West Virginia Falls In Line With Other States – Lawyer Disciplinary Board Holds Attorneys Ethically Barred from Offering Indemnity
Roy Franco
March 26, 2014

West Virginia in a recent Ethics Board Opinion for the State Bar, held in line with other States that a lawyer is ethically barred from entering into a hold harmless and indemnification arrangement with an insurance company and or self insured paying a claim to his or client.  We agree with this holding under the ethic rules.  Although an attorney for a claimant is not legally obligated to provide for such indemnification, they are nonetheless responsible for conditional payments owed Medicare under 42 U.S.C. Section 1395y(b)(2)(B)(iii).  This separate legal responsibility, created by Federal Law was also upheld in West Virginia in the matter of U.S. v. Harris  2008 U.S. Dist. LEXIS 92415.  Consistent with our earlier blog on this issue (See Ethics Issue – Attorneys Cannot Indemnify on Behalf of Clients, posted 2/20/2011) we recommend attorneys to be proactive with resolving Medicare conditional payments as soon as practical after a settlement, judgment or award.  Now that MMSEA Section 111 is in play, insurance and self insurance entities are sending volumes of data to Medicare about settlements, judgments and awards over $2,000 that involve a Medicare beneficiary.  Medicare has promised to use this data to perfect its recovery rights which include the plaintiff attorney connected to the file.  To assure the identity of the attorney is known to Medicare, the data required to be sent to Medicare includes the name and contact information of the attorney.

To avoid conditional payment responsibility, act fast to resolve issues with Medicare before they can fester.  Contact us today and we will be happy to demonstrate to you our abilities to secure and negotiate appropriate reductions with Medicare.