The effect of the Act is to deprive many citizens, who are not wealthy enough to purchase insurance or otherwise provide for long-term care, of lawful advice and counsel. This provision was incorporated into Section 217 of the Health Insurance Portability and Accountability Act of 1996, which was subsequently repealed. That was followed, however, by the proposed Section 4734, which shifted the criminal penalties to any person who was paid to advise an elderly client. The analysis warned that, to the extent Section 4734 would prohibit counseling about legal activities, a court would likely declare it unconstitutional. Nonetheless, Congress enacted Section 4734 burying it within the massive reforms contained in the Balanced Budget Act of 1997.
Lawyers are ethically committed to providing advice when questioned by our clients.
Accordingly, this legislation can not stand. It is a dangerous precedent for other potential restrictions on the freedom of speech, the right to counsel, and the attorney-client relationship. Nixon Hargrave is the largest law firm in the state outside of New York City. G. Robert Witmer, Jr., of Rochester, a partner in the firm and a former state bar president, is lead counsel. This lawsuit marks the first time in its 121-year history that the state bar has filed suit against the federal government.