Archive for October, 2010

19
Oct
10

PI Attorneys: Don’t Forget ERISA Claims

Above The Law's Male ERISA Hottie Bruce Wolk

Since this page has been discussing potential exposure for the personal injury plaintiff’s attorney under the Medicare Secondary Payors Act, it seems a good time to remind readers of the similar potential exposure created by ERISA and other similar liens.  A recent Federal case out of the Sixth Circuit seems like a good starting point.  

In Longaberger Co. v. Kolt, 586 F.2d 459 (6th Cir. 2009), the Sixth Circuit upheld summary judgment in favor of a self-funded ERISA plan which would recover one-third of a six-figure lien from the insured’s personal injury attorney.  The important thing to remember from this case, which does a good job of explaining the current state of the law, is that (1) self-funded ERISA plans may be limited to equitable remedies, but those remedies have teeth, especially after Sereboff v. Atlantic Medical Services, Inc., 547 US 356 (2006); and (2) a plaintiff attorney ignores the ERISA lien at his or her peril. 

I will make no effort to explain the state of the law in this area.  I encourage you to read the above cited opinions for a clearer understanding of the law.  I further submit that you consider the same suggestions offered for dealing with the Medicare Secondary Payor Act  when dealing with potential ERISA reimbursement issues.

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13
Oct
10

How To Ruin Your Malpractice Insurer’s Day – V

This post is the fourth based upon a series of books written by former Nixon speech writer and lawyer Ben Stein.  His series of books are called “How to Ruin Your _________.”  In his series, the “blank” could be your “Life,” your “Love Life,” or your “Financial Life.  

Ben Stein reasons that “failure is a virtual road map to success in reverse.”  For example, his first nugget of anti-wisdom in his how to ruin your love life book is to assume that your wishes are all that matters in any situation.  The roadmap to success may not be as clear as the one to ruin, but both maps are useful.  

Following Ben Stein’s advice prepares you for a future of failure.       

By following my advice in this post, your future will likely be positive for a legal malpractice action.  

Don’t Call Your Client Back:  As a lawyer, you are quite busy. You can’t be expected to call every client back just because he left a message, stopped by the office twice, and mailed you a letter with a lot of questions about the representation. The client knows you are busy and that other clients are important too.  Plus, you have tickets to the game tonight. You will eventually tell the client that the court dismissed the case. It just isn’t important right now.

* * * *

Interviews of legal malpractice claimants and clients who filed bar complaints show that the greatest common complaint is that the attorney would not communicate with the client. Communication serves several important roles. The failure to communicate with a client causes the client to become angry and suspicious of the attorney. From a practical standpoint, communication also helps define the scope of representation and achieve the other malpractice avoidance goals mentioned in earlier posts in this series.

Most importantly, communication creates a relationship with the client. Even when things go wrong, prompt, regular communication throughout the representation can be the greatest tool against a legal malpractice claim. Proper communication will accomplish the following: set reasonable expectations for the representation, keep the client informed about the status, avoid surprises over the bills, and adjust expectations as necessary. At the very least, return all phone calls and answer all correspondence.

08
Oct
10

Avoiding Conflicts Under The Medicare Secondary Payors Act, Part II

Hello, Secondary Payor Claim*

Last week, we discussed how a plaintiff’s personal injury attorney might take steps at the inception of the representation to avoid conflicts with his or her client over the Medicare Secondary Payors Act.  This week, we tackle what should be done later in the litigation, regardless of whether the initial suggestions have been followed. 

1.  Ascertain from Medicare how much is claimed during the litigation.  Try to negotiate a reduction at that time.  Try to negotiate the reduction before the case is settled or tried so that litigation strategy can be adjusted and the client knows the implications of an award or settlement.  The incentive (or lack thereof) to pursue the claim at all may prove useful in negotiating with Medicare. 

2.  Do not rely on your client to pay Medicare.  It is important that the attorney pay Medicare before distributing all of the funds if possible.  

