Thank you everyone, great questions!! Someone is blowing the whistle and I have to go...

My short bio: Stephen M. Kohn started representing whistleblowers as the Director of Corporate Litigation for the Government Accountability Project in 1984. In 1988, he co-founded the National Whistleblower Center and has provided expert testimony before the United States Congress in policy and legislative hearings for 25 years. He is currently a partner in the Washington, D.C. law firm of Kohn, Kohn & Colapinto, which has exclusively represented whistleblowers for nearly 30 years and is recognized as the nation’s leading law firm for whistleblower protection. The firm has a strong international reputation and has made presentations to leading government officials and whistleblower organizations around the globe.

Kohn has authored and published numerous books and law journal articles on whistleblowing and has been seen in national media outlets, including but not limited to, ABC World News, TODAY, 60 Minutes, Nightline, The O'Reilly Factor, Larry King Live, Washington Journal, MSNBC’s Hardball, C-SPAN’s Close-up, The Washington Post, NPR, The Guardian, BBC World News, Primetime Live, and CNN World News. The third edition of The Whistleblower's Handbook is forthcoming.

My Proof: https://twitter.com/stopfraud

Comments: 113 • Responses: 43  • Date: 

SuaveMF21 karma

Greetings. Fellow attorney here in a partnership firm who started handling qui tam cases. A few questions please: (1) Most common misconception about attorneys? (2) Did Linda Tripp ever regret her decisions? (3) Ever had depositions with a belligerent party? If so, explain. (4) What do you think about the Moody Blues? (5) Should there be Tort reform? (6) Advise for people contemplating attending law school in today's economy? (7) Do you feel the current administration in the executive and legislative branches are being transparent/truthful? (8) How do you get potential clients to trust you enough so they don't fear coming forward? Ever have to protect clients with security? (9) Most egregious story that came out of a whistleblower? (10) Most interesting story of an individual/entity who went beyond legal and ethical means to intimidate, slander, or silence a potential whistleblower from coming out with information? - Thanks!

smkohn28 karma

1) The most common misconception about attorneys is that a lawyer understands the complexities of whistleblower laws. The second is skepticism or hostility when a lawyer gives appropriate advice to settle a claim.

2) Attorney-client privileged as to Linda Tripp's communications with my office. However, given the level of misunderstanding as to her motives and conduct, and the effectiveness of the "smear campaign" waged against her and which hurt her and her family, I would be fully appreciative of any of her concerns regarding whistleblowing. However, what is lost in all the stereotypes and the media sensation, is the fact that a sitting president did not tell the truth in a sexual harassment case and the plaintiff in that case was denied due process. But for, the truthful testimony of Ms. Tripp, justice would not have been served in a major sexual harassment case with national implications. It takes courage to blow the whistle, but when you're blowing the whistle on the most powerful person in the United States with the most effective public relations apparatus, and you are an individual civil servant without access to the levers of power, blowing the whistle takes extraordinary courage. What Linda Tripp went through, and the difficult choices she faced, was lost in the political controversy and partisanship that flowed from her truthful disclosures.

3) Yes... Sometimes the lawyers for the defense full the belligerency and at that point they're to be ignored, or the deposition cancelled until the matter can be resolved. If the deponent is belligerent, that usually backfires and results in statements against interest. When the deponent responds emotionally, attacking my client, for having raised allegations, it's a good day.

4) I particularly like their song "Nights in White Satin."

5) No. Tort reform is a code word for diminishing the rights of victims of often horrendous misconduct or negligence.

6) I still recommend law school and am even trying to push my children to attend. The study of law helps to understand the workings of civil society in a wide variety of contexts and the development of the common law and the law related to the civil liberties and the civil rights of the people is worthy of deep appreciation and study, regardless of where one's career may ultimately end.

7) No... but, what else is new? That is why I like the practice of law where the pursuit of truth is at premium more than the practice of politics which is public opinion driven.

8) First, by having a reputation of aggressively representing whistleblowers for over 30 years. Second, by giving them and honest opinion about their case, regardless of how they may react. I see those communications almost like a doctor. The patient has cancer, it's terminal, that's the diagnoses. Promising "quack" medicine that's available in Mexico achieves nothing...

9) The Swiss banking scandals. There have been tens of thousands of US millionaires and billionaires who have hidden trillions of dollars of wealth that has increased the tax burden on the average American. This has harmed the economy. The extent of these harms is mind boggling. Furthermore, the vast majority of illegal secret bank accounts held in Switzerland and other countries comes from other nations and are often the result of illegal activities. This multi-trillion dollar network of illegal monies is an albatross around the neck of developing democracies, poor nations, and efforts to secure economic justice.

10) See the Linda Tripp case. Beyond the unrelating public relations attacks is the fact that high ranking government officials went into her strictly confidential, security clearance files, to find embarrassing information, and then leaked that information to reporters who profited from these willful, intentional, and criminal violations of the privacy act.

SuaveMF5 karma

Awesome answers!! Thanks for taking the time to answer my questions thoroughly and for the quick response. Best wishes!

smkohn9 karma

Thank you.

