February 6, 2007
Weeks on the Ethics of Exploiting "Loopholes" in Health Care Regulatory and Reimbursement Practice
Posted by Alan Childress
Elizabeth Weeks (U. Kansas--Law), below left, has posted to SSRN her article, "Loopholes: Opportunity, Responsibility, Or Liability?" It is also scheduled for volume 35 of the Journal of Law, Medicine and Ethics, No. 1 (2007). Here is her abstract:
This paper, which was solicited as a column for The Ethical Health Lawyer, briefly considers the role of health care attorneys in advising clients on revenue-maximizing opportunities under regulatory loopholes. Health law practice in the ethical gray area highlights tensions between competing duties of client loyalty and zealous advocacy, socially responsible corporate behavior, and legal professional ethics. The article explores those themes through several specific examples of loopholes in government health care reimbursement methodologies and other regulatory frameworks.
February 6, 2007 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack
More on Professorial Star Power
As Alan would say, aproposner of his post on basking in the charisma of the celebrity law professor who is added to the brief, there is also the question whether it translates into any advantage in the litigation. Going on twenty years ago, we litigated an issue of contract interpretation under the UCC in the 10th Circuit. Note the following reference to counsel for the parties:
A. Daniel Feldman (John W. Treece and D. Maria Majeske with him on the briefs) of Isham, Lincoln & Beale, Chicago, Ill. (James J. White, Ann Arbor, Mich., of counsel, also with him on the briefs), for defendant-appellant Commonwealth Edison Co.
Donald S. Young (Kathleen McCree Lewis, Jeffrey M. Lipshaw, and Daniel J. Stephenson with him on the brief) of Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, Mich. (George F. Heiden, of counsel, Omaha, Neb., and Bruce A. Salzburg of Freudenthal & Bonds, also with him on the brief), for plaintiffs-appellees Black Butte Coal Co. and Big Horn Coal Co.
Commonwealth Edison lost. See Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259 (10th Cir. 1988).
As an additional note, pertinent to nothing, there is some interesting legal profession history embedded here. This was one of the last big cases litigated by the Isham firm before it imploded (it had just merged with the Reuben & Proctor firm in Chicago). Dave Freudenthal is now the governor of Wyoming. John Treece, post-Isham, went to Sidley & Austin, where he represented Monsanto/Pharmacia/Pfizer in the case, well known to securities lawyers, of Great Lakes Chemical Corp. v. Monsanto, on the issue whether an LLC interest could be classified as a security, soundly kicking the butt of one J.M. Lipshaw, senior vice president & general counsel of Great Lakes Chemical Corporation.
And as long as we are procrastinating, how is a relative of the painter in Alan's post like the picture above? It is a Munch-kin. Ow.
February 5, 2007
Rehab for Wikipedists?
Dan Solove has an interesting post over at Concurring Opinions, with a number of interesting comments, on the use of Wikipedia as a source. With at least one responsible voice in the blogosphere suggesting that anyone who has ever cited Wikipedia should be blacklisted from a scholarly career, no doubt many people are out there using the "Find" function in Word or the binoculars in PDF to determine if they have ever used Wikipedia as a source.
I tend to agree with Richard Posner that you have to consider the reason for the citation to Wikipedia (see the quote in Dan's post from the New York Times). My one trafficking with it in print was to provide a place one could read about the phrase "turtles all the way down" (an allusion to infinite regress arguments) and for that relatively innocuous, if not inane, reference, it seemed then and now like a perfectly good source. My use of the "see..." intro in the footnote would seem to pass muster among the commenters over at Con Op; I wasn't really using Wikipedia to support a proposition but to direct the bored reader to something perhaps more interesting.
Other than that, I am a social Wikipedist. An occasional reference in the evening before dinner, and perhaps one or twice on weekends. But never on the job, when driving, or operating heavy machinery. And I still think blacklisting a Wikipedia abuser is overdoing it. Perhaps taking a page from the NFL and the NFLPA's recent decision on players who test positive for steroids (they will be banned from the next Pro Bowl), we should simply ban them from presenting at the next AALS meeting.
