A telephone rings, interrupting the otherwise quiet hum of a Tuesday afternoon's work in a government attorney's office. A pair of eyes dart quickly from a blinking cursor on the computer screen to the receiver of the multiline telephone. A hand reaches forward from the keyboard to grasp the telephone receiver, and, as the receiver is raised up to the attorney's ear, with the single uttering of "good afternoon," an ethical dilemma arises. The voice on the other end of the line has information–information to share–and now the attorney must decide whether continuing the conversation would comply with the applicable rules of professional conduct.
When an attorney for the government answers the telephone and is put on notice of a qui tam suit being brought under the Civil False Claims Act (the Act), what obligations arise under the professional rules against contacts with represented and unrepresented persons? How far should the prohibitions against attorney contacts with represented persons and unrepresented persons extend in Act investigations? ...
This Comment will compile, summarize, and explore the various authorities that control a government attorney's professional and ethical considerations regarding investigations under the Civil False Claims Act umbrella. In particular, this Comment will focus on the government attorney's interactions with represented and unrepresented persons in the initial, intervention, and investigative phases of an Act prosecution. This Comment takes the approach that attorneys for the government, when investigating violations of the Civil False Claims Act, should have at their disposal the range of legitimate investigatory tactics that are available to attorneys pursuing pre-indictment, pre-custodial criminal investigations.
Burchell, Erica L.
"Encroachment, Loss of Five Yards: Government Attorneys and the No- Contact Rule's Place in Civil False Claims Act Investigations,"
Mercer Law Review: Vol. 68:
3, Article 13.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol68/iss3/13