TheTr00per1 karma

Whats an albatross around the neck? mean.

smkohn8 karma

What it means is, the corruption that exists in many nations destroys democratic institutions and economic prosperity. The Secretary General of the United Nations, in introducing the UN Convention Against Corruption, (for which the USA is a signatory) said it best: "Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life, and allows organized crime, terrorism and other threats to human security to flourish."

Ficon15 karma

Mr. Kohn, Thanks for being here! Question 1: Have you ever had a whistleblower come to you with information you had to turn away due to the gravity of what they were telling you?

Second question: Have you ever represented a whistleblower that was uncovering something that went against your personal opinion or beliefs (thinking it should stay private)? If so, how did it affect you?

smkohn23 karma

1) No. The bigger the better!

2) I have had whistleblowers who have raised concerns regarding officials whose politics would be aligned to my own. These whistleblowers could be perceived as helping one political party or another. However, I have not had difficulty representing these persons because, in my experience, the motives of a whistleblower are usually truth-driven. It is easy to take to politically endorse one party or another, it is a completely different set of behaviors which could compel an employee to risk their job or career to disclose a violation of law. So, consequently, we never take into consideration the politics of a disclosure, but focus on whether the whistleblower has credible evidence of wrongdoing. This non-partisan method of evaluating potential clients has served us well over the past 30 years.

Ficon4 karma

Thank you for the reply. It must be very difficult at times to remain politically neutral in some cases.

smkohn7 karma

Thank you.

ilovelamp312 karma

Do you feel that US laws adequately protect whistlebowers? If not, what specifically can we change?

smkohn17 karma

No. There are some laws that are extremely good and do provide real protection. These are the False Claims Act (exposing fraud in government contracting and procurement) and the Dodd-Frank Act (permits the anonymous and confidential reporting of securities and commodities fraud and foreign bribery). Additionally, to a lesser extent, the IRS whistleblower law, which authorizes rewards for original information concerning tax fraud and the underpayment of taxes also is a valuable whistleblower law. These laws place a premium on having employees disclose strong evidence of fraud. In other words, the laws require that the employee and his or her attorney weigh the sufficiency of evidence that a fraud has occurred against the risk that all whistleblowers inherently face when considering making a disclosure. Furthermore, the compensation available to the whistleblower under this law is not predicated on damages flowing from the harm the whistleblower suffers when subjected to retaliation. The law is structured in a way to try to minimize the risk of retaliation. The compensation is obtained based upon the value of the information provided to the government. Under these laws, the whistleblower is entitled to a recovery of between 10-30% of the actual sanctions recovered by the government from the wrongdoer. It's a win-win for the whistleblower and the public. The whistleblower is encouraged to come forward when they have strong evidence and the strong evidence can be used to sanction corruption and, overtime, has resulted in the recovery of tens of billions of dollars from fraudsters, back to the American taxpayers. These reward-based whistleblower laws are now viewed as the most effective anti-fraud laws in the United States, and the large recoveries obtained under these laws proves this point.

On the other hand, there are large sectors of the economy for which there are no effective whistleblower protections. This includes national security whistleblowers. This also includes other matters for which there's no federal whistleblower protection, such as, blowing the whistle on poor healthcare or campaign finance violations. We strongly believe in the enactment of a national whistleblower protection act that would close the loopholes in current protection and be modeled on the best practices in the False Claims and Dodd-Frank acts.

SithLord133 karma

blowing the whistle on poor healthcare

Can you explain what exactly you mean by that?

smkohn6 karma

There are very good whistleblower laws IF there's medicare or medicaid fraud. So, if the medical treatment impacts fraud on federal spending programs, the whistleblower would be covered under the False Claims Act and be entitled to significant monetary awards and double back pay if they suffered loss of job. On the other hand, if a nurse raises a complaint that a doctor has systemically engaged in improper conduct resulting in patient deaths, that nurse may fall outside of any federal protections and be subject to a patchwork of state laws which may or may not protect him or her. There is NO national whistleblower protection law. There are over 50 separate laws covering specific types of whistle blowing. Some of these laws such as those governing fraud in federal contracting or securities law, are very strong and have worked well. Other laws can be extremely weak or problematic. For example, whistleblowers under the Safe Drinking Water Act, who are raising concerns about their company polluting a river that may threaten drinking water, have federal whistleblower protection. But that law has a ridiculously short 30 day statute of limitations, which can result in the dismissal of otherwise very strong cases. In my handbook, the chapter describing this patchwork of legislation is appropriately entitled, "Understand the Maze."

WurdSmyth3 karma

As a Medicare rep, it is my understanding that I could receive a portion of the reported fraud as compensation under the whistle blower act. Any truth to this?

smkohn6 karma

Absolutely, yes. The US government has paid hundreds of millions of dollars in rewards to whistleblowers for reporting medicare and medicaid fraud. The law governing these rights is the False Claims Act, originally passed by Abraham Lincoln during the Civil War and modernized by the tireless efforts of Senator Charles Grassley.

Bored_Office_Girl9 karma

Is it legal for FIFA to impose a lifetime ban on former member and whistle blower, Chuck Blazer?

smkohn3 karma

This is a case specific question and I would need to know much more about the facts to even begin to render an opinion. However, the laws prohibiting foreign bribery can now be used by both US citizens and foreign nationals to qualify for monetary rewards for bribes paid in foreign countries that are prohibited under the Foreign Corrupt Practices Act. My strongest advice to all potential FIFA whistleblowers is to understand how they may be covered under the US Foreign Corrupt Practices Act and attempt to formulate a case under that law.

