Eight Things for Healthcare Leaders To Consider When Engaging Legal Counsel

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Carolyn McClain copyBy Carolyn McClain

The prospect of engaging a healthcare attorney can be daunting.  The heavy regulation of the healthcare industry has increased awareness of the need for legal and regulatory advice, so healthcare leaders know that it is no longer sufficient to open the local phonebook to find an attorney.  That being said, what is the best way to identify the appropriate attorney for a facility or provider?  Following are eight issues to think about when hiring legal counsel.

  • First, consider the underlying reasons for hiring an attorney.  Is the facility or provider in need of on-going guidance or assistance with a single issue?  Are the circumstances urgent, for example, is there a need for an immediate response to a lawsuit or a governmental investigation?  Has the facility or provider identified the need for legal counsel on staff, also known as in-house counsel?  Understanding the length and extent of the engagement will assist in the search.
  •  Identify the subject matter.  Many in-house counsel have an extensive understanding of healthcare law, but in some cases special counsel is needed to adequately address a specific issue.  The list of practice areas is extensive, for example, antitrust, mergers and acquisitions , employment, malpractice defense, peer review issues and regulatory compliance.

  • Identify the candidates.  General counsel and in-house counsel are a valuable source of referrals, as are colleagues and professional organizations.  Law firm websites often include their attorneys’ CVs.  Look for experience in handling matters similar to the issue at hand.  Contact the insurance carrier first if there is any chance this will be covered by liability insurance; this could be a prerequisite to coverage.
  • Be aware of attorney-client privilege in connection with the Compliance Department.  Some issues that demand confidentiality require the involvement of counsel for maintenance of privilege.  This is a complicated and evolving area, so seek detailed guidance from an expert in the field.
  • Stay abreast of current events and consider involving counsel in the development of new policies, for example, a firearms policy in light of the Sandy Hook tragedy, or a CPR policy in response to the recent case in which a long term care facility prohibited staff from initiating CPR on residents.  Facility staff can draft the policy to reflect the facility’s intent and procedures, but it is advisable to have a lawyer review the draft for consistency with law and regulation.
  • Contact an attorney when considering a significant business transaction.  It has been observed that, in today’s environment, if a healthcare deal makes great business sense, it is likely to be illegal.  Save time, anxiety and money by seeking guidance early on.  This is preferable to creating a complex deal, only to be told it will likely violate state or federal law, and pose a risk of financial penalties, even criminal liability.
  • Consider the facility’s “personality”.  Some facilities are more risk averse than others.  Some are more comfortable with a local attorney, as opposed to one from a distant city.  Talk with an attorney before engagement to assure that there is a comfortable attorney-client relationship.
  • Last, and certainly not least, find out the available fee arrangements and obtain an estimate of costs.  Keep in mind that the most expensive or the least expensive attorney is not necessarily the best or the worst.

These are some key considerations in engaging an attorney.  Do not hesitate to ask questions, but limit any disclosure of a particular issue until the attorney-client relationship is reduced to writing.  An engagement letter is mandatory.  Discussions with prospective counsel will likely lead to considerations in addition to the eight listed above.  Diligence and care in selecting counsel will result in the best outcome for a facility or provider.

Ms. McClain, an attorney with Johnson, Duffie, Stewart & Weidner has practiced healthcare law for over 30 years; handling complex regulatory and transactional matters.  She has held senior-level positions in government and the private sector.  She is a graduate of Franklin and Marshall College and the Dickinson School of Law. For more information on Johnson Duffie, visit www.jdsw.com