A Search for Professionalism

1. A Search for Professionalism • GAHA, Bob Miller, May 16, 2014 • The admirable & lofty statements of A Lawyer’s Creed & Aspirational Statement on Professionalism seem irrelevant to the intent-driven Anti-Kickback Statute or to thescienter-freeStark law.

2. Professionalism Through Two Prisms • The Prism of a Long Ago Trial • The Prism of Health Law • These provide “a forum in which lawyers…can…reflect upon the fundamental premises of lawyer professionalism—competence, civility, integrity, and commitment to the rule of law, of justice and to the public good.” [Professionalism CLE Guidelines]

3. Professionalism Through the Prism of a Long Ago Trial • Bear with me; lots of details in this story that took place before most of you were born. • Holmes v. Danner, Federal court, Athens, December 1960, before Judge William Augustus Bootle (Middle District of Georgia) • The Witnesses: Walter Danner, Registrar of UGA; Omer C. Aderhold, President of UGA; Harmon W. Caldwell, Chancellor of the University System of Georgia

4. Long Ago Trial: Counsel • For the Plaintiffs, Hamilton Holmes & Charlayne Hunter: Donald L. Hollowell, Constance Baker Motley, Horace Ward & law clerk, Vernon Jordan • For the Defendant, Walter Danner:B.D. “Buck” Murphy, E. Freeman Leverett& James Therrell (Office of the Georgia Attorney General) • Lawyer Murphy was Sen. Herman Talmadge’s personal attorney.

5. Long Ago Trial: Background • Gov. Vandiver’s 1959 “no, not one” speech: • “We have no thought of surrender…We will not capitulate. I make this solemn pledge. When I am your governor, neither my three children, nor any child of yours, will ever attend a racially mixed school in the state of Georgia. No, not one.” • Jesse Hill, Jr.’s committee selects Hamilton Holmes & Charlayne Hunter to desegregate public education in Georgia.

6. Long Ago Trial: Background • Holmes & Hunter reject Georgia State. • Holmes, forefinger pointing north, “I think I would like to try over there. The university, that’s where I want to go.” Hunter: “Me, too.” • Hunter: one reason Holmes picked UGA was his interest in the Bulldog football team. • Not the first or the last person to attend UGA for that reason.

7. Applying to Georgia • Early July, 1959: a black person picks up two applications at the UGA Registrar’s office. • July 15: High school transcripts of Holmes & Hunter arrive at Registrar’s office. • July 16: President Aderhold writes Registrar Danner that no housing would be available until at least September 1960. The “no housing”defense is born. • July 22: The Holmes & Hunter applications arrive at UGA.

8. Applying to Georgia, #2 • All correspondence with the two applicants is blind copied to an Assistant Attorney General in Atlanta. • Hunter rejected due to lack of housing, but white women admitted. • Chancellor Caldwell writes Aderhold about full coed dormitories: “I...indicated you are relying on this to bar admission of a Negro girl from Atlanta.” • Holmes rejected for Jan. 1960 quarter due to lack of housing & non-receipt of his Morehouse transcript.

9. Applying to Georgia, #3 • Young, white Miller admitted for January 1960, without a transcript & a dorm room found for white Miller. Imagine that! • Board of Regents, 1959, imposes an interview requirement for admission to a University System college. • Miller had no interview & never met a white person who had an interview. • Hunter passes her interview (but still faces the “lack of housing for women” defense).

10. Registrar Danner interviews Hamilton Holmes • The questions, Judge Bootle wrote, “had probably never been asked of any applicant before.” • “Have you ever attended inter-racial parties?” “Do you know about the red light district in Atlanta?” “Have you ever attended houses of prostitution?” • “Have you ever been arrested?” Holmes did not mention a traffic ticket & thus “flunked” his Walter Danner interview.

