James M. HAGOOD, Plaintiff-Appellant, v. SONOMA COUNTY WATER AGENCY, Defendant-Appellee

concurring;

I concur in the result, and in the majority’s reason, that what Hagood revealed was not fraud.

We err, I think, in deciding that Hagood was an original source who voluntarily provided the information. He was a lawyer charged with the duty of drafting a contract and other documents for the transactions at issue. If he thought the transaction was fraudulent, he was “required to give an honest opinion” to his client, and “may not knowingly assist a client in criminal or fraudulent conduct.” Model Rules of Professional Conduct Rule 1.2 cmt. 6 (1995). See also Rules of Professional Conduct of the State Bar of Cal.Rule 3-210 (1995) (stating that “[a] member shall not advise the violation of any law ... unless the member believes in good faith that such law ... is invalid”). These professional obligations made disclosure to his agency of fraud mandatory, not voluntary. Therefore, United States ex rel. Fine v. Chevron, U.S.A., Inc., 72 F.3d 740, 741 (9th Cir.1995)(en banc), controls, and prevents qui tam recovery.

In Fine, we held that an internal government auditor whose job was to expose fraud did not “voluntarily” provide information. Id. at 743 — 14. The majority states…

Opinion by Judge SNEED; Concurrence by Judge KLEINFELD.

This is an appeal by qui tam plaintiff James M. Hagood from the district court’s grant of summary judgment in favor of the Sonoma County Water Agency in his action under the False Claims Act, 31 U.S.C. §§ 3729-3733 . 1 Hagood’s action has its source in the construction of the Warm Springs Dam on Dry Creek, a tributary of the Russian River in northern California, and a 1982 amended contract by which the Sono-ma County Water Agency (“the Water Agency”) agreed to repay the United States for the water supply component of the cost of building the dam. Thus, Hagood’s action is a “reverse false claim”: he alleges not that the Water Agency fraudulently overbilled the United States, but that it fraudulently induced the United States to underbill it. Ha-good contends on appeal that the district court erred by (1) finding that it lacked subject matter jurisdiction over his claim concerning the fixed repayment schedule; and (2) granting summary judgment in favor of the Water- Agency on his cost allocation claim. The Water Agency submits that the district court lacked subject matter jurisdiction over both claims.

This is Hagood’s second…

81 F.3d 1465 96 Cal. Daily Op. Serv. 2624 , 96 Daily Journal D.A.R. 4345 James M. HAGOOD, Plaintiff-Appellant, v. SONOMA COUNTY WATER AGENCY, Defendant-Appellee. No. 95-16092. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 15, 1996. Decided April 15, 1996. Lauren Cabot, The Law Firm of Cabot and Farrell, Denver, CO, for plaintiff-appellant. Vernon I. Zvoleff, Kenneth P. Conour, Preuss Walker & Shanagher, San Francisco, California, for defendant-appellee. Appeal from the United States District Court for the Northern District of California; Claudia Wilken, District Judge, Presiding. Before: HUG, Jr., Chief Judge, SNEED and KLEINFELD, Circuit Judges. Opinion by Judge SNEED; Concurrence by Judge KLEINFELD. SNEED, Circuit Judge: 1 This is an appeal by qui tam plaintiff James M. Hagood from the district court's grant of summary judgment in favor of the Sonoma County Water Agency in his action under the False Claims Act, 31 U.S.C. §§ 3729-3733 . 1 Hagood's action has its source in the construction of the Warm Springs Dam on Dry Creek, a tributary of the Russian River in northern California, and a 1982 amended contract by which the Sonoma County…