Federal courts have held that whistleblowers may not file lawsuits under the False Claims Act (FCA) without the assistance of an attorney. See, e.g., United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92–93 (2d Cir. 2008).
Although federal law permits individuals to represent themselves in most civil matters, that only applies to “their own cases,” not the cases of others. 28 U.S.C. § 1654 (emphasis added). The government is the true “party in interest” in a FCA claim, even though both it and the whistleblower stand to recover. To ensure that this governmental interest is protected, federal courts require whistleblowers to use attorneys for their FCA claims.
Therefore, prospective whistleblowers must retain counsel in order to file a FCA lawsuit. This requirement should not be viewed as a roadblock: the FCA is a complex area of law, and a whistleblower can almost immediately destroy their claim and lose all statutory protection without the help of an attorney. Also, most whistleblower attorneys take cases on a contingency basis, meaning they are only paid if the claim succeeds. Finally, the FCA often requires the defendant company to pay your attorneys’ fees after a successful claim. See, e.g., 31 U.S.C. § 3730(d)(1).