Tirty88 karma

How do your clients survive financially when whistleblowing? For example, I whistle blow on company X, they fire me, and then get into a lawsuit that takes years (with the possibility of losing). What am I supposed to do in the meantime? I fear that it may just be in my best interests to not speak up.

smkohn7 karma

How right you are... And it is for this reason that overwhelming majority of employees who witness fraud and wrongdoing never report it to the proper authorities. It is for this very sound and logical reasons you present that corruption can be profitable and ripping off the taxpayer a cottage industry.

This is why the new anti-fraud whistleblower laws are so important. They are structured in a way that permits the whistleblower to keep their identity secret so they do not get fired. And they shift the focus of the law on rewarding high quality information about fraud or illegal conduct. Safe channels have been created in which a whistleblower can anonymously report their concerns to the government, and if their allegations are proven correct, and if the government obtains monetary sanctions from the wrongdoer, the whistleblower can obtain a monetary reward.

These new laws, which cover only a small part of all whistleblowing, were designed in recognition of the failure of tradition anti-retalitation laws to provide protection. It is simply unrealistic to expect employees to sacrifice their careers and financial well-being, as you described. This is why it is so important for the public to strongly advocate on behalf of whistleblower reward laws that permit confidential reporting.

TDeFranco7 karma

Which area of the law do you think is in most dire need of reform to provide more protection to whistleblowers?

smkohn12 karma

National security. In 1978, Congress excluded various intelligence agencies, such as the NSA, from the newly enacted whistleblower protection act that covered other federal employees. Thus, employees in intelligence related areas of the government have lacked adequate protections, and their employing agencies have had no incentive to create adequate whistleblower protection procedures.

SmartAsinine7 karma

Why isn't Edward Snowden considered a whistleblower. What provisions in the law could be used to protect him from proscecution?

smkohn10 karma

Should Mr. Snowden return to the United States, I believe he should wage a vigorous defense based upon the First Amendment of the Constitution. This would require the courts to weigh the importance of his allegations against the governments legitimate needs. Furthermore, because he exposed potential perjury to Congress, he should be protected under the laws that cover those types of disclosures. Unfortunately, these existing protections would be vigorously resisted by the Justice Department, and given the current political reality, courts, most likely, would not grant Mr. Snowden adequate whistleblower protection.

finlayson16 karma

Greetings Mr. Kohn:

Thank you for this AMA.

There are many times where i feel the process of law cannot be trusted to protect the little guy. "Obama's war on whistleblowers" is a common term. You can look it up.

Now, Mr. Holder has returned to his Wall Street defense firm, after a brief hiatus as Attorney General of the United States. This week, Salon Magazine did a piece on it: http://www.salon.com/2015/07/07/why_eric_holders_new_job_is_an_insult_to_the_american_public/

Other media articles say Mr. Holder's main job was to run cover for Wall Street in the biggest financial scams we have read about in the newspapers.

What bothers me most is Mr. Holder's irregular statement last week that Snowden might be a legitimate whistleblower (it took the current Attorney General about 5 seconds to say "no" to this idea), and similar statements to cover his ass on the whistleblower topic. Why do you think Holder is trying to be pro-whistleblower all of a sudden? He had time to "walk the walk" when he was in government. it doesn't smell right. How are the powerful held to account if Mr. Holder does have a whistleblower skeleton in his closet of some kind, and he is trying to use misdirection? Holder was the one who said banks were too big to fail (above the law). No one challenged him on that. And Holder is acting like he's untouchable. He's not at all concerned about the United States public's perception of his career moves. The law cowers under this guy's feet, and the media says there are "high-fives" all around his office.

Is it really possible for Holder to be subject to the laws the way that you and I are? Thoughts on the USDOJ and their "high-five" triumphalism?

smkohn4 karma

We were very disappointed when Holder continued the Bush era prosecution of Bradley Birkenfeld and failed to take any steps to have him released from prison or obtain a pardon. The record clearly demonstrated the Mr. Birkenfeld was a true American hero, and the fact that the IRS paid him the whistleblower reward ever given to a single individual speaks for itself as to his contributions to the public interest.

That said, it is hard to place the blame on Holder as the anti-whistleblower culture within the DOJ has been strong since I started practicing law 30 years ago. But all is not negative. We have seen some departments in the justice department, especially those involved in prosecuting False Claims Act violations, become more responsive and sympathetic towards whistleblowers. We have also now witnessed in the Securities and Exchange Commission, the creation of the best ever whistleblower office that from our experience is doing an important job and recognizes the important contributions of whistleblowers.

