports are an effective vehicle for disclosing what conscientious employees know, without exposing their identities. Similarly, advocacy partners can harness the media by issuing news releases or trying to place supportive articles in local or national newspapers.
There are relatively few experienced organizations that specialize in working directly with corporate whistleblowers using such strategies. In addition to the Government Accountability Project, which has a more than 30-year track record of whistleblower advocacy, other sources for help are listed in Tool C in the Whistleblower Toolkit. These include whistleblower self-help organizations that are multiplying at a heady pace, often organized around particular issues.
Beyond these groups there is a range of advocacy organizations that may not work extensively with whistleblowers but can help nonetheless. These range from issue-oriented public interest groups to labor unions and professional associations. They vary in their approach to whistleblower concerns and in the type and the degree of assistance they offer—generally depending on the extent of your shared agenda. A public interest environmental group may choose to help you fight your battle because you have information critical to exposing industry contamination. A consumer organization may view your information as important in warning the public about unsafe products. A union may work with you because you are a dues-paying member or because you have information about a corporation that can be used in collective bargaining or an organizing campaign. A professional association or society is likely to be concerned about issues affecting the profession’s credibility.
These nongovernmental organizations are the keystone of your solidarity networks. They know who the significant actors are in the public and political arenas and can be matchmakers with the partners you need to make a difference, from responsible government officials to knowledgeable journalists. They often specialize in monitoring and combating precisely the type of misconduct you are exposing. In that context they may know of analogous corporate misconduct and may recognize your experience as part of a larger pattern. They can channel, cloak, or amplify dissent through solidarity tactics, such as the surveying discussed earlier. In short, NGOs are the natural leaders to follow up on the work you begin by disclosing a corporate abuse of power.
This section describes the most common types of advocacy partners.
Public interest groups cover the spectrum of issues. Think through the types of groups that might be concerned about the wrongdoing you have witnessed. Once you identify them, check that their position on the issue is in line with yours. If it is, you may be able to establish a mutually beneficial relationship in which your information helps their cause and vice versa. Do not be discouraged if you cannot find help right away. Even if a particular group cannot help you, be sure to ask for referrals to other organizations as well as subject matter experts and pro bono lawyers who specialize in your issue.
Some public interest organizations offer awards for courageous individuals who have contributed to their cause. Being nominated for these awards can be helpful because it increases your visibility and credibility to be publicly honored for your whistleblowing. Sometimes the recognition includes a modest cash award, and almost all awards generate at least some publicity that can put pressure on your bosses not to retaliate. Here are a few of the awards that have honored whistleblowers:
Cliff Robertson Sentinel Award
David P. Rall Award for Advocacy in Public Health
Gold Whistle Award
Goldman Environmental Prize
Index Whistleblower Award
Joe A. Callaway Award for Civic Courage
Project on Government Oversight’s Beyond the Headlines Award
Ridenhour Truth-Telling Prize
Right Livelihood Award
Special Counsel’s Public Servant Award (for federal whistleblowers)
Transparency International’s Integrity Awards
Labor unions, employee federations, and professional associations are the primary employee organizations. All have employee-based memberships and work to further their members’ interests. Although managers can punish individuals for simply bringing up problems, both retaliation and smears are more difficult to carry out when a group of employees speaks with one voice—and the bigger the group, the stronger the voice. Unlike public interest groups, employee organizations are generally not wedded to furthering a particular issue but rather to serving their members. Therefore it is likely that you would need to be a member before securing assistance from such organizations.
Unions can be a natural ally for whistleblowers. They have established political access, deference among legislators, and working relationships with regulators. In exchange for paying dues, union members are often entitled to tangible services as well. For example, a union may provide legal counsel to members facing employment disputes. Membership in a union may also trigger legal options you would not otherwise have, such as binding arbitration through a hearing in which you have equal say with management in choosing the arbitrator who will decide your case.
