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To continue: The employment retaliation context may be
the first time a particular person has ever
hired a private attorney. Because most people
want whistleblowing activities kept confidential
(knowing they can damage future job or career
prospects), word-of-mouth referrals are often
difficult, if not impossible. Bar associations,
whistleblower organizations, unions and professional
associations, family and friends are all
potential referral sources. Advocacy organizations often also make referrals.
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|Interviewing can make a difference. Many
employees facing retaliation simply want
an attorney who claims expertise and promises
to take care of this problem for them. An
attorney's positive attitude is reassuring.
Many attorneys prefer docile rather than
empowered clients, which can create long-run
problems if they do not disclose their own
economic interests and biases as well as
experienced analysis.Remember that attorneys
can be slick when selling themselves, but
less diligent or willing to explain their
recommendations after being hired and starting
to run up a bill. A paternalistic policy
may in fact disserve clients. Remember, several
courts hold clients to the legal standards
of attorneys (and may not hold attorneys
accountable at all). Therefore, a client
who trusts agency and attorney promises may
not realize that the attorney is not doing
his job until post-settlement problems hit.
Some problems can be avoided by preparing
a short memorandum summarizing the case before
seeking legal advice, interviewing several
attorneys, and then comparing and clarifying
their responses before hiring one. Of course,
whistleblowers upset by retaliation may be
least willing or able to prepare for this
decision, which has significant economic,
career and legal consequences. This may well
be the worst time to rely on "gut instincts."
|A big part of an attorneys' job is considering
the downside consequences, including years
down the road. This negative thinking based
on the case law and experiences of dissatisfied
employees and employers is designed to assist
clients to avoid unpleasant future consequences.
However, some attorneys prefer to ignore
the future, and thus can misadvise their
clients. While this may constitute misconduct
in other legal specialties, courts here may
prefer an ostrich or blame-the victim approach.
Thus, self-help may be the key.
|Fees may well be the prime source of conflict
between any attorney and client. The whistleblower
context may magnify this because many whistleblowers
already feel victimized. Many also do not
want to pay for legal services when they
have not only not done wrong, but have committed
a socially courageous and useful act in whistleblowing.
Fees mount quickly and can quickly feel like
an albatross or force settlements, particularly
for those not union members. However, only
in some qui tam cases (and government employees rarely qualify
under that statute) will attorneys often
accept cases on a contingency basis (with
the majority of the fees due only if the
employee wins). Even then, the client is
usually responsible for court costs. Although
some lawyers prefer to avoid discussing fee
issues upfront (or ignore the promises made
at the outset), this can leave the employee
feeling doubly victimized--by the attorney