Change is never easy and it's incumbent upon the American public to continue pushing the justice department as hard as possible to change its anti-whistleblower culture. A great place to start is demanding that the DOJ fully recognize the contributions Mr. Snowden's disclosures had toward reforming the Patriot Act and protecting the constitutional rights of Americans.

wktay6 karma

Why is it that these politicians think that they can put whistle blowers in jail when they are exposing corruption and fraud?

smkohn7 karma

Those who want to cover up crimes will always use their positions of power to try to destroy whistleblowers. Be it using criminal laws or taking adverse employment action. This is why understanding the laws that govern whistleblowing is key. The case of Bradley Birkenfeld, the Swiss bank whistleblower who exposed billions in fraud and triggered the largest fraud prosecutions in world history, exemplifies this point. When Brad first went to the US government, he didn't go to the IRS Tax Fraud Whistleblower Office. Instead he made disclosures to prosecutors who were under no legal obligation to protect him, and instead prosecuted him based upon the information he provided as a whistleblower. Going to DOJ had catastrophic impact on Mr. Birkenfeld. However, when we took over his case, we made sure all his information was properly given to the IRS whistleblower office under the tax whistleblower law. The IRS whistleblower office correctly acknowledged the importance of his disclosures and understood how the information he gave the United States was instrumental in the recovery of billions of dollars from tax cheats who have illegal accounts in Switzerland. Thereafter, under the tax whistleblower law, Brad was given a monetary award of $104 million dollars.

This case explains in gory detail, why whistleblowers MUST understand their rights. Simply doing the right thing is NOT enough. The way you blow the whistle can result in your persecution or in obtaining a financial reward. Until the United States government changes its hostile attitude towards whistleblowers, it is incumbent upon any person disclosing fraud or illegalities to make sure they blow the whistle in the appropriate manner.

tidja3 karma

Yes, it seems that whistleblowers often receive unfair treatment.

The circumstance that I have seen is that whistleblowers will get into legal trouble for possessing "stolen documents". If I draw up plans to rob a bank, and a second party gives those plans to the police, can I really turn around and prosecute this second party for "stealing my documents"??

smkohn3 karma

In the Whistleblower's Handbook, I have an entire chapter entitled, "Cautiously Use Self-Help Tactics." Believe it or not, there's some very good case law about removing documents and whether or not that should happen. Stealing documents from work can land you in big trouble... But there still is room for legitimate whistleblowing if it's done within the bounds of established legal precedent.

wktay1 karma

What should have Edward Snowden done differently?

smkohn2 karma

Edward Snowden was in a difficult position and it is easy to second guess his ultimate course of action. But, we always look at two potential safe avenues for making a disclosure. The first is to Congress because of constitutional protections. The second is to file with official law enforcement agencies, such as the DOJ. Under the obstruction of justice laws, every person has the right to communicate evidence of possible violations of federal law to federal law enforcement agencies. The information provided must be truthful. Had Mr. Snowden chosen to make a report to Congress or to the Justice Department, the public may never have learned of his concerns.

x_stickman_x6 karma

If someone wanted to become a whistle blower, what steps would you recommend taking before hand?

I noticed that in one of your other comments you said that laws don't really protect whistle blowers in national security. Is there any way for these people to protect themselves other than leaving the country?

smkohn3 karma

Before blowing the whistle, it is absolutely imperative to research the laws that may protect your disclosures to ensure that how you blow the whistle will have the maximum legal protection. The key issues here are what you say and who you say it to. Making the proper disclosure to the proper person can make all the difference as to whether you are fired with no remedy or you may qualify for a multi-million dollar reward.

Even in the area of national security, this makes a big difference. Although Congress excluded national security from the whistleblower protection act governing federal employees, the US constitution provides protection for all government whistleblowers under the First Amendments Freedom of Speech clause. In particular, the right to petition Congress can be used as an opening to argue that national security whistleblowers can make a lawful disclosure to Congress.

HumboldtBlue5 karma

How on earth was Linda Tripp a whiseltblower? From all accounts she was a meddling, nosy, asshole who colluded to expose a blowjob that then turned into a witch hint against a young woman, why are you championing her repulsive ass as some sort of virtuous actor?

smkohn12 karma

What is lost in the partisanship that surrounded Linda Tripp's disclosures is the simple fact that there was a federal legal ongoing proceeding for which all persons involved were required to testify truthfully. That would include the president of the United States. When a person has direct evidence that false statements were made by a witness in a federal proceeding, it is their duty to step forward to ensure there is no miscarriage of justice. Those who blame Linda Tripp for the scandals that followed her disclosures should take heed of the simple statement made by Samuel Beckett in his play "Waiting for Godot:" to paraphrase, "just like man, blaming the shoes for the faults of the feet." My own assessment of the case, which is not relevant to the actions of Ms. Tripp, is as follows... The US Supreme Court ruled, I believe unanimously and correctly, that a sitting president is not above the law and would have to respond to allegations made in a properly filed civil rights lawsuit. It would have been my recommendation to the president at that time to settle the lawsuit in the interests of the country, as it benefits no one for the president to be distracted by litigation while trying to run the country. Instead, the president hired an extremely aggressive attorney and attempted to wage a "scorched earth" type of defense. This was a terrible mistake. I would never have permitted a sitting president to be deposed, let alone to commit perjury in said deposition. The American public would have fully understood why the case was settled in order to avoid those circumstances. But once the president went down the road of aggressive litigation, the Pandora's Box that often underlies litigation, was opened. There were no winners, except that the plaintiff in that case was ultimately able to receive a settlement and that false testimony was sanctioned by the court.

