Committee on Professional Ethics Opinion 1297 (07/22/2026)

Topic: Advising private client regarding deceptive conduct while investigating alleged fraud
involving federal government funds in violation of False Claims Act

Digest: Currently, no authority under the New York Rules of Professional Conduct (the “Rules”) would permit the inquirer to induce, assist or supervise a client in engaging in deception. If the lawyer determines that the client intends to proceed or has proceeded with the contemplated deceptive conduct, the lawyer may research and advise the client of the potential risks and consequences of such deceptive conduct under the substantive law governing the client’s contemplated False Claims Act case.

Rules: 1.0(i), 1.1, 1.2(d), 1.3, 8.4(a) & (c)

FACTS

1. The inquirer’s client is a prospective relator in a False Claims Act case. The False Claims Act, codified at 31 U.S.C. §§ 3729-3733, permits a private individual (called a “relator”) to sue any person or entity that fraudulently obtains funds from or fraudulently avoids paying money to the federal government. The relator brings a lawsuit on behalf of the federal government, typically via a sealed complaint, and notifies the federal government of the lawsuit. After the federal government investigates the alleged fraud, the government generally may either (a) intervene and take over the case or (b) decline to intervene and allow the relator to continue to pursue the claim. If the suit is successful (whether...

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