It’s only natural for potential whistleblowers to wonder who is responsible for an FCA attorney’s fees and expenses. In short:
- Most False Claims Act lawyers work on a contingency basis—they only get paid if the case succeeds.
- The whistleblower receives a percentage of the government’s recovery, and the lawyer’s fee is taken as a percentage of that share.
- The FCA also permits attorneys to recover hourly fees and costs directly from the defendants.
- Be cautious of lawyers who expect you to pay part of their hourly fees from your recovery.
If you’re considering an FCA lawsuit in the United States, two common concerns are: Who pays the lawyer if I win? and Who pays the lawyer if I lose? Let’s break this down with our Atlanta whistleblower attorneys.
Contingency Fees Are the Norm
FCA cases are high-risk and expensive when it comes to the attorneys’ fees and costs. Most private citizens can’t afford to pay hourly rates to litigate against powerful defendants such as hospitals, defense contractors, or pharmaceutical companies.
For this reason, most firms—including ours—take cases on a contingency fee basis. This means we advance our time and costs, and only get paid if the case is successful.
When the government recovers money, the whistleblower (called the “relator”) is awarded a percentage. If the government intervenes, the relator’s share is 15–25%. If it declines and the whistleblower proceeds alone, the share increases to 25–30%.
Example: if the government does not decline to intervene and settles for $1 million, and the relator’s share is 20%, the whistleblower gets $200,000. The lawyer then receives the agreed-upon percentage of that share as their fee.
Statutory Fee-Shifting
The FCA is a fee-shifting statute. In addition to the contingency fee from your award, your False Claims Act lawyer may seek reimbursement of reasonable fees and expenses from the defendant.
Normally, under the “American Rule,” each side pays its own lawyers. But under the FCA, a successful whistleblower can require the losing defendant to pay legal fees and litigation costs. This protects clients from having their share eaten away by mounting expenses.
What If Multiple Lawyers Are Needed?
Large defendants often hire massive legal teams. Smaller FCA firms may bring in co-counsel for additional firepower. This generally does not cost the whistleblower extra—co-counsel usually shares the same contingency fee structure and can also recover statutory fees from the defendant.
So even if multiple attorneys are working your case, your recovery isn’t reduced.
Hybrid Arrangements: Rare and Risky
Some firms offer hybrid agreements, where clients pay hourly fees in exchange for a reduced contingency percentage. While this might sound appealing, it’s risky. FCA cases can take years and generate millions in fees. Because cases are filed under seal, you could unknowingly invest in a case that ultimately benefits another whistleblower who filed first.
Hybrid agreements may also strain the client–lawyer relationship if fees outpace the recovery. For this reason, most firms (including ours) don’t recommend them.
Beware of Fee-Priority Clauses
It’s crucial to understand that contingency fees (paid from your award) and statutory fees (paid by the defendant) are separate. Some firms insert language in their contracts prioritizing attorney fees over the whistleblower’s recovery. In a worst-case scenario, this could leave the whistleblower with little or nothing.
Such provisions can create serious conflicts of interest. Whistleblowers should choose firms with clear, client-focused agreements that ensure their bravery is fairly rewarded.
What Are the Other Whistleblower Statutes?
Not all whistleblower programs mirror the FCA. IRS and SEC whistleblower laws, for example, are not fee-shifting. Only the government can litigate those cases, so lawyers are typically paid through contingency or hourly fees rather than statutory recovery.
Still, experienced representation is vital to properly present claims and maximize potential rewards.
Choose Transparency and Trust
Filing a False Claims Act case is a long, difficult process. Your relationship with your attorney may last years, so clarity about payment is essential from the start.
At Bracker & Marcus LLC, we believe in straightforward contingency agreements and full transparency. If you’re ready to discuss your case, contact our Atlanta FCA attorneys for a free evaluation.