The Philadelphia Bar Association’s professional guidance committee on which I serve generally provides excellent guidance for practitioners in its published opinions. Once in a while, however, an opinion goes wildly off track most recently in Opinion 2011-6. And, it matters, because the universal prohibition imposed by Opinion 2011-6 deprives injured plaintiffs (clients) of choices in settlement negotiations that are rightfully theirs (with counsel) to make.
The guidance from Opinion 2011-6 holds that it will always be “financial assistance” (and thus prohibited) for counsel for a plaintiff to agree, as part of a settlement negotiation, to “indemnify” a settling defendant from a later claim by Medicare arising out of failure of the plaintiff to satisfy the Medicare lien from settlement proceeds. The conclusion that any such agreement is always “financial assistance” is the ultimate basis for the opinion’s blanket prohibition. No “informed consent” to a conflict could be given for prohibited “financial assistance.” But, Opinion 2011-6 fails entirely to explain why such an agreement must always be “financial assistance.” Indeed, it seems clear that such an agreement is not likely to ever result in prohibited “financial assistance” to a client.
