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Qui Tam 2020 is the third 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 discusses ethical considerations under the False Claims Act with Michael E. Paulhus of King & Spalding LLP, who'll moderate a panel on the topic on Day Two of the conference.
This video interview by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on February 17, 2020.
“Qui Tam 2020” Panel Preview: Ethical Considerations under the False Claims Act
» Click here for registration and full details on Qui Tam 2020
(Transcribed and edited lightly by The Employment Law Group)
R. Scott Oswald: [Addressing camera] Welcome, everyone. We are here with Mike Paulhus, who is a partner at King & Spalding’s Atlanta office.
[Turning to Paulhus] And Mike, tell us about your panel at this year’s Qui Tam Conference. It’s on ethics.
Michael E. Paulhus: It is! So we’re pulling together a panel. I’m going to have the defense bar’s perspective. We have Jennifer Verkamp, who’s going to join us and provide the whistleblower perspective. And then we have a surprise guest, soon to be determined. We’ve invited someone from Civil Frauds [at the U.S. Department of Justice], who we think will be an excellent addition. So we’ll have a government perspective on the panel as well.
We’ll cover a swath of topics but we’re going to be pivoting for everyone in the audience to have a perspective from where they’re coming from. So you’ll hear the relator’s perspective, the government perspective, and the defense bar’s perspective.
Oswald: And that’s so important because you know get siloed — especially under the False Claims Act, where these cases are under seal for so very long. We sometimes don’t realize what’s going on on the other side. What are the common ethical issues that we might cover at least a little bit in the panel?
Paulhus: Sure. Well, one thing that was part of the genesis of this program is, Jennifer and I were on a panel last year at the [conference] relating to mediation and settlement. The most interesting [debate] — and it wasn’t contentious, it was it was contentious in a fun way, we were exploring a dialogue — was about settlement quandaries.
So, for example: Defense counsel putting a bundled settlement offer on the table and hearing back from Jennifer, “That creates serious ethical quandaries for me.” She’s saying, “I’ve got to figure out how much to recommend to my client for the retaliation claim versus attorney fees.” And then [I’m] explaining, from my client’s perspective, “Money is fungible — I don’t really care how you allocate it.”
And so we’re having this really good dialogue about, How does that affect the ethics of going through settlements in these cases that have all these different permutations of the government piece, and the relator piece, and the attorney fee piece, and how different ethical quandaries can arise.
Oswald: Just from the relator side, one of the debates we have is when to [name] individuals —
Oswald: — [as defendants] in a complaint. My guess is that, for us, we might look at that very differently [than] defense counsel, who might have a whole host of ethical issues that come up, right?
Paulhus: Well, exactly. And that’s something that we’re going to talk about at some length on the panel, and that’s a particular defense bar issue, right? When can I have a joint client? When should I have a joint client? How do I plan ahead if there is a separation between the company and the individual? Especially if you have an individual named, I might have a different perspective — or, if the individual who’s maybe in harm’s way is a much more junior person, then I might be able to work with that person. So there’s a lot of ethical issues that you’re dealing with on the defense side.
Also, appreciating the Upjohn warning; and why do we give Upjohn warnings; and why are we trying to make sure people understand who’s their lawyer; and how you can trip into a representation if you’re not being thoughtful about it. Those issues are even more important as we have had the focus of individual accountability that DOJ has been focused on [lately].
Oswald: And so for our government lawyers — and there are a lot of them that’ll be in the audience — maybe understanding the unique ethical issues that each side has in their cases: That might give a window into what to do, and what not to do, even from a government perspective?
Paulhus: Absolutely. I have dialogues with government lawyers at times where I’m trying to explain. And sometimes it can get lost — the back end implications of pursuing individuals, and why I need a release for individuals, and the fact that we may well be obligated to indemnify individuals. So you can say you need an individual payment for an individual, but we may have statutory or contractual obligations to indemnify that individual. So we may get to the same place, [but] we get some interesting interactions where it’s enjoyable to have that dialogue with the government folks to explain, you know, in my world, the business rationale that we’ve got to sort through, and the ethical implications of me representing or working on behalf of that individual.
Oswald: So last year we had interactive software that we used to get folks in the audience into the panel. Anything like that this year?
Paulhus: Absolutely. We’re planning to do that. It’s an interactive — you can use your smartphone and we’re going to bake in questions, and hopefully we’ll be able to project on the screen how people are responding to the specific questions to really make it interactive.
Oswald: It sounds terrific.
Paulhus: Yeah, absolutely, it’ll be fun.
Oswald: Tell us a little bit about yourself. Lawyers are people, too. Other than faith and family, give us a sense: What’s your passion? What gets you up in the morning?
Paulhus: Sure. Well, I’m passionate about the arts. I sit on the board of the Atlanta Opera in Atlanta. I guess there’s a certain performance art to being a lawyer and standing up in court, so I like to see other people perform. That’s where I spend a good bit of my time.
Oswald: Mike, thank you.
Oswald: [Turning to camera] And we look forward to seeing each of you on February 27-28,  here in Washington. To register, you can find us at fedbar.org.
NOTE: Since this interview was recorded, Mr. Paulhus’ panel has added its government representative — David Wiseman, assistant director of the Civil Fraud Section at the U.S. Department of Justice.