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The Ethical Health Lawyer: Maintaining Integrity While Representing Health Care Clients Under Investigation or Before a Tribunal

Published online by Cambridge University Press:  01 January 2021

Philip L. Pomerance
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Extract

Health care may be the most regulated industry in the United States, at least in terms of the volume of State and Federal laws and regulations that affect business practices. Lawyers who counsel health care clients often face a dilemma: is the client seeing legitimate advice about the legal limitations on his or her conduct, or is the client seeking to use the lawyer's skills to evade the law? The history of health care fraud prosecutions involving lawyers and other professional advisors in recent years makes this an issue of more than academic interest. The well publicized case of U.S. v. Anderson, in which health care counsel faced charges as co-defendants for purported kickback violations, the recent prosecution of Ernst & Young for allegedly aiding Medicare fraud on behalf of client hospitals, and the recent indictment and conviction of an in-house lawyer in a national durable medical equipment fraud case, make clear that the wrongful use of legal advice by health care clients can lead to significant criminal and civil charges against attorneys.

Type
The Ethical Health Lawyer
Information
Journal of Law, Medicine & Ethics , Volume 33 , Issue 2 , Summer 2005 , pp. 375 - 379
Copyright
Copyright © American Society of Law, Medicine and Ethics 2005

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References

See United States v. Anderson, Case No. 98-20030-JWL (D. Kan. Superseding Indictment filed July 15, 1998).Google Scholar
See United States v. Ernst & Young, LLP, (E.D. Pa. filed January 5, 2004). The consulting firm settled this case, which had been brought under the False Claims Act, 31 U.S.C. § 3729 et seq., for $1.5 Million on July 20, 2004.Google Scholar
See United States v. Arizant, Inc., Crim. 03–30023-GPM (S.D Ill. Superseding Indictment filed June 20, 2003) (medical device manufacturer General Counsel indicted with company and other officers as a member of alleged conspiracy to conceal true nature of device from Medicare fiscal intermediaries, so as to gain improper reimbursement).Google Scholar
For the purposes of this discussion, I refer to the Model Rules as adopted by the House of Delegates of the American Bar Association. See Model Rules of Prof’l Conduct (2004). Of course, an individual attorney is governed by the rules of conduct adopted in the specific jurisdictions in which the attorney is licensed.Google Scholar
See Hazard, G. C. Jr. and Hodes, W. W., The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 350 (1998) supp., quoted in Windham, V. L., Note, “Candor Toward the Court: How Much Evidence Must an Attorney Have That the Client Has Done a Wrongful or Illegal Act?” Journal of Legal Profession 21 (1997): 307–316, at 308 n.27. This formulation has always appeared to me a bit simplistic. For example, one assumes the client and his counsel must truthfully answer a direct inquiry from the court, such as if the court asks “do you have a record?” How is the purpose of the Rule served in not correcting the court's clear misunderstanding when, rather than asking the defendant if he has a record, the Court assumes the defendant does not? Does the lawyer's obligation change if the judge is relying upon false information (for instance, in a sentencing report) provided by a third party?Google Scholar
See Hazard, and Hodes, , supra note 7, at 362. Note, however, that the duty to remedy errors and omissions does not last beyond the conclusion of the litigation. “A practical time limit on the obligation to rectify the presentation of false evidence has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. Model Rules of Prof’l Conduct R. 3.3 cmt. 13 2004 (discussing duration of the obligation). See also ABA Comm. on Ethics and Professional Responsibility, Formal Op. 353 (1987) (discussing the lawyer's responsibility with relation to client perjury.) Comment 13 refers to the “conclusion of the proceeding.” In earlier versions of the Model Rules, the “conclusion of the proceeding” was not defined, and some thought that the lawyer's obligation to rectify his client's fraud or criminal action ended at the conclusion of the specific court hearing in which the bad conduct occurred. The newly revised Comment makes it clear: “A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.”Google Scholar
Model Rules of Prof’l Conduct, Preface, (2004).Google Scholar
ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 353 (1987) (discussing lawyer's responsibility with relation to client perjury).Google Scholar
Plunkett v. State, 883 S.W. 2d 349, 352 (Tex. Ct. App. 1994).Google Scholar
In re: Mack, 519 N.W.2d 900 (Minn. 1994).Google Scholar
United States v. Anderson, Case No. 98-20030-JWL (D. Kan. Superseding Indictment filed July 15, 1998).Google Scholar
Id. A review of the indictment in Anderson is very instructive: the government quotes several notes made by one of the lawyers during a long conversation about the nature of the transactions with the physicians and draws the conclusion that the negative comments made about the deal indicate knowledge of the fraud by counsel.Google Scholar
421 N.W.2d 160 (Iowa Ct. App. 1988).Google Scholar
Id. (finding that the lawyer effectively knew that the client was violating the order regarding transfer of the assets). The Illinois State Bar Association, in an Advisory Opinion, has stated that a lawyer appearing of record in a divorce action has a duty to avoid assisting the client's fraudulent conduct when the client persists in concealing marital assets. The Bar Association committee stated that the lawyer, having knowledge of the client's fraud on the tribunal, must disclose this negative information to the court even if the disclosure reveals otherwise privileged information. Illinois State Bar Association, Adv. Op. 94–24 (May 15, 1995).Google Scholar
See People v. Cox, 809 P.2d 351 (Cal. 1991).Google Scholar
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809 P.2d 351.Google Scholar
In re Hopkins, 687 A.2d 938 (D.C. 1996).Google Scholar
Id. at 942. But see Estate of Devoy, 596 N.E. 2d 1339 (Ill. App. Ct. 1992) (sanctioning lawyer for failing to report to the tribunal his suspicions about his client's integrity and ability to properly administer the estate).Google Scholar
See, e.g., Illinois Supreme Court R. 137 (Signing of Pleadings, etc.) (2004), which requires that every pleading, motion and other paper of a party represented by an attorney be signed by at least one attorney of record. In signing the document, the lawyer certifies that he has read the pleading and that after reasonable inquiry, to the best of the lawyer's knowledge and belief, the statements made in the document are well grounded in fact and are warranted by either existing law or a good-faith argument to reverse existing law. The rule provides for significant sanctions against both the client and the lawyer in the event of a violation. Federal Rule of Civil Procedure 11 provides almost the identical protections in all Federal proceedings.Google Scholar
See Model Rules of Prof’l Responsibility R 3.1 (2004) (discussing meritorious claims and contentions).Google Scholar
“We have previously, albeit in a markedly different context, implied that an attorney is generally entitled to rely upon the truthfulness of his client's representations in formulating legal strategy.” State v. Skjonsby, 417 N.W.2d 818,824, and p. 18 of the original slip op. 1987 N.D. LEXIS 449 (N.D. 1987).Google Scholar
In Matter of Mendel, 897 P.2d 68 (Alaska 1995).Google Scholar
While the Alaska Supreme Court ultimately vindicated Ms. Mendel, it is a chilling case in that the lawyer was found in direct contempt of court by two lower courts at least five times during the proceedings. Each time, the lawyer refused to reveal the information sought, stating either that she did not know the answer or that the answer was protected by the attorney-client privilege. Id. at 70–73.Google Scholar
615 F. Supp. 958 (Mass. 1985).Google Scholar
Id. at 969. The lawyers in this case were subpoenaed as part of an investigation into their clients’ allegedly fraudulent marriages as part of a scheme to violate federal immigration laws. Interpreting Disciplinary Rule 7–102(b), the Massachusetts precursor to Model Rule 3.3(a)(3), the Court rejected the government's indictment of the attorneys for “wilful ignorance” of facts, holding that there existed no obligation of counsel to investigate the client's presumptively truthful assertions and that setting forth the facts of the ostensibly authentic marriages in required pleadings did not rise to the level of complicity with the fraud. See also State v. Skjonsby, 417 N.W.2d 818 (N.D. 1987) (holding that defendant who unsuccessfully mounted untruthful defense of accident and self-defense, without his lawyer's knowledge, could not argue post-conviction that his lawyer's failure to disbelieve Skjonsby and his wife and find out “what really happened” was tantamount to ineffective assistance of counsel).Google Scholar