Can a former in-house lawyer act as a False Claims Act whistleblower (qui tam relator) against a former employer-client using information learned during the representation?

Plain-English summary

The inquirer is a New York attorney who had served as general counsel at a federal contractor, Corporation X, subject to Federal Acquisition Regulation 52.203-13, which requires contractors to maintain a written code of business ethics and an internal control system to detect and prevent improper conduct on government contracts. As in-house counsel, the inquirer drafted a compliance code, but the corporation did not adopt it or implement any alternative compliant code or controls. The corporation continued to bill the federal government under its contracts. After his employment was terminated, the inquirer wanted to act as a qui tam relator alleging that Corporation X submitted false implied-certification claims while violating the FAR requirements, basing the allegations on knowledge acquired during his employment.

The committee concluded that the lawyer may not serve as a relator against the former client on these facts. The information underlying the claim was confidential information of a former client protected by Rule 1.6 and subject to Rule 1.9(c), which bars a lawyer from using a former client's confidential information to the former client's disadvantage or revealing it, except as the Rules otherwise permit. Bringing a qui tam action against the former client based on that information would use and reveal it to the client's disadvantage.

The committee identified the limited exception. Disclosure could be permissible only where it is necessary to prevent the commission of a crime, consistent with Rule 1.6(b). The opinion situates the analysis within the lawyer's duties to a former organizational client, drawing on Rule 1.13.

In practice

Under this opinion, a former in-house lawyer's qui tam relator role against a former employer-client, built on information learned in the representation, is prohibited. Per the opinion, the only identified path to disclosure is where it is necessary to prevent the commission of a crime under Rule 1.6(b); the opinion does not authorize disclosure to pursue a financial recovery as a relator.

Common questions

Q: Can a former in-house lawyer be a False Claims Act whistleblower against the former employer?

A: Per the opinion, not where the supporting information was obtained during the prior representation, because Rule 1.9(c) bars using or revealing a former client's confidential information to the client's disadvantage.

Q: Is there any exception?

A: Per the opinion, yes, a narrow one: disclosure may be permissible where it is necessary to prevent the commission of a crime, consistent with Rule 1.6(b).

Q: Does it matter that the lawyer's concerns were about regulatory non-compliance he raised internally?

A: Per the opinion, the lawyer's internal remonstrance does not lift the confidentiality duty; the controlling question is whether using the information as a relator would disadvantage the former client absent the crime-prevention exception.

Background and rules framework

The opinion interprets New York Rule 1.6(b) (permissive disclosure, including to prevent a crime), Rule 1.9(c) (use and disclosure of a former client's confidential information), and Rule 1.13 (the organization as client). These correspond to ABA Model Rules 1.6, 1.9, and 1.13. The conduct arises under the federal False Claims Act, 31 U.S.C. sections 3729 to 3733, and Federal Acquisition Regulation 52.203-13.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.6(b), 1.9(c), 1.13

Statutes and regulations:

• False Claims Act, 31 U.S.C. sections 3729 to 3733
• Federal Acquisition Regulation 52.203-13

See also

• NYSBA Ethics Op. 1286: Asking Former Clients for Google Reviews
• LACBA Ethics Op. 463: Confidential Information About a Former Client's Securities Fraud
• LACBA Ethics Op. 466: Disclosure of Evidence of Crime Received From a Client
• LACBA Ethics Op. 274: Confidential Communications and Client Files

Source

• Landing page: https://nysba.org/ethics-opinion-1287-whistleblower-using-confidential-information-of-former-client/