As potential allies in your whistleblowing, unions vary tremendously. Some can be counted on to stand up for members who blow the whistle. They may also work in partnership with other groups, to link whistleblowers with affected constituencies. Other unions are so closely aligned with management that they would be reluctant to challenge your employer. Still others may support you in principle but may make a strategic decision not to push on the ethical issues you raise because they are in a protracted battle with management over pay, benefits, or other issues of higher priority.
Supportive local union leaders may not be able to come through for you if their efforts are vetoed by superiors who are cozy with management on the regional or national level. As you would with other groups, you should check out your union’s track record in assisting whistleblowers before you approach it for help. Be aware that if the union is unsympathetic to whistleblowers, a union official might alert management to your activities.
You may be faced with the decision to trade statutory rights against retaliation with those available in a union collective bargaining agreement. In the latter context, the union is the official party and controls the case, not you. To illustrate the risk, it is not unusual for whistleblowers to be frustrated because the union abandons their litigation short of receiving even an informal day in court through an arbitration hearing.
There is a rare hybrid that combines the missions of an issue-oriented public interest group and an employee organization. These groups consist of employees from a particular industry that have joined together to champion a common agenda. For example, for many years the Center for Women’s Economic Alternatives was a North Carolina self-help group for women working in the poultry industry. Because such groups are employee-focused, they are more likely to understand and be sensitive to whistleblower concerns. If an employee support organization exists in your field, it may be especially useful in connecting you with other like-minded professionals—including current and former whistleblowers—in your area of expertise.
Depending on your job, you may also consider approaching a professional association, such as the Union of Concerned Scientists, National Association of Social Workers, American Association for the Advancement of Science, American Society of Limnology and Oceanography, or a state bar association. These associations vary greatly in size and mission. Most provide dues-paying members with up-to-date information about developments in the profession, through newsletters, educational events, conferences, and job listings. Others, such as the Union of Concerned Scientists, will go further in defending the interests of members and the integrity of the profession. Those organizations that are independent and have large memberships can be credible and powerful friends in your battle to tell the truth and keep your career intact.
A note of caution: professional associations often have large budgets, but many acquire some of their funding from industry. Be sure to investigate where the association gets its funding by requesting a copy of its annual report. These reports should list the primary contributors and provide general information about the association’s program. Check with your peers to see what they think about the association and its leadership and if they have ever sought help from it. Often even the most cautious and conservative associations have an ethics committee whose members may be kindred spirits.
Remember, the principle of earned trust still applies to advocacy partners. Although many groups do admirable and important work, they can also be self-serving. These organizations do not have any inherent loyalty to you; it is to their mission. They may be sorely tempted to use you as an “information object.” They may not have any time for your retaliation struggle once they have vacuumed your brain. They may breach your confidentiality. This is not a context for blind faith.
The question of how much control you have over the public release of your information is something you need to negotiate in advance. For example, it may be acceptable to you for a group to use your information in framing tough survey questions based on your disclosures, even if you would object to the group’s asserting that it knows the answers. Remember that, unless you have approached the group’s lawyers to represent you, your disclosures to them are not automatically covered by the attorney-client privilege. Unless you work out a confidentiality agreement first, your information becomes theirs to use. As such it is advisable to research their reputation and how effectively they have worked with whistleblowers in the past. If you already have a lawyer, ask for advice about whether it is wise to approach a particular organization.
After identifying the right advocacy partners, how you approach them can be decisive in establishing a good working relationship. Never go in with demands. Although your issues are important, remember that there are a lot of competing issues and priorities for these groups. You do not want to alienate staff by being too pushy, expecting them to drop long-term projects for the honor of taking on your agenda.
If a whistleblower organization that you trust has established intake procedures, follow them. That generally means writing up the basis of your whistleblowing concerns and the details of your case in a standard two-page, single-spaced summary. If an organization does not have an established intake procedure, your summary can be sent to the appropriate contact person. If you are not yet sure you can trust the organization, however, do not share your summary or confidential information until you have a mutual agreement and a commitment from the group about how your information will be used.
