The Advisory Committee on Professional Ethics received an inquiry from a lawyer who represents a plaintiff in a personal injury lawsuit arising from a motor vehicle accident. Plaintiff participated in a self-funded health benefits plan (“Plan”) through his workplace. The Plan was established under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C.A.Section 1001 et seq. After the personal injury lawsuit was filed, the Plan requested that both plaintiff and his lawyer sign a subrogation agreement providing that the Plan will be reimbursed, from any settlement or judgment, for medical expenses it paid to the plaintiff.
Plaintiff’s lawyer inquires whether he may, consistent with the Rules of Professional Conduct, “personally guarantee a client’s failure to repay an asserted reimbursement interest out of the personal injury recovery obtained with the services of the attorney to the client’s health insurance company.” The Committee finds that a lawyer may not agree to personally guarantee a client’s repayment of monies to the Plan, though a lawyer may agree to satisfy a valid lien out of funds in the lawyer’s possession.
