Journal of American Law

SPRING 2015

The Journal of American Law is a peer-reviewed journal and the only one of its kind in the country. The Journal is a law review focused on important legal issues ranging from complex litigation to Supreme Court rulings.

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20 Journal of American Law // Spring 2015 2. Exposure, ingestion, or removal of an implant on or afer Dec. 5, 1980, has not been claimed in the most recently amended operative complaint or petition and/or specifcally released. 3. Either there is no release for the exposure, ingestion, or an implant on or afer Dec. 5, 1980, or where there is such a release, it is a broad general release (rather than a specifc release), which efectively releases ex- posure or ingestion on or afer Dec. 5, 1980. Te rule also applies if the broad general release involves an implant. 21 issues Regarding indemnifcation Many defense attorneys have attempted to insert indemnif- cation provisions in releases to prevent their clients from be- coming responsible for payment of outstanding medical liens. In settlements, it is now common for defendants and their in- surers to seek indemnifcation from the plaintif as well as the plaintif 's attorney or law frm through insertion of language in the release wherein the plaintif 's attorney or law frm agrees to indemnify the defendants and their insurers against any future action that may be asserted against the insurer or defendant by any lien holder or government entity that may have an interest in the settlement proceeds. Although it is reasonable to require the plaintif to agree to and sign such indemnifcation language, most ethical advisory opinions state that it is unethical for a lawyer to agree to and sign the indemnifcation agreement. 22 Moreover, certain opinions also state that it is unethical for a lawyer to even request or propose indemnifcation by the plaintif 's lawyer for the unpaid liens. Te Model Rules of Professional Conduct are a set of rules created by the American Bar Association (ABA) that provide basic standards of legal ethics and professionalism for lawyers in the United States. 23 Te primary relevant rules that are determinative of this ethical dilemma are Model Rules of Professional Conduct 1.7, 1.8, and 8.4. Although the rules are not binding, most of the states have adopted the rules in whole or in part. Model Rule 1.7(a)(2) provides that a lawyer shall not represent a client if the representation involves a concur- rent confict of interest such that there is a signifcant risk that the representation of the client will be materially limited by the lawyer's responsibility to a third person or a personal in- 21 http://www.cms.gov/Medicare/Coordination-of-Ben- efts-and-Recovery/Mandatory-Insurer-Report- ing-For-Non-Group-Health-Plans/Downloads/ Liability-Insurance-including-Self-Insurance-Exposure-Inges- tion-and-Implantation-Issues-and-December-5-1980.pdf 22 Ohio Ethics Opinion 2011-1; Arizona Ethics Opinion 03-05; Illinois Ethics Opinion 06-01; Indiana Ethics Opinion 1 (2005); Missouri Ethics Opinion 125; South Carolina Ethics Opinion 08-07; Tennessee Ethics Opinion 2010-F-154; Wisconsin Ethics Opinion E-87-11; New York City Formal Opinion 2010-3; Kansas State Bar Assn. Legal Ethics Op. KBA 01-05 (May 23, 2002); North Carolina State Bar Ethics Op. RPC 228 (July 26, 1996); Advisory Comm. of the Sup. Ct. Missouri, Formal Op. No. 03-05, 2003; and New York City Bar Inquiry Reference No. 10-12 (June 1, 2010). 23 Model Rules of Prof'l Conduct (2013). terest of the lawyer. Model Rule 1.8(e) states that a lawyer shall not provide fnancial assistance to a client in connection with a pending or contemplated litigation except for some specifc instances unrelated to lien resolution. Moreover, Model Rule 8.4(a) provides that it is professional misconduct for a lawyer to violate or attempt to violate the Model Rules of Professional Conduct or knowingly assist or induce another to do so. In 2005, Indiana was one of the frst states to issue an ethics advisory opinion that directly discussed indemnifca- tion provisions in releases under the terms of the MSP. Te Legal Ethics Committee of the Indiana State Bar Association opined that such indemnity provisions by plaintif 's lawyers are unethical. Specifcally, the committee noted that attorneys involved in such indemnifcation provisions violated Rules 1.2(a), 1.7(a)(2), 1.8(e), 1.15(d), 1.16(a), and 2.1 of the Indi- ana Rules of Professional Conduct. 24 Rules 1.7 and 1.8 of the Indiana Rules of Professional Conduct are modeled afer the Model Rules of Professional Conduct. Te committee further noted that Medicare possesses the right to bring a cause of action against any entity responsible for primary payment of medical expenses. In Formal Opinion 2010-3, the Association of the Bar of the City of New York Committee on Professional and Judi- cial Ethics addressed whether the New York Rules of Profes- sional Conduct permitted a defendant to request of plaintif 's counsel a provision in a settlement agreement wherein plain- tif 's counsel would guarantee personally the client's indem- nifcation obligation and hold defendants harmless from any third-party claims. Te association opined that such requests violated Rule 1.8(e)(1) of the New York Rules of Professional Conduct, which generally prohibits a lawyer from assisting a client in meeting fnancial obligations to third parties result- 24 Indiana Rules of Prof'l Conduct R 1.2(a) provides that a lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. Rule 1.15(d) further states that upon receiving funds or other property in which the client or third person has an interest, a lawyer shall promptly notify the client or third person. In addition, Rule 1.15(d) provides that, except as stated in this rule or otherwise permitted by an agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. Rule 1.16(a) states that a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation if (1) the representation will result in violation of the Rules of Professional Conduct or other law; (2) the lawyer's physical or mental condi- tion materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. Rule 2.1 provides that in repre- senting a client, a lawyer shall exercise independent professional judgment and render candid advice. Te rule also states that in rendering advice, a lawyer may refer not only to law, but to other considerations such as moral, economic, social, and political factors that may be relevant to the client's situation.

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