As you begin communicating with an organization, remember that protecting your attorney-client privilege is critical if you want your information or identity to remain confidential. Advocacy groups are not automatically covered by the privilege. Therefore you may be waiving this legal right unless you talk only through the group’s lawyers, or someone supervised by a lawyer, on the condition that the conversation is covered by the attorney-client privilege. If you fail to protect your privilege by disclosing your information to a nonattorney, you could be deemed to have waived your privilege rights, and in legal proceedings that person could be required to share your disclosures.
Your next step is to make a follow-up call to the contact person to ensure that your information was received and to set up an in-person meeting. Be firm and politely persistent in your conversations. These groups generally are understaffed and overextended. They appreciate your sensitivity to what they are coping with; patience is an investment in your longer-term working relationship. If they are not interested, ask for referrals to other organizations. If the group is concerned and wants to help, be sure to establish clear parameters for defining your relationship. The sooner you communicate your mutual expectations, the less chance there will be for misunderstanding and potentially career-damaging mistakes.
Making an organization a valuable ally takes work and patience. The following are some questions you may want to research or ask:
What are the organization’s funding sources?
Has the organization worked with whistleblowers before? If so, who, and may I contact them about their experience?
What is the organization’s track record in making a difference with respect to issues raised by my disclosure?
How wide of an audience can the organization reach? How many members does it have? What is its capacity to mobilize them? Do relevant news outlets, congressional or local legislative offices, and government officials take its message seriously?
If it is a union or professional association, what benefits does it provide to members?
How will the organization use my information? What are the organization’s goals in using my information?
If applicable, is the organization willing to protect my identity as the source of the information?
To ensure accuracy, will I be able to fact-check public documents that the organization produces? (This is especially important if disclosures are of a highly technical nature.)
Is there one person who will be my primary contact?
If applicable, is the organization comfortable working with my lawyer?
What sort of financial commitment, if any, is expected of me?
The Internet has increasingly become a popular tool for persons of conscience and their advocacy partners, particularly when an employee wants to leak a “smoking gun” document that speaks for itself. Scanned photos or internal memos can set the record straight in a powerful way. Advocacy groups’ websites double as bulletin boards to post such documentation. The documentation can be supplemented with outreach to relevant management officers, decision-makers, and media outlets, with links back to the scanned documentation, a brief description of its significance, and even the public record of corporate bluffs surrounding it. As with white papers, these web links can be a resource confronting companies with a well-documented message while keeping the messenger safe.
WikiLeaks.org offers one such vehicle for the anonymous posting of disclosures about corporate and governmental wrongdoing. It boasted more than 1.2 million documents within a year of its winter 2006–2007 launch. According to the site, WikiLeaks was founded by Chinese dissidents, journalists, mathematicians, and start-up company technologists from the United States, Taiwan, Europe, Australia, and South Africa interested in exposing oppressive regimes and unethical behavior without risking prison for whistleblowers and journalists. The site won the 2008 Economist Index on Censorship Freedom of Expression Award and the 2009 Amnesty International Human Rights Reporting Award (New Media). It gained the financial support of the Associated Press and the Los Angeles Times for releasing such headline-generating documents as human rights abuses in Iraq, Guantanamo Bay standard operating procedures, Sarah Palin’s Yahoo! account e-mails, and the Minton Report on toxic dumping in Africa.
The website became famous, or notorious, in 2010 with multiple notable releases. First, in April it posted a video titled Collateral Murder, apparently recorded from an American military helicopter gunship that fired on and killed 12 innocent Iraqis, including two Reuters reporters. The pilots exhibited a “video game” mindset, laughing and joking in firing their weapons. When a van full of individuals showed up to help the wounded, the van was attacked as well. It subsequently released hundreds of thousands of documents related to the American occupation of Afghanistan, including information on a CIA “black ops” assassination squad, the systematic US suppression of Afghan civilian casualties, and US officials’ belief that the Pakistan military was aiding and guiding the Afghan insurgency. That was followed, with worldwide controversy, by the release of hundreds of thousands of pages of classified documents on the Iraq War and State Department diplomacy. As of this writing, the website is previewing similarly ambitious corporate releases.