11. The Trial: The State’s Position • State could no longer argue segregation was legal. • Judge Bootle on the State’s position: “Defendants contend that there has been no discrimination and that the applications have been handled in all respects the same as the applications of white students similarly situated.”

12. The Trial: President Aderhold testifies Lawyer Murphy: “...as President of The University of Georgia...do you know of any policy...to exclude students on account of their race?” Aderhold: “No sir, I do not.” Murphy: “Do you know of any policy to discriminate against Negro applicants?” Aderhold: “I do not.” Murphy: “Have their applications, so far as you know, been considered on the same basis as the applications of white people?” Aderhold: “On exactly the same basis, as far as I know.”

13. The Trial: Aderhold testifies When Aderhold testified, he and the state’s lawyers knew— (1) the Attorney General’s office had been blind copied on all correspondence relating to the two applications; (2) Aderhold had tightened university housing policy one dayafter the Registrar’s office had received the Holmes & Hunter transcripts; (3) Chancellor Caldwell had confirmed the housing ploy in a note to Aderhold; (4) no student had ever been rejected due to a traffic ticket; and (5) Georgia had a long-standing policy of not admitting African-American applicants.

14. The Trial: Danner, Caldwell & Their Lawyers • Danner described how Hunter flunked his “required” interview. Then Danner, an obvious segregationist, answered “yes” when asked if he would favor the admission of a qualified black person. • Caldwell did not impress Judge Bootle when he attempted to pirouette around his note that made it clear the housing ploy had been adopted to deny admission to Hunter. • The state’s lawyers filed a brief with the court that denied “the existence of any policy, practice or custom of limiting admission to The University of Georgia to white persons.” (!!!)

15. Professionalism Took a Holiday in December 1960 • The State’s lawyers and witnesses had to know the witnesses were lying. Is it OK to do that when defending a “way of life”? Is there an exception to the duty of professionalism for some allegedly higher principle? Where was the State Bar? Where was the State Supreme Court? Why didn’t the U.S. Attorney indict the witnesses for perjury and the lawyers for aiding and abetting? • What must the witness preparation sessions have been like? • Lawyers & witnesses affirmatively attempted to mislead the court, & nobody did anything about it.

16. Professionalism on Holiday,#2 • 1908 ABA Canons: “It is unprofessional …to deal other than candidly with the facts.” “The office of attorney does not permit…any manner of…chicane.” • Karl Llewellyn: “You must represent your client to the best of your ability, and yet never lose sight of the fact that you are an officer of the court with a special responsibility for the integrity of the legal system. … [T]hose … duties do not sit easily with one another.” • Professionalism is the most important when there are great pressures to do something that is not professional. Holmes v. Danner shouldeverremind us what not to do.

18. Professionalism Through the Prism of Health Law: Professionalism and Stark • Absurd results are common under the Stark Law. • Absurd results make it difficult to comply with the General Aspirational Ideals by “being the moral voice of the public to clients in counseling.” • Particularly true when an absurd result costs your client many $$$.

19. Miller’s Favorite Stark Absurd Result Dr. Oswald Crick refers Medicare patients to a home health agency (“HHA”). The HHA bills Medicare for services to those patients. Bertha Boatright conducts nurse training for 6 hours per month for HHA for $125/hour, under an oral contract. Personal services contract exception not met.

20. Stark Absurd Result, #2 • Bertha Boatright married to Frank Crick for 13 years. • Dr. Oswald Crick and Frank Crick have not spoken for 25 years. • Oswald does not know Bertha is his sister-in-law. Bertha does not know she is Oswald’s sister-in-law. HHA does not know Bertha is Oswald’s sister-in-law. Stark violated.

21. Guiding Corollaries of Professionalism • First: The Race for the Bottom • Symptoms: watch out for “more aggressive”, “very proactive”, “forward thinking”, “less risk averse”. • The Cure: If you are not prepared,if need be, to walk away from or be fired by your client, then at some point you will do that client and the legal profession a disservice.