HumboldtBlue-7 karma

No no no, Tripp was the cause of the investigation, she didn't blow the whistle afterwards, it was her nosy, nasty dealings including the illegal recording of private phone calls that led to an investigation about a blowjob. She's no whistleblower any more than you or me and there is no partisanship here, she's vile, shitty human being who ruined the life of a 20-year old woman for petty political reasons. So why again is she considered a whistleblower?

smkohn22 karma

Thank you for your comments. I don't think we'll reach an agreement today on this issue. Perhaps in the future.

Lutheritus3 karma

What is your opinion on Ag-Gag laws that seem to be being passed lately? Do you think it's a direct attempt to muzzle potential whistleblowers?

smkohn4 karma

Gag laws are an attempt to muzzle whistleblowers. But they can be successfully fought. The first case of national impact we litigated found a non-disclosure requirement in a private settlement agreement to be void and illegal. Just recently, my firm challenged a gag order imposed by Kellogg Brown & Root designed to muzzle whistleblowers exposing their fraud during the war in Iraq. This year, the Securities and Exchange Commission agreed with our complaint and fined KBR for this gag order. At the end of the day, it is a fundamental human right for every person to expose crime to the appropriate authorities. And any contract, law, or procedure that interferes with this right is void under our constitution and obstruction of justice statutes. Period. If you have been forced to sign a gag order, call my office.

LDM953 karma

How do you like your steak cooked?

smkohn5 karma

Keep it alive, I'm a veggie.

weareallthere3 karma

Can you say "whistleblower lawyer" ten times fast?

smkohn4 karma

No... Can you?

TheTr00per3 karma

Are you a whistle blower yourself? Why did you choose to become a whistle blower lawyer?

smkohn3 karma

In 1982, while in law school, I did a clerkship and had the responsibility of helping whistleblowers. I didn't even know what the term meant when I started. However, I soon discovered that whistleblowers were true American heroes and in 1982, there were very few laws protecting them and none of the laws I utilize today existed. I dedicated my entire legal career to helping whistleblowers based on these experiences from law school. Am I a whistleblower? Given the number of people and institutions gunning against us, it often feels that way... But, no, I have not suffered like many of my clients.

Geekatlrg3 karma

Mr Kohn

What percentage of your clients do it for altruistic reasons VS revenge or other reasons?

smkohn8 karma

The guiding light in evaluating a whistleblower case is the importance of the underlying allegations and the amount of proof that wrongdoing, in fact, occurred. By using this lens to evaluate a potential case, persons who are raising concerns with improper motives generally do not have the proof to back up their case. So revenge-driven clients have never been an issue. Unfortunately, the revenge seems to come from the other side... the person's whose misconduct is being exposed.

TheTr00per3 karma

How is revenge from the other side usually taken?

smkohn2 karma

Revenge is generally taken through adverse employment action and blacklisting. Outside of the US the revenge can take on a more deadly component. For example, in Bosnia I interviewed the widow of a civil servant who after reporting corruption in government contracting was murdered when his car was blown up. Based upon my interview with the widow and the civil society activists that I was working with, I concluded that he was murdered for blowing the whistle on government corruption.

mreg2153 karma

Why does it seem like whistle blowers in the end are recieveimg little to no protection from the same people they are whistle blowing in ?

smkohn3 karma

Unfortunately, in most corporations and government agencies, there's still an anti-whistleblower culture and the importance of protecting those who expose fraud, environmental violations, and other violations of law is not well understood. There has been some change, but not enough.

mreg2152 karma

so in other words if youre gonna try to whistle blow youre still fucked ?

smkohn1 karma

Unfortunately, in many cases, yes. Thus, the law that permit confidential and anonymous filing are extremely important.

Larspawn3 karma

Why is it that whistleblowers are often treated as if they're criminals? It doesn't seem like they've actually done anything wrong. What do whistleblower attornies do for their clients? Like, how do they defend their client, do they prosecute...?

smkohn3 karma

In terms of how whistleblowers are perceived, as mentioned above, hostility towards whistleblowers is still deeply embedded in corporate culture. It will take time and effort to overcome those biases. An effective and knowledgeable whistleblower attorney is absolutely key for a potential successful outcome. There are some very affective whistleblower laws. In fact, whistleblowers can obtain multi-million dollar rewards under some circumstances. So the lawyer is needed to explain your rights, explain the best methods of blowing the whistle, and to explain the potential costs and benefits. The lawyer should play a critical role in helping an employee understand the risks involved in blowing the whistle AND the potential benefits that may be involved in blowing the whistle. The ultimate decision as to whether to blow the whistle or not, can only be made by the employee and should only be made after the employee obtains sound legal advice. Because of the difficulty of obtaining such advice, I wrote the Whistleblower's Handbook.

nofanyone2 karma

If someone who was involved in the fraudulent activity, but is then terminated and reports the activity, will they be exempt from a potential reward?

smkohn2 karma

The major legal victory in Birkenfeld was affirming the principle that a participant IN a fraud can still qualify for an award. The participants are often the best source of information. The intent behind the laws, is encouraging those with good information to step forward. In this way, participants need protection. On the other hand, if you are the person who planned and initiated fraud, in other words you're the "king pin," you may fall outside of any protection. Furthermore, becoming a whistleblower does not give you immunity from any criminal prosecution for your own wrongdoing. This is why any person seeking a whistleblower award should obtain legal advice in order to avoid unanticipated adverse consequences from doing the right thing.

adonay2 karma

What do you think should be done in order to strike a balance between the public good of whistleblowing and preventing legitmate threats from terrorists and other national security concerns?