3.  If the client objects to paying Medicare its share, upon receiving an award or settlement, comply with Rule 1.15 and reserve an adequate amount in your client trust fund to cover the potential exposure to Medicare.  Distribute the balance as otherwise required by the fee agreement and settlement. 

4.  If the client receives money directly, and you have reason to believe that Medicare may not be reimbursed, protect yourself from an allegation that you assisted a client in conduct that you knew did not protect Medicare.  At the least, send a CYA letter to the client.  Call the Bar Ethics Hotline if you have other questions. 

Next week, we will take a look at the personal injury defense attorney’s concerns. 

*Image of Dr. Nick, the Simpsons, Fox Broadcasting, all rights reserved.

07
Oct
10

How To Ruin Your Malpractice Insurer’s Day – IV

Ben Stein - A Man To Take Seriously

This post is the fourth based upon a series of books written by former Nixon speech writer and lawyer Ben Stein.  His series of books are called “How to Ruin Your _________.”  In his series, the “blank” could be your “Life,” your “Love Life,” or your “Financial Life.  

Ben Stein reasons that “failure is a virtual road map to success in reverse.”  For example, his first nugget of anti-wisdom in his how to ruin your love life book is to assume that your wishes are all that matters in any situation.  The roadmap to success may not be as clear as the one to ruin, but both maps are useful.  

By avoiding Ben Stein’s advice, you may not be a great success, but you will probably do pretty well.       

By following my advice in this post, a legal malpractice action is just 30 days away.    

Sue your clients for your fees: You tried really hard but lost that case. Now the ungrateful client won’t pay the bill. Undoubtedly you should sue your client to get paid. He would never think of counterclaiming for legal malpractice and claim that you lost the case because of your negligence. That would just be rude.  

* * * *  

The best practice is to get paid up front when possible. Otherwise, keep your client current. When a client gets behind, demand payment or get out before the situation becomes worse.  If your client gets so far behind that you need to sue for those fees, you need to have a better plan next time.  There is no quicker way to get a malpractice claim than to sue a client for attorneys’ fees.

01
Oct
10

Avoiding Conflicts Under the Medicare Secondary Payor Act, Part I

Do You Think I Am Made Of Money?

Last week, I discussed the recent cases of U.S. v. Harris and U.S. v. Stricker, two cases showing the new aggressiveness by the U.S. in its efforts to recover the “conditional” payments made by medicare.  Anyone settling any claim, from plaintiff’s attorney to paying defendants and insurance companies (and their attorneys by virture of potential claims by clients), must be aware of this law and its implications.  I promised to discuss how to avoid conflicts in such situations. 

This week, we will focus on the plaintiff’s attorney, and the inception of the litigation. 

1.  Begin with the client’s retention letter and fee agreement.  Include in any letter of engagement that reimbursement of Medicare medical payments will come from the client’s share of any recovery rather than from the attorney’s fee.  Include an explanation that the larger the Medicare reimbursement, the potentially smaller the total recovery for the client.  Ensure that by signing the agreement, the client is providing written consent that the attorney can and must pay Medicare’s claim from the recovery.

2.  Start early in the case dealing with this issue.  Determine as soon as possible whether Medicare benefits are involved in the case.  Is so, advise the client that the langauge in the retention letter and fee agreement apply and that Medicare reimbursement may affect final recovery.

3.  Segregate the payments made by Medicare form those made by other sources.  Do not let Medicare claim recovery for bills not paid by Medicare (and do not doubt that it may try).  This may require reviewing each bill.  This could be necessary in any event as other sources of payments are also becoming more aggressive in recovering medical payments to personal injury claimants (see a future post dealing with ERISA payments). 

4.  If you think any of this is a pain, read the opinion in Harris.  Then read it again.  Then read the complaint in Stricker.  Now, start again at No. 1 above.

Next week we will focus on what the plaintiff’s attorney should do during the litigation and at the time of settlement.  After that, we will look at the risks and suggestions for the corporate and insurance defense counsel.




Kim Jackson Cleans Up The Mess

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