Finding Legal Help

Alaska Whistleblower Resource Guide

Finding Legal Help

Regardless of whether your whistleblowing leads to a lawsuit, a well-informed and sympathetic attorney can offer guidance throughout the process-and can help you avoid serious missteps. An attorney can help you prevent reprisals from occurring in the first place, through supervising and monitoring your disclosure through the safest channels. If retaliation is inevitable, an attorney can ensure that you are on solid legal ground by screening your disclosure to provide an expert opinion on whether it is "legally protected speech". Otherwise you may forfeit your rights: if you say too much or do not have enough corroborating evidence, what you intend as whistleblowing may not qualify for legal protection.

Be careful in choosing and working with an attorney; this is a partner on whom your professional future may depend. Remember, too, that although your attorney's legal advice is important, decisions about whether to remain silent or speak out are ultimately yours to make: it is you, not your attorney, who will live with the consequences of your choices.

Some specific tips on securing effective legal representation from GAP's handbook are provided below.

For referrals, contact groups and individuals who have experience with employment attorneys. Contact the Alaska Forum, GAP or other public interest groups for suggestions. Also, traditional sources such as the local bar association or relevant committees of the American Bar Association can help identify respected specialists. Your local public library should have a copy of the lawyer's directory, Martindale-Hubbell, which describes specialists under a variety of cross-references. When seeking referrals, ask for attorneys whose expertise is wrongful discharge. If that fails to produce an adequate list, broaden the scope to employment law.

Before even talking to a prospective lawyer, take time to summarize your story in writing. Be concise: limit yourself if possible to less than two single-spaced, typed pages and certainly less than five. Take your time preparing this document. Your case summary supplies an attorney's first impression of you and your communications skills. It also allows the attorney to test your credibility by questioning you based on your statement. Stick to the facts and avoid unnecessary rhetoric. Be sure to discuss any special circumstances you may face: whistleblowing with a government security clearance, for example, poses particular problems. Be ready to identify solid candidates as supporting witnesses and explain how they can help. Also, compile a list of relevant documents currently or potentially available. It takes a near-miracle to win without either strong supporting testimony or documentary evidence.

Remember that a primary goal of your initial interview is to build the attorney's confidence in your prospects for winning. Prospective lawyers may be wary of someone who immediately cross-examines them on too wide a range of topics: remember that the attorney needs to form an overall first impression of you. Before you get serious about signing a retainer, however, you must know where you both stand on a range of issues-so you will need to ask questions, including some of those discussed below.

Confirm that the attorney-client privilege applies to what you discuss, and check for conflicts of interest. Before sharing information, ensure that the lawyer will not reveal information without your consent. Then, even if you have confirmed the confidentiality of discussions, check for conflicts of interest. Before your introductory meeting, check the list of "representative clients" in Martindale Hubbell. (Old copies may have more complete listings.) If you see any potential conflicts of interest, ask the attorney about them before you disclose confidential information.

Learn the attorney's track record in handling cases similar to yours, such as win-loss records and significant precedents or benefits obtained for other clients. There is nothing rude about simply asking; you can also request references. Another way to gather this information is to review public court documents, such as briefs and relevant judicial decisions in similar cases that the attorney has handled.

Make clear your goals and objectives. One common reason that attorney-client relationships sour is that each entered the partnership with differing expectations. An essential step in deciding on an attorney is to know and communicate your own expectations. This includes not only matters involving the attorney's representation, but also matters concerning the larger public policy issue that triggered your whistleblowing. Legal organizations and individual attorneys vary tremendously in their values, priorities and work styles. Some lawyers, for example, will be uncomfortable if you keep speaking out publicly about your whistleblowing charges during the lawsuit. Others will support your ongoing public activism. Similarly, one firm may be appropriate for a whistleblower who wishes to settle a dispute quietly, while another would better serve a whistleblower whose goal is to have his or her day in court.

Clarify your financial burdens and options from the outset. Before meeting with a prospective attorney, find out if there is a fee for the initial consultation, and if so, what it is. If you do not ask, you may find yourself unable to afford up to four-figure composite bills incurred in your effort to make an informed choice. Once you establish a relationship with an attorney, be sure to discuss and agree on your financial obligations-and then meet them.

Clarify time commitments. Find out how much time the attorney has and will commit to. At the same time, determine how much time and effort the attorney expects from you as a participant in preparing your case. Some attorneys prefer their clients to be functional partners, while others view the same client initiatives as interference.

Get a commitment on how much notice you will receive of developments, information and decisions that make a difference for your case. It can be poison for a working relationship and fatally undermine a client's rights if an attorney withholds key developments. On the other hand, it is unrealistic to expect a lawyer to do his or her job if s/he must review daily developments with each client. Facilitate a relationship of trust that you both can count on by establishing this balance up front.

Pin down your role in any settlement negotiations. The great majority of cases settle before trial. Request advance notice of proposals before they are made or of offers from the other side before any response is issued, and pin down the attorney's willingness to respect your authority as the final decisionmaker in the settlement. A client is in a position of comparative weakness if an attorney threatens to quit unless settlement terms are accepted on the eve of trial. Remember, though, that your lawyer is the partner on your team with unique expertise. Most of us have an unrealistic expectation of what we deserve to achieve in a settlement, which is-by definition-a compromise in which both parties will be partially disappointed.

When you sign a retainer agreement, remember that it is a contract. Read the terms carefully to make sure they reflect any informal agreements reached on items listed above or from your own checklist. If you don't understand a term, ask the attorney to explain it and to replace the "legalese" with an English translation you understand. If the attorney balks, consider that a warning.

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