Financial constraints and court injunctions have periodically led to the suspension of some of WikiLeak’s activities, and it is under cyber-attacks to shut the site down by overwhelming its servers. Moreover, while the website purports to promise anonymity (and to this point it has not divulged any sources), a whistleblower should never assume that sending these types of materials online means they are not leaving tracks. In general, electronic communications leave footprints—even after you delete them. At the time of this writing, the US Army has charged and is holding one private with the leaking of the Collateral Murder video. His legal prospects are not strong, as military whistleblowers enjoy extremely limited protections.
Whistleblowers should be cautious of something else: there is no buffer between you and WikiLeaks-type websites that simply post materials. No one at WikiLeaks offers its sources legal advice about the risks the sources are running. Are you sure that what you are releasing won’t incriminate you? How many other people might have had access to the files you are releasing so that the trail does not lead directly to you? Could you be fired in retaliation? WikiLeaks alongside similar sites such as Cryptome.org has proven to be a powerful, though not risk-free, option for whistleblowers wishing to remain anonymous. Wikileaks does not purport to do more than dump anonymous documents into the public domain. It does not get involved with follow-up investigations or advocacy. The good offices of an attorney or advocacy group are still advised prior to blowing the whistle via the World Wide Web, if for no more reason than to provide a broader context for the web disclosure.
Employees who decide to blow the whistle or have already done so need a strong support network that includes legal expertise because—as discussed in the next chapter—whistleblowing can take on complex legal dimensions. Regardless of whether your experience leads to a lawsuit, an attorney can prove invaluable. Nevertheless, financial considerations or the particulars of a case may lead some whistleblowers to deal with the matter independently, or pro se.
A well-informed and sympathetic attorney can offer assistance at every step of the whistleblowing process, not just in the courtroom against retaliation. An attorney can help you prevent reprisals from occurring in the first place by supervising and monitoring your disclosure through the safest channels. If retaliation is inevitable, an attorney can ensure that you are on solid legal ground by screening your whistleblowing disclosure to provide an expert opinion on whether it is legally protected speech. If you say too much or do not have enough corroborating evidence, you may forfeit your rights against harassment.
Of course, effective legal counsel depends on picking the right lawyer and maintaining an effective working relationship. In the eyes of the law, the attorney and client are one. The attorney is the client’s mouthpiece, and the client automatically receives both the benefits and the liabilities of the attorney’s statements and decisions. Your choice of a lawyer is as significant as any other decision in the whistleblowing life cycle. Unfortunately, many whistleblowers are so eager to get their cases into the hands of an “expert” that they accept the first lawyer who will take them on affordable terms, entrusting their whistleblowing experience and their professional future to someone they really do not know. Such an arrangement poses unacceptably high risks to future happiness, financial well-being, and legal success.
Instead, create a list of lawyers with whom you might want to work. Ask your friends, family, colleagues, and anyone else whose opinion and judgment you trust. Get specific information from these sources. Find out what legal issues your contacts had in mind and what made a particular lawyer a good choice. Additional resources that may help you find representation are the websites of the National Employment Lawyers Association (NELA; http://www.nela.org), the Public Justice (http://www.publicjustice.net), and your state and county bar associations. Whistleblower support groups like the Government Accountability Project, the National Whistleblower Center, and Taxpayers Against Fraud (http://www.taf.org; for False Claims suits) have attorney referral programs and a familiarity with other lawyers’ track records.
