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 .
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