22. Guiding Corollary #1: The Race for the Bottom • Tuomey: Hospital counsel #1—physician contracts OK under Stark. Hospital counsel #2—got some reservations. Hospital counsel #3—physician contracts OK under Stark. • Someone should have said, “If we have to go through this many lawyers to get the answer we want, we probably have a professionalism problem under TheRace for the Bottom Corollary.” • A professional will always lose the Race for the Bottom.

23. Guiding Corollary #2: The Smell Test • Hospital client has obtained consultant’s favorable FMV opinion for physician contracts that contain Tuomey-like terms, such as (i) part time employees with full time benefits; (ii) ten-year employment contracts; (iii) hospital provides malpractice coverage at no cost for all their professional work; (iv) overall compensation for these part time employees =130%+ of the physician fees collected for procedures performed by the physician part time employees. • These provisions + a favorable fair market value opinion? The Smell Test Corollary is the first thing that should pop into a health lawyer’s mind.

24. Guiding Corollary #2: The Smell Test • No matter the level of mental, linguistic and doctrinal gymnastics gone through to make this deal “fit” a Stark exception, the olfactory gland screams to the health lawyer’s brain, “This deal flunks the Smell Test Corollary. Do not advise the Hospital’s Board of Trustees that this deal is OK under Stark.” • The Smell Test Corollaryalso works in court: “Should I make an argument I think is wrong, but I think the court might buy it?”

25. Professionalism Through the Prism of Health Law: The AKS & Kansas City • File notes made by indicted counsel: “I don’t look good in stripes.” “A clean-up deal.” • In acquitting the two indicted attorneys, the court said they “steadfastly maintained to their clients that if fair market value was paid…for legitimate consulting services, the relationship passed legal scrutiny. Nothing in the evidence or the law suggests otherwise.” (!) • Did not all counsel have a professional obligation to rise up and correct the court? “Do not acquit my client if that interpretation of the Anti-Kickback Statute is the reason for the acquittal, Your Honor.”

26. Criminal Law Advising in the AKS Doctrinal Morass • “a purpose”, “one purpose”, “at least in part” must be to induce a referral [Greber and its progeny] • “induce” defined using “intent”: induce means “an intent to exercise influence over the reason or judgment of another.” [Hanlester] This makes the AKS a “double intent” statute—whatever that means.

27. Criminal Law Advising in the AKS Doctrinal Morass, #2 • “mere encouragement would not violate the statute.” [Hanlester] • Cannot convict defendants “merely because they hoped or expected or believed that referrals may ensue from remuneration that was designed wholly for other purposes.” [McClatchey]

28. Criminal Law Advising in the AKS Doctrinal Morass, #3 • How does a health lawyer “offer faithfulness, competence, diligence and good judgment” [Lawyer’s Creed] when— • It is a crime to offer or pay remuneration with “one purpose” or “a purpose” of inducing a referral, BUT • It is not a crime to offer or pay remuneration and at the same time encourage a referral, AND • It is not a crime to hope, to expect or to believe that referrals will result from a remuneration arrangement that was done for a purpose other than to induce referrals?

29. The Ultimate Unprofessional Act • Ajay Mathew Thomas at Harvard Law School applies for 23 federal clerkships. Alters his transcript to change some B’s to A’s. Caught. • Dismissal hearing: Mr. Thomas fabricates emails and a report from a computer forensics firm. Expelled, but HLS notes as a mitigating factor that he was a co-founder of the HLS Society of Law & Ethics. • Ajay Mathew Thomas changes his name to Mathew Martoma, gets MBA from Stanford, & becomes hedge fund manager. • 2014: Mathew Martoma convicted of insider trading & Stanford revokes his MBA.

30. The Ultimate Unprofessional Act, #2 • The Moral of the Story: • If you are going to commit a major breach of your duty of professionalism, you need to be conversant with O.C.G.A. §19-21-1.(Change of Name)