Both NELA and the bar associations list local lawyers who specialize in employment law. In addition, bar associations keep records of disciplinary or misconduct issues that a given attorney has had. Public libraries should also have a copy of the Martindale-Hubbell Law Directory, which describes the specialties of attorneys under a variety of cross-references; it is also available online (http://www.martindale.com). When seeking a referral, ask for attorneys who specialize in wrongful discharge. If that fails to produce an adequate list, broaden the scope of the search to employment law. Be aware that you want a lawyer who mainly represents employees, not employers! The employment bar is highly divided.
Once you have a list of attorney prospects, you should set up meetings to get a feel for how it would be to work with them. Find out ahead of time whether the attorney charges a fee for an initial consultation. Pin down who would handle the case, as it may not be the same attorney assigned to discuss your case initially. Do not make a decision until you meet and have confidence in the specific attorney who will be responsible for defending your rights and interests.
Also consider consulting whistleblower organizations such as GAP or other public interest legal organizations that have an interest in the particular issues behind your whistleblowing. Remember that the attorney-client privilege does not apply during discussions with lay representatives unless they are supervised by an attorney. By pointing out that you have suffered retaliation for pursuing issues of public concern on the job, especially ones that relate to the organization’s mission, your need for legal help will be clear. In some instances they may be able to provide legal assistance directly. In most cases they can refer you to other experienced attorneys who can assist you. Referrals are a routine part of GAP’s service to whistleblowers.
Ultimately, trust and intuition are as important as a catalog of do’s and don’ts in selecting and working with an attorney. Like any partnership, to be effective the attorney and the client should like each other and have a rapport based on mutual respect, at least within the context of their professional relationship. After all, they must rely on each other in a high-stakes conflict in which they are both underdogs by any conventional measure. Being open with each other is a prerequisite for success.
The smart whistleblower will follow both intuition and the guidance of this section, which is based on lessons learned by others who have gone through the same experience. The first set of factors concerns finding the right attorney; the second focuses on maintaining a good relationship and terminating a bad one.
Again the first step is your two-page summary. Prospective attorneys will appreciate the time they save by reading it before meeting with you. They can then get down to asking you the hard questions with some background knowledge of the dispute and its context. Remember that your case summary supplies an attorney’s first impression of you and your communication skills. It allows the attorney to test your credibility by revealing whether you tend to exaggerate. Stick to the facts and avoid overstatements or unnecessary conclusions.
It is important to have a guide who has been down this difficult legal road before. Lawyers have different training, interests, and expertise. You need an attorney who has handled whistleblower cases before, ideally with favorable outcomes for the clients. Attorneys without relevant experience may be excellent lawyers, but you need an advocate who knows where all the potholes and pitfalls on this road are and how to avoid them.
You should also be aware of any possible conflicts of interest that a lawyer might have in taking your case. Conflicts of interest arise when a lawyer has had dealings with the other party in your case; has an interest in the outcome of your case other than as your representative; has prior knowledge of, or connection to, your case; or is representing other clients whose interests conflict with yours. Lawyers are ethically obligated to investigate any possible conflicts of interest and report them to you, but it does not hurt to ask and to get your lawyer’s response in writing. If you remain concerned, you can check the Martindale-Hubbell database or use a web search engine to investigate the attorney’s history and past clients.
No matter how experienced or skilled a legal practitioner your attorney is, he is also your employee and someone you will need to get along with at least on a professional level. Throughout this process, you will need to supply your attorney with information, make requests, and cooperate in a variety of ways, so it is important that the two of you can work together effectively. One common reason that attorney-client relationships sour is that each entered into the partnership with differing expectations of their relationship. An essential step in deciding on an attorney is to clarify—and then communicate—your own expectations in as much detail as possible. Consider whether you wish to remain as detached as possible without compromising your interests or whether your active involvement in the lawsuit is important for emotional vindication. In case of the latter, it would be mutually frustrating to hire the equivalent of a brilliant surgeon with no bedside manner.
