The focus of white-collar defense at private law firms shifts depending on the enforcement priorities of federal prosecutors. Without prosecutors to bring cases, there’s no need to hire lawyers to defend against them.
And things seem to be looking up for medical fraud defense lawyers. At the American Health Lawyers Association, membership in the fraud and abuse practice group has grown 8 percent over the last five years, to 2,341 attorneys.
And Chicago may be the place for new fraud defense lawyers to hang their shingle.
The Chicago U.S. Attorney’s Office is creating a new unit to prosecute health care fraud, a move that tantalizes the city’s white-collar defense lawyers with the promise of more work.
Assistant U.S. Attorney Heather McShain will lead the team of five prosecutors, and Assistant U.S. Attorney Stephen Chahn Lee will serve as the unit’s Senior Counsel.
“What the (U.S. Attorney’s Office) is doing is putting folks on notice that it’s a big deal,” said Deborah Gersh, co-chair of the health care practice at Ropes & Gray. “I do think there’s going to be greater emphasis on firms building out their health care and government enforcement combined practice. We’ve been doing that for years – in other cities and would expect to see that here as well.” The firm boasts of more than 60 attorneys in offices across the United States represent virtually every sector of the global health care industry,
The new unit “sends a message,” that health care fraud remains a priority for the office, said Nancy DePodesta, a partner at Arnstein & Lehr and former assistant U.S. attorney. Since 2015, the Chicago firm has brought on four attorneys, including her, who have experience either with False Claims Act cases or with representing doctors before the Illinois Department of Financial & Professional Regulation.
Lisa Noller, chair of the white-collar defense practice at Foley & Lardner, said responding to government enforcement in health care fraud cases is a “booming business” for her. It’s the result of better coordination between three government agencies – the DOJ, Centers for Medicare & Medicaid Services, and U.S. Department of Health & Human Services – combined with prosecutors who’ve devoted their careers to this area of law.
Whether the new DOJ Chicago unit will translate into new work for white-collar lawyers fluent in health care will depend on the resources it receives, said Noller, who was an assistant U.S. attorney before joining Foley seven years ago. It will also depend on the complexity of the cases prosecutors pursue, and the size and finances of the defendants they charge.
This report published in Crain’s Chicago Business is consistent with a common and not necessarily apocryphal lawyer joke that portrays a solo practitioner starved for business in a small town until a second lawyer arrives – and then they both prosper.