Construction OberView: "Objection, Privilege": Protecting the Attorney-Client Relationship amidst the Shifting Sands of False Claims Act Jurisprudence

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“Men must turn square corners when they deal with the Government.” – Justice Oliver Wendell Holmes, Jr.

With the Government’s prosecution of False Claims Act (“FCA”) and Contract Disputes Act (“CDA”) violations on the rise, it is vitally important for outside and inside counsel to consider the role that legal advice plays in the daily business activities of clients. Legal advice used by the client in furtherance of violation of a crime is generally not privileged. In addition, both in-house and outside counsel need to avoid assisting in the commission of a crime or fraud through their roles as counsel, in that the consequences could include direct criminal and civil liability for the involved lawyer.

The Relevant Statutes

Government contractors and others may be prosecuted for false claims under the civil FCA, 31 U.S.C. §3729(a)(1)-(7), or the criminal false claims statute, 18 U.S.C. §287. The civil and criminal statutes have different burdens of proof and elements making the civil FCA the weapon of choice for most federal false claims cases....

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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