Another area to clear up is who’s in charge. While clients are officially the bosses, many just want a lawyer to tell them what to do. And many lawyers will not have it any other way. Other clients want to actively retain control of choices that are fundamental to their lives, such as which risks to take, after listening to their lawyer’s recommendations. Compatibility on issues like this will make or break your working relationship.
Make a list of relevant documents currently or potentially available for your whistleblowing case. Identify solid candidates as supporting witnesses, and be prepared to describe how their testimony could help. You are not likely to win without either documentary evidence or strong supporting testimony. With that said, have your evidence available, but do not swamp a prospective attorney with too many documents during the initial consultation. Whistleblowers who show up with multiple binders of documents at the outset may simply overwhelm the lawyer.
This includes not only issues involving the attorney’s representation but also matters concerning the larger public policy issue that triggered your whistleblowing. Not all employees want or expect the same thing when they initiate legal proceedings as a result of employer retaliation. Employees may seek reinstatement, reversal of other retaliatory measures, monetary damages, adequate resolution of the originally reported misconduct, increased public awareness of an issue, or variations on and combinations of these aspects.
When hiring a lawyer, ensure that he understands and shares your goals. If you just want the situation to go away quietly and to get your job back, a lawyer or legal organization that wants to raise awareness about whistleblower issues may not be the best match for you. If you want to take a stand and make a statement, make sure your lawyer knows this and is prepared for a public campaign rather than a quick monetary settlement. Lawyers and legal organizations vary tremendously in their values, priorities, and work styles. There is limited overlap between the tactics and the outcomes of an attorney whose primary goal is to make money compared with one whose primary goal is to make a difference. It is important that you be clear and make sure your lawyer is willing to pursue your goals.
Some attorneys are unwilling to relinquish control of valuable information they learn from legal depositions or subpoenaed documents until the lawsuit is over, leaving groups who helped champion your cause holding the bag. This could mean that evidence may not reach the public for years—even if that evidence could prevent needless tragedies or scandals. This issue is a complex one. There are often valid legal reasons for keeping significant evidence secret. The use of secrecy is a necessary tactic in litigation.
For example, premature public disclosures may rule out future voluntary cooperation by your former employer or colleagues in pretrial efforts to gather necessary facts for the lawsuit. In some instances willingness to keep damaging information “under seal” could increase the value of a settlement in your case. But that could have the ironic result of sustaining a cover-up that you lost your job trying to expose. Instead of getting the truth to the public, you will just be trading money for silence—getting paid to help keep the misconduct secret. In the process, you may have burned your professional bridges within the corporation, the industry, and your profession.
In short the best way to win damages in a lawsuit is not always the best way to expose and correct the wrongdoing that led you to blow the whistle. These dilemmas are inherent in whistleblowing. They are tough choices and, ultimately, yours to make—not to let your lawyer make for you. The important point here is that you should pick an attorney who shares your perspective as much as possible, to avoid the possibility of serious conflicts at a critical juncture in the case when they could be highly damaging.
Make sure you and your lawyer see eye-to-eye on your respective roles in the case—about how much of the work you expect to be doing and how much is your attorney’s responsibility. Find out how much time the attorney is willing to commit. Even the best lawyers are inadequate if they are too overburdened with work to give your case the attention it needs. On the other hand, many clients have an entirely unrealistic expectation of how much time is necessary. Remember that each task you complete is a task that you will not have to pay your attorney to do. Committing your own time and energy to the case can help keep costs down.
Developing clear and consistent lines of communication is an invaluable element of any attorney-client relationship. Depending on what you decide about your respective roles, figure out how much notice you will receive of developments, information, and decisions that make a difference for your case. An attorney who withholds key developments from a client can poison a working relationship and fatally undermine a client’s rights. On the other hand, it is unrealistic to expect a lawyer to review daily developments with each client. Establish this balance up front with an understanding that adjustments are sometimes necessary.
