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Qui Tam 2019 is the second annual conference of the Federal Bar Association's Qui Tam Section, for which TELG's Scott Oswald serves as chair. The two-day event will tackle some of the hottest topics in False Claims Act litigation, with panels featuring attorneys from both sides of the aisle, along with government prosecutors, agency representatives, and subject-matter experts.
Here Scott talks with panel moderator Traci Buschner of Guttman, Buschner & Brooks about her panel's topic — the ethical questions that may arise during FCA litigation.
This video interview by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on January 14, 2019.
Qui Tam 2019 Panel Preview: Ethics
» Click here for registration and full details on Qui Tam 2019
(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: [Addressing camera] Hi, it’s Scott Oswald, chair of the Qui Tam Section of the Federal Bar Association, and we are here today with Traci Buschner.
Traci is a partner at Guttman, Buschner and Brooks in the District [of Columbia]. She is moderating a panel at this year’s annual conference on February 28 and March 1, 2019, on ethics in qui tam matters.
Traci, give us a sense of both our panelists and, maybe, a little something that we can expect. If I’m in the audience and I’m attending the panel, what can I expect to see?
Traci L. Buschner: Thanks Scott. I’m really happy to be chairing the ethics panel this year. Last year I was on a panel about qui tam settlements with some other lawyers, and we had a really good time. So I’m really excited this year about handling the ethics part of it.
The panelists that we have set up are some really fascinating people who have a lot of experience. I think [they’ll] bring a broad knowledge base to the panel, and hopefully we will be able to interact: That’s what we’re planning for our panel, is to have an interactive discussion about ethics.
Some of the panelists we have are David Wiseman, who is a senior person in the [Department of Justice’s] commercial litigation department. He actually has a very interesting job at DOJ — he’s an ethics, or professional responsibility officer within DOJ, so he’ll bring some of the more sticky problems that DOJ has to deal with. He has to help the lawyers over there navigate those problems.
And then we have Precious Gittens, who’s at Hooper, Lundy & Bookman. She’s a defense lawyer, but [also was] a longtime Assistant U.S. Attorney for the District of Columbia, and has a fabulous background doing white-collar criminal defense. I think she’ll give us a lot of information about the inside of qui tam cases, especially where there’s a parallel criminal investigation.
And then we have Kathleen Clark, who’s at the Washington University Law School in St. Louis, and whose area is professional responsibility. She has a very rich background as well. She served [as counsel for] the Senate Judiciary Committee, has been a former [judicial] clerk, and has written pretty extensively in the whistleblower area, especially on ethics.
So that’s our panel. And what we have decided to do is a short fact pattern that will present problems for the relator, for the defense, and for the government. We will question the audience and get their feedback as to how these problems can be resolved — so we’re looking forward to that and we think it might be kind of fun …
Oswald: So if I’m in the audience —
Buschner: … or as fun as ethics can be. [Laughs.]
Oswald: So if I’m in the audience, I can expect to play a role?
Buschner: Yes, we’re thinking that it will involve some sort of way that you can — I think it’s an electronic system we’re going to try to use, where you can cast your vote for an A, B or C answer. And then we will discuss those.
Oswald: So I know one of the topics that relator’s counsel deal with all the time, that’s an ethics issue, is cases that are under seal.
Oswald: And so we have our case under seal, and maybe there’s an inquiry of some sort — or maybe there’s another filing we want to make with a different agency. How do we deal that with that from an ethics standpoint?
Buschner: Right. So the statute itself requires the relator to seal the case when it is filed. Although the federal statute requires sealing for 60 days, they often become sealed for much longer, as we know, because the government needs more time to investigate.
So during that time, the relator sometimes can get more information; they can decide, perhaps, that maybe another government entity might be involved, a state or local government; [or] sometimes the information is the subject of a congressional inquiry.
Would the judge consider a disclosure to an agency or to Congress to be a violation? I think you always have to think about that, even if the likelihood of the information being disclosed to, say, the press, or to third parties, or to the public at large, might be very small. I mean you’re the one who will be disclosing this information — and [you] will be on the hook if something happens.
I think one of the ways that you can solve that issue is to go to the government and seek their guidance. We have done so in the past, and normally the U.S. Department of Justice will have some way to solve that problem whereby you will be covered and your client will be covered.
Oswald: And I’m hearing from you to do that before …
Buschner: [Laughs] Before, yes!
Oswald: [Laughs] Before the fact?
Buschner: Before you think about, yes, disclosing it.
And always think, you know, you have to be super careful. So even if it’s like a new state, or whatever, I think you have to go through that thought process of, “What does the seal say, what are the particular words?” At least letting the government know — [because] if the government has a problem with it, they’re the real party in interest.
And if you have to go [before] the judge, then you want the DOJ on your side saying, “Yes, we knew this was going to occur, yes, we agreed with this,” or “Yes, we took these particular precautions” so that the information wouldn’t become unsealed or to known to others who are not supposed to know the information.
Oswald: Tracy, thank you.
Buschner: You’re welcome!
Oswald: [Addressing camera] And we want to invite all of you to this year’s Qui Tam Conference. It is on February 28 and March 1, 2019. We look forward to seeing you there.