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State Patient Brokering Act Cases to Throw out Legal Advice as Defense

palm beach county task forceBy: Jeff Cohen

There are two criminal cases pending in Palm Beach County that threaten to put a bullet in the heart of healthcare professionals and businesses and also the law practices that advise them.  Both State v. Simeone and State v. Kigar have a motion from the State pending before them to block any testimony that the defendants received legal advice concerning a contract entered into by an addiction treatment facility and a sober home.  The State alleges that the contract violates the state Patient Brokering Act (PBA) because it was essentially a ruse whereby the addiction treatment facility was just paying for the sober home to refer patients.  Now the State wants to make sure that the entire issue of the defendants being advised by counsel never sees the light of day.

How is this possible?  How can it be that a client can seek legal counsel, get advise (and presumably follow it), and then be blocked from presenting that evidence?  The State argues that the PBA has no wording that requires them to prove intent.  And if intent isn’t an element to be proven, the argument goes, then evidence of the client intending not to violate the law by getting advice beforehand is inadmissible!  

Is it critically important to any healthcare professional or business to ensure compliance with the PBA before they enter into a contract?  You bet.  So of course they would go to a lawyer and get advice and pay for that service.  And it would be just common sense that they would be able to rely on the advice and even present that fact of they are prosecuted for violating the PBA, right?  Not if the State has its way in these two cases.  If the State succeeds in its efforts to block evidence of legal advice, then what’s the point of getting legal advice in the first place?  A client would be able to get advice about how to follow the PBA, follow the advice, get arrested and then…have what defense?  Violating the PBA would be treated like a speeding ticket.  Except the PBA carries with it something a speeding ticket doesn’t–imprisonment.  If the State has its way, the PBA would become a strict liability statute.

Even more concerning is how the State’s position impacts one’s right to counsel in the first place.  By excluding from evidence the fact that a healthcare professional or business obtained legal advice and followed it, isn’t that effectively denying one the right to counsel.  There’s something unseemly and even unconstitutional about it.  And lawyers especially ought to be concerned.

The PBA was expanded about a year ago by focusing on the addiction treatment industry.  It was also expanded to target lawyers who “aid and abet” PBA violations.  The prior draft also included accountants, but presumably the Florida Institute of Certified Professional Accountants looked at the proposed law and spoke up (while the Florida Bar was presumably silent).  Question: if healthcare businesses and professionals are unable to raise advice of counsel as a defense to a PBA prosecution, what defense will a lawyer who “aided and abetted” a PBA violation have?  That you knew the law and were doing your best to properly advise clients?  Isn’t that intent?  Isn’t that irrelevant if the State successfully argues that the PBA is essentially a strict liability crime?

The State’s position on these two cases is more critical than it may appear.  In fact, if adopted, it would be a gross injustice.  And simply sitting back because it doesn’t involve someone you know doesn’t make it right.  Better put–

All tyranny needs to gain a foothold is for people of good conscience to remain silent (Thomas Jefferson)

For those seeking additional information regarding the cases mentioned in this article, contact David Frankel, Esq. via email [email protected] or via phone (954) 683-0300. There is a critical hearing scheduled for Friday, October 19, 2018 at 1:00 p.m. at the Palm Beach County Courthouse, Judge Laura Johnson, for those interested in showing their support.