What are your opinions on wikileaks as a whistleblowing website? Aside from the legitimate values of public discussions that would have never happened where it not for such nrevalations what do you think should have been done( or should be done) to protect people such as human right activists and even other whistleblowers who found themselves in sticky and dangerous situations due to the release of such info?

smkohn3 karma

There needs to be a balance between the rights of whistleblowers and the protection of national security interests. That is where we need Congress to step in and do its job. Since 1978, it has either excluded national security whistleblowers from any protection whatsoever, or set-up procedures that only a fool would follow. In 2009, the House of Representatives enacted strong national security whistleblower protections, but they were killed in the Senate and never resurrected. What whistleblowers need is very simple, a safe and effective procedure to raise concerns, and strong and realistic protections against retaliation. Congress knows how to pass such laws, they just won't do it in the area of national security. Until they do, whistleblowers will use "self help tactics," such as going to the press, which could have adverse impact on both themselves and on national security. But I don't blame the whistleblower who is trying to do the right thing. I put the blame squarely on Congress which has failed to enact meaningful protection in this area of law.

In regard to wikileaks, they are not a whistleblower website. They are a publisher. Persons who go to wikileaks need to understand that by doing so they may be sacrificing other protections they have under law. Going to the press, which wikileaks is a part of, may be an appropriate channel, but it may not. But encouraging employees who may have strong legal protections if they blow the whistle correctly to risk imprisonment or persecution for making their disclosure to wikileaks, is highly problematic. Bottom line, know your rights before you blow the whistle. Bottom line number 2, no one should be inducing people to risk life imprisonment, or worse, without fully acknowledging that better avenues may exist to make a disclosure and that ultimately their ability to keep an informants identity confidential may be illusory.

I believe that a disclosure to wikileaks should have the same protection as any other newspaper or publication. Blowing the whistle to the press is protected under the US Constitution and under basic principles of human rights law. Those principles should apply to persons who provide information to wikileaks.

In regard to international human rights activists, the fact that most countries in the world have absolutely no whistleblower protection, in law or practice, raises other issues. For human rights activists, I would strongly suggest they look at our new website, http://www.globalwhistleblower.org, to learn about an extremely effective new law to blow the whistle on foreign bribery worldwide.

eddie19962 karma

What are your thoughts on Eric Holder's recent statements that a "possibility exists" for Edward Snowden and the U.S. government to cut a deal that would allow Snowden to return to the US? To me with the prosecutions of Thomas Drake, Stephen Kim, Jeffrey Sterling and John Kiriakou it seems unlikely.

Edit: o to e

smkohn6 karma

First, it's about time an adult entered the room and tried to figure out a reasonable resolution. The initial responses to Mr. Snowden ranged from completely immature to scandalous. The government was responding with anger, not rationality. The governments response reminded me of cases I did 30 years ago, when companies thought that whistleblowers had no rights and they could simply rape their reputations and destroy their livelihood. It should have been recognized from the very beginning that the national security agencies for which he was blowing the whistle on should have been recused from any involvement whatsoever in the response to his allegations. Instead, the government should have appointed an independent council that would have objectively weighed the public interest in having Mr. Snowden's allegations revealed against any real threat to national security and immediately attempted to reach a accommodation with Mr. Snowden that would permit his legitimate concerns to be vetted with minimum risk of exposing national secrets. Instead, the government went on an anger fueled campaign that ultimately back-fired and made the government look stupid. Furthermore, the US has carefully developed an international reputation as an open society and irresponsible crusades against legitimate whistleblowers tarnished that reputation and provide a sense of legitimacy for some of the worst anti-democratic practices committed by tyrants worldwide. It is not too late for the US government to handle the Snowden matter in a mature way and reach an appropriate resolution. I hope some sense of rationality will ultimately prevail, but I fear not...

FireFromTheWire2 karma

[deleted]

smkohn4 karma

The vast majority of whistleblowing in the US can be preformed in a lawful manner and some of these laws provide extremely effective mechanisms to report wrongdoing and protect the whistleblower. The US has made some great advances in whistleblowing. However, as you recognize, sometimes the whistleblower must contemplate an act of civil disobedience. For that, it is more important to look towards examples in history, not law, where courageous individuals have sacrificed their freedoms, and even their lives, to create the civil liberties and civil rights we cherish. Everyone in the United States should learn why Mary Dyer was hanged in Massachusetts and the impact that had on our freedoms. Everyone should read the transcript of the trial of William Penn and his associates in England, and how that case ignited so many of the rights we enjoy today. Everyone in the United States should also study the prosecution and execution of Albert Parsons in Chicago and the impact that had on the rights of the American people. Lastly, everyone should study the longterm impact the imprisonment of Eugene V. Debs during WWI had on the Supreme Court's evolution in expanding free speech rights. We take for granted the sacrifices made to obtain many of the rights we take for granted. Unfortunately for some whistleblowers, this sordid history is still too real.