Remember that the great majority of cases settle before trial. You should request advance notice of proposals before they are made on your behalf and of offers from the other side before any response is issued. Your attorney should be willing to respect your authority as the final decision-maker on any settlement. A client is in a position of comparative weakness if an attorney threatens to quit unless settlement terms are accepted on the eve of trial. Remember that your lawyer is the partner on your team who has unique expertise. Most of us have unrealistic expectations of what we deserve to achieve in a settlement. From a lawyer’s standpoint, a client is being unreasonable if she rejects a settlement that is comparable to what she would receive if the case were won in court. If the whistleblower’s primary motivation is to have his or her “day in court,” the lawyer needs to know this at the outset.
Pursuing legal remedies can be a long and costly process. Although everyone would like to be able to hire a dream team of the best legal minds in the field, this may not be realistic. You must be aware of how much money you can afford to spend on this battle and how much a particular lawyer will cost you. Even if you expect to ultimately recover legal fees in court, be prepared for the possibility that you will not win the case or will have to settle for less monetary recovery than originally expected.
Discuss your attorney’s fee structure up front and get a written contract explaining the terms in language you can understand. This contract should lay out the billing process, whether you will pay a retainer (a deposit against future fees and costs), when and how you will receive progress reports, and how conflicts with your lawyer will be resolved. Lawyers typically charge based on an hourly, a flat, or a contingency fee structure.
Hourly fee structure The advantage of the hourly rate is that you pay only for the time your attorney spends on your case. Possible problems include “over-lawyering” to run up bill, dragging the case out, and billing support staff time at the lawyer’s hourly rate. To lessen these potential problems, you should compare bills to estimates, require your written consent to exceed a maximum amount, and offer to contribute your own time to complete minor tasks.
Flat fee structure The flat fee structure provides certainty in advance about the cost, and it may work out to be cheaper per hour than hourly billing. It’s also good for pro se employees who need help with some issues. But it’s not practical with lengthy proceedings whose duration is difficult to predict, and it’s a financial disincentive to make extra effort. You should specify what is and is not covered in the fee.
Contingency fee structure The main advantage of the contingency fee is that you may not need to pay anything if you lose the case. This may be the only option for some employees. On the downside, there are considerable fees if you do win, and there’s little financial incentive for sustained effort if settlement negotiations fail to produce easy resolution. You should ask several lawyers what your chances of success are and how much you might be awarded, determine the lawyer’s percentage (calculated after deducting expenses from the court award), and specify in the retainer the minimum level of commitment the lawyer will make to ongoing efforts in the case.
Many lawyers will be quite flexible in fee arrangements that are customized for your resources. For example, if you cannot afford conventional representation, for drastically less money the lawyer may serve as your debate coach and editor while you represent yourself. Often this will be the case for early, informal stages of a lawsuit, with traditional representation deferred until the lawyer is indispensable for formal due process stages such as depositions or trial.
Treat this agreement with as much respect as you would any other contract. It may be one of the most important contracts you ever sign. What is your attorney agreeing to do or not do? Read the terms carefully to make sure the scope of representation covers all critical issues and defendants and reflects any informal agreements reached on items listed above or from your own checklist. Consider getting a second opinion from a disinterested attorney. Remember that a retainer is usually drafted to protect the lawyer, not you, and may be rigged so that if anything goes wrong, the attorney can easily abandon the relationship without any messy carryover responsibilities. If you do not understand a term, ask the attorney to explain it and to replace the legalese with words you understand. If the attorney balks at this or is hostile to modifying any one-sided terms, think about hiring someone else.
After finding a good lawyer, maintaining a good working relationship that unites your values with your lawyer’s expertise is the key to a successful outcome. Remember, your lawyer is working for you. Feel free to read and research the legal arguments so that you understand the basis for a decision. If necessary, get a second opinion. Be aware, however, that your attorney has only limited time to teach you about the legal process and will expect respect for professional judgment calls. Although you may be the boss, your attorney is the expert with the skills to lead you through largely unknown and potentially treacherous territory.
