Role of attorneys coming under federal scrutiny
June 28, 1999
Role of attorneys coming under federal scrutiny
The recent indictment of two attorneys as part of a federal suit against Baptist Medical Center in Kansas City, MO, (see Compliance Hotline, April 19, 1999, p. 1) could be a harbinger of things to come, according to McCarty Thornton, senior counsel to the Health and Human Services (HHS) Office of Inspector General (IG).
"I am not accusing the bar of any widespread participation in crime," Thornton cautions. "But having looked at a lot of cases coming across my desk and documents that were designed by attorneys, it is hard to believe that the attorney didn’t know that what was going on was a sham. The legal structure that was attached to the kickback was so apparently non-substantive that the attorney must have known that the object of the transaction was to recompense for referral." When that happens, Thornton says attorneys switch from being counsel to being participants in fraud.
"If I was [a health care attorney] doing mostly transactions and advice and I hadn’t really thought about criminal law lately, I would check out the crime fraud exception." That exception says the attorney/client privilege can’t be asserted if the parties know the communication between them furthers a crime or fraud.
Thornton was careful to note he doesn’t anticipate a lot of attorney indictments, but his message was unmistakable. "It would behoove everybody to brush up on the crime fraud exception and think about how some of these things could play out if your client gets in trouble for kickbacks."
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