Usernotfoundhere2 karma

What could you do to help Snowden if he ever came back to the U.S.?

smkohn3 karma

Mr. Snowden could be helped in three ways. (1) Create strong public pressure on the government to deal with him in a fair and rational manner. (2) Engage in constructive negotiations with the DOJ. (3) Formulate a defense based upon his First Amendment rights to blow the whistle, and his right to have exposed the fact that the US Congress was being lied to and misled.

malfane2 karma

Personal dilemma for you. My wife is currently blacklisted at work due to reporting some medical professionals covering up for a doctor by removing alcohol from his office before investigators arrived. Someone else had reported him for drinking before a surgery and some staff members came to the office and cleaned up before anyone official did. She is being shuffled around between offices while the hospital investigates but of course fears for her job. If things go badly and it most likely will, the hospital management was involved in the cover up, she will lose her job and in this area its well paying. What would her options be in a circumstance like that?

smkohn2 karma

I would recommend reviewing potential state law protections. Some states have very strong whistleblower laws, other don't... But, as mentioned earlier, this is one area where the federal government has dropped the ball. I would also recommend that she obtain an attorney NOW and not wait for the wrongful discharge notice. Learning your rights as quickly as possible and preparing a defense is essential when trying to save one's career.

garganchua2 karma

Hi Mr. KOHN, assuming you are still here

How many of your colleagues in your lawfirm handle these types of cases? Are you all specialists?

Alot of the super big companies have teams of lawyers, does that mean that multiple lawyers can serve a single client? Ever had a whistle so big you used a big team?

How profitable is being a lawyer for this sort of thing? Does the client pay alot of money or does the (accused /defendant I don't know which one but I assume both?) pay? (in Canadian Law, the loser pays for both parties)

How long is too long to blow a whistle for something illegal? Is there a maximum? If someone was to work until retirement and decides to blow the whistle then,because they were upset about being let go, would it hold up in court? Or is that just blackmail?

Thank you

smkohn2 karma

There are three active litigators, myself and my two partners. We have been doing this together for close to 30 years. Because we exclusively practice in the area of whistleblowing we have developed significant expertise and, therefore, we do not delegate to lower level attorneys and are very hands-on with all of our cases.

We have gone up against major companies that have thrown large numbers of lawyers at a single case. We have found that this often backfires because you need one to two lead attorneys who have knowledge of the entire case. In the classic David vs. Goliath scenario, the left arm of the corporate Goliath often does not know what the right arm is doing...

In US law, if the whistleblower loses a case, they do not have to pay the corporation, unless there is a finding that the claim was filed for malicious or frivolous reasons. In my 30 years of practice, I do not recall any case in which one of my clients was required to pay the attorneys fees of the company or the government agency that was sued. In the United States, there are laws that require a company that wrongfully discharges a whistleblower, to pay for all of the attorney's fees of the whistleblowers lawyer. These laws are very important and exist in almost every federal whistleblower statute. Finally, many lawyers in the US work on a "contingency." If the client loses the case, the client owes no fees to the lawyer. But if the client wins the case, the client is required to give the lawyer a percentage of those winnings.

The federal laws have a statute of limitations which set a deadline for filing a claim. So it would depend upon what you are blowing the whistle on and the laws that are involved. There is no general statute of limitations. But I would call your attention to chapter 14 of "The Whistleblower's Handbook" entitled, "Delay is Deadly." This chapter discusses some of the adverse consequences from waiting too long to file a case.

ofoot2 karma

Do you think that any flaw in government be allowed to be exposed freely(and I mean without fear of being mysteriously killed by governments or prison) by anyone if found out to prevent corruption?

smkohn2 karma

Yes, I believe that there should be a national law that provides a safe and confidential channel to report violations of law, fraud, and threats to the environment and public safety. This law should also include strict anti-retalliation provisions and provide financial rewards if the whistleblowers original information results in an actual financial recovery to the government.

unobtainer2 karma

[1] Have you had to deal with national security letters in representing whistleblower organizations? Are warrant canaries a workable and legal countermeasure?

[2] Thoughts on representing corporate whistleblowers vs. government whistleblowers? Where do you think the biggest threats to the public good are coming from these days? Has that changed over your career?

[3] How effective are devices like Anti-SLAPP statutes in protecting whistleblowers against private parties? How effective are softer deterrents like the Streisand effect?

[4] Supposing your kids had graduated from law school last year and were entering the job market without your assistance, which areas of practice would you want to see them pursuing? (For whichever reasons you consider most important.)

[5] Is there much work in DC for out-of-town lawyers with DC licenses? If you practiced elsewhere would you think it advantageous to be licensed in the District? (DC offers score waivers.)

[6] Do you ever affectionately refer to your clients as ''blowers?'

smkohn2 karma

(1) One of my clients was a supervisor in the FBI with responsibility over national security letters. He heroically blew the whistle within the FBI and fought tirelessly to stop abuses. He's efforts were extremely successful. But for reasons that may be obvious, his case is not well-known to the public. Throughout this process, he kept his job and retired in September of 2014. I am very concerned as to what the FBI has done, in regards to citizen privacy, since his retirement.

