Indemnification Agreements with Medicare

Question: Should a lawyer sign an indemnification agreement with respect to Medicare reimbursement claims?

Answer: There are 8 states that will not permit attorneys to sign indemnification agreements.

Following these eight state ethics rules, attorneys in those states cannot agree to indemnify. The best attorneys can do is have their clients indemnify. The states are North Carolina, New York, Illinois, Indiana, Kansas, Missouri, Arizona and Florida, all of whose ethics bar committees have opined that attorneys signing hold harmless agreements along with their clients is a violation of Model Rules 1.8(e), creating an impermissible conflict of interest, in violation of Model Rule 1.7(a). The ethics opinions are building up. While we cannot opine on such matters, knowing there are 8 hot button states will help us to avoid unpleasant circumstances.

• Illinois State Bar Assn Op. No. 06-01, July 2006 WL 4584284
• Indiana State Bar Assn Op. No. 1 of 2005
• Kansas State Bar Assn Legal Ethics Op. KBA 01-05 (May 23, 2002)
• North Carolina State Bar Ethics Op. RPC 228 (July 26, 1996)
• Advisory Committee of the Sup. Ct. Missouri, formal Op. No. 03-05, 2003
• Florida Bar Ethics Op. No. 70-8, Revised (April 23, 1993)
• New York City Bar Inquiry Reference No. 10-12 (June 1, 2010)
• North Carolina RPC 228 (prohibiting lawyers from agreeing to personally indemnify the insurance company for unpaid liens.)
  • RPC 228 quotes Rule 5.1(b). That rule is now 1.7(a), which provides that a lawyer whose personal interest is adverse to the client has a conflict of interest.

If an attorney agrees to be personally liable and later Medicaid sues the attorney based on the indemnification, you may have a legal claim against your client.