Juggling ethical questions in health care law

"In many cases, difficult issues of professional responsibility can be avoided, or at least mitigated, by appropriate advance planning on the part of the lawyer and clear communication with the client – and with other interested parties who may view themselves as clients, even thought they are not," wrote Andrew J. Demetriou and William W. Horton in "It's Eight O'Clock – Do You Know Who Your Client Is? Practical Ethics for Healthcare Lawyers," prepared for a recent CLE teleconference/webcast of the same name from the ABA Health Law Section and Center for CLE.

Using two hypothetical cases, the first involving a lawyer specializing in managed care contracting and the second based on a hospital's general counsel who is asked to prepare a partnership agreement between the hospital and a group of its doctors, the two authors of the paper spoke to specific questions about the cases, under the guidance of moderator Edward M. Sosa, chief legal officer, El Paso County Hospital District Legal Unit.

"The time to figure out one's ethical duties is not at the point when one is already caught in the middle, but that is frequently what happens," they said, and suggested considering and coming to a full understanding of one's duty of confidentiality and duty of loyalty. As they point out, a lawyer should avoid representing a client if, in order to represent that client effectively, he or she might have to disclose confidences and secrets from a previous client. In a case in which a lawyer has to make a judgment call involving multiple clients, each client has the right to expect that his or her confidences are protected.

As Demetriou pointed out in discussing potential conflicts, a lawyer should use plain language with a client in explaining that conflicts may arise. Further, there may be matters in which explicit agreements should be drafted prior to moving ahead with representation. In addressing the second hypothetical, where the lawyer had been asked to represent both the hospital and doctors – Demetriou and Horton suggested that the lawyer have an exit strategy in the event that the case goes south. "The biggest mistake," said Horton, "was in letting the situation get out of control."

Demetriou and Horton's paper is available online here [PDF] for the next two weeks. Audio of the program is available through the ABA Webstore.

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