Moonlighting Law Professors Bring "The Wow Factor" to Law Firms
Santa Clara Law School's Eric Goldman blogs here on reports that some law firms are adding marquee law professor names as "Of Counsel," with an eye towarding creating "a 'wow factor.' " Says a Quinn Emanuel partner about affiliating with Kathleen Sullivan: "Honest to God, having Kathleen with you at a meeting is like walking in with Mick Jagger."
I am more interested, obviously, in that affiliation down the road with some law prof for whom, honest to God, dragging him to a meeting is like meandering in with Keith Richards. Until then, I simply note that my own affiliation would bring the Woah Factor (right). [Alan Childress]
UPDATE: Here is the law.com story on such consulting.
MPRE and Reality TV - Episode 7
Got my ticket for the March 10 rendition of the MPRE to be taken in Cheneyville, U.S.A. ("an undisclosed location"). Here is an unsolicited plug for Brad Wendel's Professional Responsibility in Aspen's Examples & Explanations series. I am up to page 98 (of 420) and I still find it interesting.
The Utah Supreme Court removed a justice court justice "in the predominately polygamous community of Hilldale, Utah" for having three wives. The judge also has 32 children, raising the question of how he had time for his judicial duties. Because he had sworn to uphold the laws and constitution of Utah, which treats polygamy as a crime, his belief that the criminal prohibition was constitutionally defective did not save his judicial career. (Mike Frisch)
Rapoport on Bankruptcy Ethics Issues, Including Advice for Solos & Small Firms
Nancy Rapoport (U. Houston--Law), also an editor here at LPB and a blogger at her own very interesting and eclectic website, has posted to SSRN her book chapter, Bankruptcy Ethics Issues for Solos and Small Firms. It is part of the book Attorney Liability in Bankruptcy, published in 2006 by the ABA (information and ordering here). The chapter's detailed contents, including "the three C's" and a riff on the "Money" song, are reprinted at this post below the fold. The book's entire table of contents is linked here. Her abstract is:
This chapter, in Corinne Cooper & Catherine E. Vance's book, Attorney Liability in Bankruptcy, walks the reader through some of the traditional ethics issues triggered by representing consumers and small businesses. It also addresses some of the ethics issues that the recent Bankruptcy Amendments (BAPCPA) have created.
Bankruptcy Ethics Issues for Solos and Small Firms 121
by Nancy B. Rapoport
I. "DTACs" and Conflicts Checks 121
II. State Ethics Rules and Conflicts of Interest 125
III. Bankruptcy Ethics Rules-Creditor (or Other Non-estate) Representation 128
A. Representing Creditors 128
B. Representing the Estate 129
IV. The Three Cs: Competency, Confidentiality, and Conflicts (Avoidance of) 132
A. Competency 132
B. Confidentiality 132
C. Conflicts of Interest 133
V. Money, Money, Money, Money-MONEY! (Reasonable Fees) 133
VI. What the Heck Is "Bankruptcy Assistance," Anyway? 134
VII. The Pen Is Mightier Than the Sword: Rule 11 of the Federal Rules of Civil Procedure and Bankruptcy Rule 9011 136
VIII. Just When You Thought It Was Safe to Go Back in the Water: You're a Debt-Relief Agency! 138
IX. Am I My Client's Keeper? Reaffirmations under the BRA 139
X. The Final Word: Withdrawal 140
February 4, 2007
Something Inane to Refresh the Palate
This post is a mere trifle, like that dab of sorbet they give you sometimes in pretentious restaurants "to refresh the palate" between the appetizer and the entree. I think the preceding post may have intimidated my co-bloggers. Who wants to follow that? So I'm doing it for them.
Our friends invited us to a Christmas eve dinner, and we played that game where you take a grab bag gift, and then each succeeding person can keep the gift or demand an exchange with an earlier gift. Early in the game I received a large squawking rubber chicken (pictured, left), to which I quickly developed a somewhat strange and unnatural attachment. But the last person in the game snatched it from me, and our friend and host Denise apparently felt very bad about it.
My wife and I met in Boston this weekend to close on our house, and lo and behold, Denise had gone out and purchased another squawking rubber chicken, which Alene packed in her checked luggage and delivered to me here. I, on the other hand, do not check luggage and carry a soft-sided duffel bag. But if you barely touch the chicken it lets out a tremendous howl. I'm looking forward to seeing how TSA and my fellow airplane passengers handle it if anybody pushes on my duffel bag and it screams like a wounded chicken.