(2) The threat comes from both government and private sector. The private sector is usually the chief villain and the government, its accomplice. All too often, government officials ignore or permit corporations to improperly profit from defense contracts, sell unsafe products, and ignore the warnings that whistleblowers put forward.

(3) There is an increase in the use of SLAPP suits, and many companies are publicly discussing the benefits of filing lawsuits or counterclaims against whistleblowers. For a whistleblower to be sued by a corporation or indicted by the government, can have a catastrophic effect on their life and financial wellbeing. This is why we advocate for confidential and anonymous whistleblower procedures as the best way for a whistleblower to stay out of harms way. If the corporation doesn't know you're a whistleblower, they can't retaliate against you because they don't know who you are. Even if they know who you are, if there are channels to make disclosures confidentially, the company can't sue you on the pretext of protecting trade secrets or other confidential business information. The best laws for preventing companies from suing you, are the proper utilization of the False Claims Act (government contracting procurement and medicare/medicaid fraud), the Securities Exchange Act, the Commodity Exchange Act, the IRS Tax Whistleblower Law, and the Foreign Corrupt Practices Act.

(4) Whistleblower law. I think it's the best.

(5) DC has more lawyers employed than any other area in the country. But if you practice in DC, under the rules of professional conduct, you are required to obtain a DC license. There's work here for all lawyers. It's a "lawyer-town".

(6) No.

poontang69692 karma

Mr. Kohn, thanks for answering so many questions! I'd just like to ask, as someone in their first year of law school, do you have any advice?

smkohn2 karma

My advice would be to take your courses extremely seriously, to learn the zen of being a lawyer. It's not just understanding the cases and the rules, it's understanding the principles that underly the law. Law schools offer these opportunities to really gain an understanding of the law, but many students miss these opportunities through an obsession with taking classes designed to help you pass the bar. Use law school to become a lawyer... Take a bar course to pass the bar.

mehher1 karma

Other things you like to do when not whistleblowing? Haha

smkohn3 karma

Biking; kayaking in Chincoteague, Virginia; traveling; visiting national parks; going to anything my children let me attend...; and baseball, of course (GO NATS!)

pipsdontsqueak1 karma

Hi Mr. Kohn! I am fascinated by the work you've done. One of my professors, now retired, was very passionate about whistleblower protections and in light of recent public sector cases like Snowden and Manning, it's definitely an issue in the public consciousness.

My questions are not really related to that subject, but rather the world that new lawyers are entering. I am a new attorney and I was hoping for some advice. I know a lot of us just entering the legal field are having a tough time finding substantive legal work, me included. Many attorneys I know are doing doc review and temporary contracts. My questions are:

1) What advice do you have for young attorneys seeking to go beyond e-discovery doc review and into substantive legal work?

2) How do you think the legal market/community will look in the next 10 years?

Thank you!

smkohn1 karma

1) The area of whistleblower law is expanding and there are employment opportunities in compliance departments which often seek attorneys. Obtaining some experience or training in the area of whistleblowing may be helpful when trying to locate a job in this area. I have noticed that there are a significant number of CLE's offered in the area of whistleblowing and compliance. Additionally, as a licensed attorney you can hang up a shingle and start taking on your own cases, including whistleblower cases. The National Whistleblower Legal Defense and Education Fund has a referral service for which, as a licensed attorney, you would be eligible to join. You can check out www.whistleblowers.org for more information on the referral service.

2) Whistleblowing and compliance, I believe, is an area of growth. I can't really speak outside of that.

DaBeach1 karma

Did you rep Bradley Birkenfeld? Got 100 million then DUI'd around new hampshire

smkohn1 karma

It was a great honor to represent Mr. Birkenfeld. A true American hero whose actions have resulted in billions of dollars in recoveries and a change in the entire Swiss banking system. It is not an exaggeration to say 100 Brad Birkenfeld's could end the United States debt.

denali421 karma

Good Afternoon,

 

I work as a paralegal, but not in your field. However, I've always had an interest in the False Claims Act. What are the top three things you think a paralegal needs to know if they were to consider assisting an attorney in your particular area of practice?

smkohn2 karma

The laws governing whistleblowing are still relatively unknown, even among experienced labor lawyers. I am not teaching a class on whistleblower law at Northeastern University School of Law, and based upon my interactions with the students there, I would recommend the following three areas: 1. Gain a general understanding of the principles underlying anti-retaliation laws and the scope of coverage of the various federal whistleblower laws. 2. Specifically review the whistleblower provisions of the False Claims Act, the Dodd-Frank Act, and the Internal Revenue Code to understand the new reward provisions. 3. Review the literature and developments regarding internal corporate compliance, as most whistleblowers start by using their corporate compliance programs.

I have a syllabus to my course at Northeastern published online, which also contains links to important legal precedents. The syllabus is available at: http://www.kkc.com/whistleblower-protection-resources/resources-teaching-whistleblower-law/.

Derekl77141 karma

Have you ever been contacted by Edward snowden?

smkohn2 karma

We never discuss any communications with actual or potential clients, whether or not they ever contacted the office. We will never discuss that kind of information.