How Many Lawyers Are Involved in Prosecuting False Claims Act Cases?
Today, Labor Day, is an appropriate moment to review the work required and resources deployed to handle major fraud cases, such as those filed under the False Claims Act. Since a False Claims Act case is a filing with a court, we are going to analyze the number of lawyers involved in prosecuting False Claims Act cases.
A whistleblower needs private counsel to proceed with a False Claims Act case. In addition, the government assigns at least two lawyers, one from the Civil Division of the Justice Department and a lawyer from one of the 94 US Attorney’s offices in which the case is filed to each False Claims Act case. It is also Justice Department policy that the initial filing of any such case be reviewed for criminal conduct, which means another government lawyer must at least review it.
The largest group of government lawyers charged with handling fraud litigation including cases filed under the False Claims Act, is the Department of Justice (DOJ) Civil Division, and in FY 2021 the DOJ had funding for 866 Attorneys in that Division. [1] However, the Civil Division reports that 88% of its caseload involves “defensive litigation,” when the government must respond to a suit. [2] The vast minority of the Civil Division’s case load, therefore involves the affirmative litigation, such as prosecuting civil fraud cases including False Claims Act matters. In addition, the Civil Division reports its workload is becoming increasingly burdensome as “…cases continue to grow in size, scope and complexity in all aspects of the law.” [3]
As to major criminal fraud cases, DOJ has a Criminal Fraud Section with three sub-divisions. There’s a group to handle Foreign Corrupt Practices Act cases, with 39 prosecutors, the Health Care Fraud unit with 80 prosecutors and the Market Integrity and Major Frauds Unit with 42 prosecutors.[4] That’s approximately 161 lawyers, give or take a few managers and administrators, to handle criminal prosecutions of major fraud involving everything from health care to bribing foreign governments.
The Justice Department also encompasses 94 U.S. Attorney’s offices throughout the country. These offices must handle a wide range of responsibilities. Generally at least one lawyer from one of the offices is assigned to a False Claims Act case filed in the jurisdiction. The Department says the US Attorneys work:
…includes cases involving international and domestic terrorism; targeted violence; illegal immigration; southwest border enforcement; violent crime; drug enforcement; opioid enforcement; firearms; gang prosecutions; transnational organized crime; Indian Country prosecutions; cybercrime prosecutions; human trafficking; and complex and multijurisdictional white collar crimes, including health care fraud, identity theft, public corruption, corporate fraud, and investment fraud. The USAs will also continue to collect both criminal and civil debt.[5]
The Department does not specify how many of these lawyers are working on fraud cases, but does report the US Attorneys will need more resources to fight fraud in the future stating:
The USAs expect the workload to rise dramatically in the coming years because of fraud associated with the COVID-19 pandemic and the unprecedented government spending for pandemic relief. It will take several years to discover and investigate sophisticated schemes involving large-dollar relief programs, complex healthcare fraud schemes that take advantage of pandemic regulatory waivers, and fraud in healthcare provider payments.[6]
As for non-government lawyers, this organization, the Taxpayers Against Fraud, is the largest group of private whistleblower attorneys, who handle fraud cases on behalf of Whistleblowers with 410 members and a staff that includes 2 attorneys.[7] (By contrast the American Immigration Law Association has more than 15,000 members). [8]
Even if you triple or quadruple the number of government and private attorneys who are prosecuting fraud cases, it is only a small fraction of the 1.3 million active lawyers in the country, according to the American Bar Association. [9] As described on Sept. 2, there are trillions of dollars at stake each year in federal expenditures. On Labor Day, as we move forward talking about other numbers involving fraud in America, keep in mind how few resources the government actually has available to prosecute fraud against the government.
By Tony Munter of Price Benowitz, LLP
[1] https://www.justice.gov/jmd/page/file/1398991/download Budget and Performance Summary, p 58. (Funds for 866 Attorneys enacted for FY 2021; DOJ requesting 896 Civil Division Attorneys for FY 2022).
[2] https://www.justice.gov/doj/page/file/1246246/download FY 2021 Congressional Budget Submission, US. Department of Justice Civil Division FY 2021 Budget and Performance Plans, Feb 2020, page 4.
[3] https://www.justice.gov/doj/page/file/1246246/download FY 2021 Congressional Budget Submission, U.S. Department of Justice Civil Division FY 2021 Budget and Performance plans, page 5.
[5] https://www.justice.gov/jmd/page/file/1399111/download Budget and Performance Summary, p. 92
[6] https://www.justice.gov/jmd/page/file/1399111/download. Budget and Performance Summary, p. 92.
[7] https://www.taf.org/directory, https://www.taf.org/our-team
[8] https://www.aila.org/about
[9] https://www.americanbar.org/news/reporter_resources/profile-of-profession/ ABA Profile of the Legal profession 2021 page 10. Shows 1,327,910 active attorneys.
