Most whistleblowers don’t start out looking for a lawyer. They start out trying to fix a problem. They see billing fraud, false certifications, or dangerous corner-cutting. They raise it internally, assume someone in compliance will take it seriously, and wait for change that never comes. By the time they call counsel, the damage is often done—not just to the government’s case, but to their own credibility.
We’d like to thank our friends at Whistleblower Law Partners for the following discussion about five of the most common—and preventable—mistakes new whistleblowers make. Every lawyer handling a potential False Claims Act or SEC submission should know these patterns and be ready to course-correct early.
Reporting Internally Without Legal Guidance
Most whistleblowers believe they’re “doing the right thing” by first reporting inside the organization. That instinct is good, but without counsel, it can backfire.
Internal reports almost always trigger two things: (1) a compliance investigation designed to protect the company, not the employee, and (2) retaliation—sometimes subtle, sometimes immediate. Once HR and compliance start collecting statements and emails, the whistleblower is already behind.
Lawyers can’t stop employees from reporting internally, but they can prepare them. That means:
- Documenting what was reported, when, and to whom.
- Preserving original evidence (emails, billing data, policy documents) in personal, secure copies.
- Avoiding speculation or emotional accusations that make them sound unreliable.
A short consultation before the first internal report can prevent months of damage control later. Counsel can explain how to raise the issue in a way that preserves credibility and aligns with eventual FCA or SEC allegations.
Talking About The Case—To Anyone
The second mistake is silence failure. Whistleblowers often talk about their concerns with co-workers, friends, or family. They assume a spouse or colleague is “safe.” They’re not.
Loose talk destroys confidentiality and can compromise a potential qui tam complaint. If the information circulates publicly—or even semi-publicly—it risks triggering the “public disclosure bar.” Worse, once the company learns someone’s talking, it can rush to self-disclose, undercutting both the relator’s claim and their potential share.
Lawyers can prevent this by setting bright lines early. Whistleblower representation starts with an explicit confidentiality warning: no social media, no texts about “the case,” no venting emails to old colleagues. Counsel should also take custody of all sensitive evidence immediately, preserving chain of custody and ensuring that nothing leaves the whistleblower’s control in a way that violates corporate data policies.
In short: clients can’t “whistleblow by committee.” The fewer people who know, the stronger the case.
Collecting Evidence The Wrong Way
Every whistleblower needs documents—but how they get them can make or break the case. Too often, relators panic and start forwarding emails from their work account, downloading massive data sets, or walking out with thumb drives. That can cross into unauthorized access under the Computer Fraud and Abuse Act (CFAA) or breach confidentiality agreements in ways that anger a judge, even when the substance of the claim is righteous.
The distinction matters: relators can generally retain evidence they were entitled to access in the ordinary course of their duties, but they can’t hack or exfiltrate. Courts have little patience for sloppy collection.
A good whistleblower lawyer trains clients on evidence hygiene:
- Take only what you could legally view while performing your job.
- Do not attempt to access or copy restricted files.
- Never delete anything or alter timestamps.
- Use secure upload portals—no Dropbox links or personal Gmail threads.
Lawyers can also work with forensic specialists early to preserve metadata and authenticate documents, avoiding later disputes about chain of custody.
The rule is simple: whistleblowers should be witnesses, not amateur investigators.
Waiting Too Long to Act
The False Claims Act’s statute of limitations is complex: generally six years from the violation, or three years from when the government knew or should have known, but no more than ten years total. The SEC and IRS programs have their own timelines. In practice, delay kills more cases than any other factor.
Whistleblowers wait for good reasons—fear, uncertainty, or misplaced optimism that internal reforms will fix the problem. But as time passes, evidence disappears, employees leave, and the fraud becomes harder to prove. Worse, under the first-to-file rule, if someone else brings the same fraud first—even a weak case—the later relator is barred.
Lawyers can prevent this by creating a clear timeline during the initial intake:
- When did the misconduct start?
- When did the client first suspect it?
- Who else knows?
If the story spans several years, counsel should immediately assess whether the earliest conduct is still actionable. Early filing—sometimes even a “placeholder” complaint under seal—protects the relator’s position while allowing time for fuller development.
Delay also affects credibility. Prosecutors and agency lawyers trust relators who act quickly and methodically; they lose patience with those who waited until termination or retaliation to “discover” fraud.
Misunderstanding What Counts As Fraud
Finally, many would-be whistleblowers think any unethical or inefficient conduct equals fraud. It doesn’t. The False Claims Act punishes knowing submission of false claims to the government for payment—not poor management, waste, or regulatory gray areas.
A nurse who sees overworked staff may witness negligence, not fraud. A coder who spots confusing billing rules may see sloppy training, not intent to deceive. The line between error and fraud is scienter—knowledge, deliberate ignorance, or reckless disregard.
Good lawyers filter cases ruthlessly. They test whether there’s evidence of falsity, knowledge, and materiality (i.e., would the government have paid if it knew the truth). They ask the hard questions clients avoid:
- Who benefited financially?
- Did anyone raise concerns internally?
- How do you know it wasn’t a mistake?
By setting that bar early, counsel prevents clients from filing doomed cases that waste years and destroy their professional reputations.
The Lawyer’s Role: Early Calibration
Most whistleblowers come in anxious, idealistic, and misinformed. The lawyer’s job is part translator, part reality-checker. Good intake work can prevent almost every mistake above:
- Educate quickly — explain how the FCA actually works and what the client can (and can’t) do.
- Preserve evidence safely — use secure systems and maintain chain of custody.
- Control disclosure — limit communication until a filing strategy is in place.
- File first, refine later — protect the relator’s position before deadlines pass.
- Test the fraud theory — separate regulatory noncompliance from actionable deceit.
Handled well, those steps turn chaotic insider complaints into credible, prosecutable cases. Handled poorly, they turn good witnesses into cautionary tales.
Whistleblower law rewards precision and restraint. The biggest mistake—by far—is thinking passion substitutes for process. It never does.