Y L D P R E S I D E N T’ S M E S S A G E M e l i s s a M o r a- A d v e n t i s t H e a l t h S y s t e m
what’ s the risk?
Many times, lawyers are stuck in a sea of“ gray,” seeking out the option that allows their clients to move forward, while not violating any rules, laws, or policies.
Almost immediately after I started practicing law, I was reminded of how little I actually knew. It was a disheartening feeling, after completing two decades of school and the gauntlet that was the Florida bar exam, but I think it is a feeling common to new attorneys everywhere. As I near the end of my tenure as a“ young lawyer”( at least by the HCBA’ s defined standards), I’ d like to share a lesson learned from those difficult days of my very early practice.
One constant among nearly all the clients I’ ve worked with, whether I was in private practice or in-house, is that they have all been significantly more interested in the risks associated with moving in a certain direction than the legal reasoning that case law or other legal treatises provide. The task of identifying and researching issues will always be the foundation of legal practice, but I have distinct memories of a partner often asking me, when I would work on a legal research project,“ What’ s the risk?” I never truly appreciated this question until I started working in an in-house position and was routinely asked the same thing by the CEO.
Many times, lawyers are stuck in a sea of“ gray,” seeking out the option that allows their clients to move forward, while not violating any rules, laws, or policies. Clients want to understand the risk associated with the options their lawyers recommend, so that they can determine whether the benefit to their business is worth the risk of moving forward based on the analysis we provide. It is our job to identify the risks, but it does not stop there. One of my mentors taught me to strive to provide at least three options that will meet the client’ s goal without running afoul of applicable laws, regulations, or policies. There are times where this may not be possible, but in those situations, try to exhaust all avenues. Try to avoid the following,“ The risk in this situation is ____, and you should not proceed.” In my experience, that simply may not be a helpful thing for clients to hear. Clients often have goals they are trying to
meet, and receiving several options from their attorney helps them to meaningfully consider their actions and hopefully avoid any unnecessary risk.
For example, as a healthcare attorney, I am challenged quite often when structuring relationships involving physicians and healthcare entities. The federal Stark law often applies to this work, and in very general terms, it prohibits certain relationships between healthcare entities and physicians. This law is a strict liability statute, and violations can result in hefty penalties( including headlinemaking, and often debilitating, civil monetary penalties). It is not only important that the physician-healthcare entity relationships I work on comply with the Stark law when it applies, but also that when structuring these relationships, I provide options to my client that will meet their goals.
A final piece of advice: If your client does not follow your recommendation, never assume you failed to advocate appropriately. You did not fail so long as you were professional, respectful of the issue, obtained all the facts, reviewed and potentially provided other options, and did not compromise your own ethical standards when providing your answer.
© Can Stock Photo / alphaspirit
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