Interviewing Whistleblower Attorneys

Attorneys often have specialties which guide their approach to a whistleblower's case. An attorney who practices solely before the MSPB will probably not know the relevant statutes and procedures in U.S. District Court, nor the conflicting standards between OSC/MSPB practice and that before the Secretary of Labor and EEOC. And an attorney familiar with First Amendment law may not even expect the MSPB's cramped interpretations of whistleblower protection. Advocacy organizations may be fixated on media involvement. The client's right to decide important matters about his or her case can well be overlooked or lost in the shuffle. Ideally, the attorney should know several relevant statutes, and similar ones in the private sector (like Sarbanes-Oxley, and the False Claims Act/qui tam law). Of course, some attorneys consider client interviews offensive (especially if the client admits considering other attorneys). Still, multiple screening interviews may in fact create a stronger relationship through better communication, and thus a long term resolution.

Crystallizing a case to a document of between two and five pages makes hiring an attorney (or discussing matters with an agent) more intelligent. It also demonstrates professionalism. Speculation, personal opinion and animosity toward others should definitely be left out. As discussed below, bring documents too, if asked. Lockouts are possible, so these memoranda and other records may need to be kept outside the workplace. Never disclose confidential information in an email (the Internet should be presumed insecure) or even voicemail (which can be retrieved from a speaker phone or in a public place) or in any intake document without specific assurances of confidentiality.

Interviews have two sides: questioning and listening. Front end preparation can avoid future problems. Most attorneys will tout their own skills; many hide their deficiencies; and a few promise more than they can or will deliver. Notes can avoid problems, as can discussing these areas:

• fees
• deadlines
• roles, time and the attorney handling the case
• track record (if checkable, unlikely in MSPB matters)
• expectations of client participation
• confidentiality

Discuss both settlement and litigation up front? The issues here are candor and comparing attorneys, both delicate matters. If the attorney pooh-poohs litigation and in-court representation, or flat-out refuses a consultative role, he or she may be planning a token settlement. The longer the wait and the more attorney time involved, the stronger the attorney's practical position with respect to fees owed, and the less he or she may feel inclined to reveal to the client. This can be a conflict of interest. Whether attorney control helps a client depends on the attorney's skills, diligence and loyalties. Many attorneys sidestep client empowerment issues as well as their personal economic calculation, unless pressed. Admittedly, the attorney also probably does not know much about the case at this initial stage, so even candid answers will be hazy. Still, postponing these discussions can lead to sharp future practices. The MSPB's secrecy further complicates matters (and double-checking attorney statements or promises).

Please consult an attorney or agent before any secret taping. While some courts might appreciate the desire to preserve evidence, some state wiretap laws are strict. Remember the trouble Linda Tripp got into? An attorney or government investigator should also be consulted before taking any agency (or corporate) documents off-site, even copies. Taking records off-site can be portrayed as theft or espionage. In the worst case scenario, both are prosecutable unless performed at the direction of a government agent or otherwise shown as performed without criminal intent. Removal may also violate agency security procedures, which could be later used against even an internal whistleblower's security clearance. The trouble is that these may be the heart of the whistleblowing case, and the MSPB may not allow future access otherwise (and dismiss the case). That's another reason why managers often cut off a known whistleblower's access to sensitive data or information as retaliation intensifies, even if the whistleblowing remains internal, within the agency. Leaving relevant records in place might also allow their destruction. Thus, keep personal back-up records away from the whistleblower's desk or office (which can be searched by a retaliating manager or other subordinates) if possible.

Contents

• Interview several attorneys
  
  
• Prepare in writing too
  
  
• Learn during the interview
  
  
• Tapes and Off-site Records