The high-stakes relationship between an attorney and a client requires regular tending. Here are a few suggestions for keeping it strong.
Annoyance with a client for failing to keep up with expected payments is a major reason why lawyers reduce the time and the energy they put into a case. If there is a financial crisis, give your lawyer as much warning as possible and seek alternative arrangements.
View your lawyer as a human being who has a family and other clients and gets tired like everybody else. Attorneys understandably do not appreciate being seen only as instruments to bring their clients legal success and may become resentful if they feel that this is your only perception of them. Keep in mind that it is not to your advantage for your champion to resent you.
Do not cry wolf or demand instant attention for nonemergencies. When possible, put developments in writing instead of insisting on a phone call or a personal conference. Confirm periodically, however, that the lawyer has read, understood, and properly processed your written contributions.
Do not insist on dealing only with the lawyer running the case. Get to know any junior attorney, administrative assistants, and law clerks who are a part of your attorney’s team. Work through them whenever necessary to relieve your lawyer from being an intermediary. They may be putting in a majority of the actual time invested in your case and may even be more familiar with some of the details.
Your attorney should be able to count on you as the human encyclopedia of what happened. Be available to provide complete and reliable information about your case on request. Offer facts that can be verified on the spot through citation or documentation.
If you are compelled to advance your whistleblowing or secure additional advocacy partners, do not disclose information about your case without first consulting with your attorney. Your lawyer may have a plan to use this information strategically in court. In some instances, disclosure could violate a court order. You will make it much more difficult for your attorney to prosecute your case if you fail to discuss independent actions you are taking to advance it. This does not mean passively acquiescing to censorship by your lawyer—this is all about your choice whether and how to blow the whistle—but it must be an informed choice that does not blindside your lawyer.
In most types of litigation, contracts with lawyers last for one stage of the process. This means that in the event of an appeal, most people will either renegotiate their agreement with their lawyer or find new counsel. If your attorney agrees, it is ideal to write an option into the contract for you to retain your attorney’s services throughout multiple stages of proceedings, as it is advantageous to continue working with a lawyer that you are comfortable with and who knows your case well. The norm is to renegotiate after each stage of the process, however, so be prepared for the possibility that your attorney will not want to sign on for appeals up front.
Ideally, after your careful search for an attorney, you will not feel the need to terminate the relationship prematurely. As in any relationship, however, it is possible for things to sour. Your contract with your attorney should reflect this possibility. A typical termination clause will allow you to end the relationship at any time for any reason but will require you to pay all fees and costs incurred to date. The attorney is allowed to terminate the relationship if further proceedings would be frivolous, unreasonable, or groundless; if irreconcilable differences arise; or if you fail to perform your legal or financial obligations. In the case of a breach of contract, retainer agreements may specify arbitration or the law and the location of any court-based dispute. Consider whether arbitration is provided free of charge and whether the contract’s jurisdiction is your state of residence.
Your contract’s termination clause should include provisions that do not leave you vulnerable to waiving your rights. To illustrate, ensure an adequate transition to your next lawyer if your attorney does withdraw. This means having clauses that prevent your attorney from dropping the case or raising his fees within a certain time prior to the trial and guaranteeing that your attorney will pass on all relevant documents and information to your next lawyer. At the trial stage, once legal proceedings have commenced, rules of professional conduct typically require an attorney to seek court approval before withdrawing.
Like advocacy partners, lawyers are a valuable resource for navigating the rough terrain of a whistleblower claim. Due to the difficulty and the expense of obtaining counsel, it may be more practical to partner up with a public interest organization that has its own lawyers willing and able to assist or represent you. If you take that approach, however, remember that significant conflicts of interest are possible between you and the public interest group. Your retainer with the group’s lawyer should clearly resolve where loyalties are in the event of a conflict, or you could face a bitter surprise.