Attorneys Ethical Considerations in Structured Settlement Cases

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1 presented by Attorneys Ethical Considerations in Structured Settlement Cases Martin Jacobson, Esq NSSTA Annual Meeting Washington, DC

2 Exercising Independent Professional Judgment New York Rules of Professional Conduct: RULE 2.1: ADVISOR In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, psychological, and political factors that may be relevant to the client s situation. Isolating the relevant language of the rule in the context of a potential structured settlement we have the following: In representing a client, a lawyer shall exercise independent professional judgment... [i]n rendering advice [regarding] other considerations such as... economic... factors that may be relevant to the client s situation.

3 Exercising Independent Professional Judgment New York Rules of Professional Conduct: ETHICAL CONSIDERATIONS Does a plaintiff attorney who accepts the defense broker s proposals without retaining his/her own expert violate Rule 2.1? How does the plaintiff attorney know whether the defense broker shopped the market for the most competitive quotes (within the range of acceptable life companies)? Has defense broker adequately spread the annuity risk? Has defense broker maximized the statutory protection afford annuities? Have rated ages been obtained from ALL acceptable life markets? Does the Structured Settlement broker have the required undivided loyalty to his/her client? Does a plaintiff attorney who does not employ his/her own expert satisfy the requirement to exercise independent professional judgment as required by Rule 2.1?

4 The Right to Independent Representation NY Structured Settlement Protection Act GOL Section Initial disclosure of structured settlement terms In negotiating a structured settlement of claims brought by or on behalf of a claimant who is domiciled in this state, the defendant or defendant s legal representative shall disclose in writing to the claimant or the claimant s legal representative all of the following information that is not otherwise specified in the structured settlement agreement: (a) the amounts and due dates of the periodic payments to be made under the structured settlement agreement. In the case of payments that will be subject to periodic percentage increases, the amounts of future payments may be disclosed by identifying the base payment amount, the amount and timing of scheduled increases, and the manner in which increases will be compounded; (b) the amount of the premium payable to the annuity issuer; (c) the nature and amount of any cost that may be deducted from any of the periodic payments; (d) where applicable, that any transfer of the periodic payments is prohibited by the terms of the structured settlement and may otherwise be prohibited or restricted under applicable law; and (e) a statement that the claimant is advised to obtain independent professional advice relating to the legal, tax and financial implications of the settlement, including any adverse consequences and that the defendant or defendant s legal representative may not refer any advisor, attorney or firm for such purpose.

5 Who Is In Control? Historical View = Defendant Flow Chart of a Pre 1983 Structured Settlement without a Qualified Assignment Plaintiff Future Periodic Payments Cash + Promise of Future Periodic Payments Settlement Agreement and Release Annuity Contract Life Insurance Company Defendant Cash

6 Historical View = Defendant Prior to 1983: Defendant owed future periodic payments to plaintiff without a novation. Defendant owned annuity contract. Defendant was the guarantor of Life Insurer. Some defendants (as accrual basis taxpayers) wrote off full future value of annuity payments. Some defendants received Service Fees or Administrative Fees from structured settlement brokers.

7 Evolving View = Plaintiff The 1983 Tax Code Change - As a Flow Chart Structured Settlement with a Section 130 Qualified Assignment Plaintiff Future Periodic Payments Life Insurance Company Cash + Promise of Future Periodic Payments Settlement Agreement and Release Annuity Contract Cash Financial Security for Plain1ffs Irrevocable guarantee of assignee s obligation to plaintiff Secured creditor status Irrevocable keep well Defendant (Assignor) Cash Liability to Make Future Periodic Payments Qualified Assignee IRC Sect. 130

8 Evolving View = Plaintiff Defendant has no future periodic payment obligation when a Qualified Assignment is executed. Defendant does not own the annuity it is owned by the Assignee. Defendant does not guarantee the Life Insurer the risk falls to the Plaintiff. Defendant should have no financial incentive to control annuity. - IRS closed acceleration loophole. - Service Fees and Administrative Fees are illegal rebates.

9 The Structured Settlement Partnership Both Sides Have a Legitimate Interest Plaintiff Derives a tax free benefit Has a plan that will last a lifetime Value of a structure is greater than defendant s cost Can t do it alone Helps achieve settlement Defendant Bears risk per UQA of reaquiring future payment obligation [if Section 130 (c) has not been satisfied] Cost to defendant is less expensive than value to plaintiff Can t do it alone Helps achieve settlement

10 Understanding The Value Of The Case New York Rules of Professional Conduct: RULE 1.1: COMPETENCE a) A lawyer should provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. b) A lawyer shall not handle a legal matter that the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it. c) A lawyer shall not intentionally: 1) fail to seek the objectives of the client through reasonably available means permitted by law and these Rules; or 2) prejudice or damage the client during the course of the representation except as permitted or required by these Rules.

11 Understanding The Value Of The Case New York Rules of Professional Conduct: PRIOR TO MEDIATION OR FIRST SETTLEMENT CONFERENCE An attorney who does not know the judgment value of his/her case is unprepared. A plaintiff attorney who does not know the value of his/her case cannot make a proper demand. A defense attorney who does not understand the judgment value cannot properly advise his/her client. A defense attorney who takes a Just Fight approach may violate Rule 1.1 (c).

12 Understanding The Value Of The Case New York Rules of Professional Conduct: STRUCTURED SETTLEMENT CONSULTANTS ROLE Evaluate life care plans. (Both Plaintiff s & Defendant s, if available) Compare cost to fund with economists present value calculations. Factor in range of non-economic damages. Factor in range of other potential damages, e.g. loss of consortium / household services / derivative claims, etc. What about periodic judgment analysis? Objective = To present dollar value / cost of best & worst case scenarios so attorney will be prepared. Q: Does an attorney who fails to avail himself/herself of these services violate Rule 1.1 (c)?

13 The Structured Settlement Affidavit a.k.a CORA Affidavit Key Point 1. No Payment or other financial consideration of any kind has/will be paid to anyone. To Ponder Reduced interest rate on attorney loans by broker s affiliated law suit financing company = rebate. Broker pays part or all of the fees associated with drafting SNT; or handling lien resolution; or doing an MSA; etc. = rebate.

14 The Structured Settlement Affidavit a.k.a CORA Affidavit Key Point 6.& 7. Disclosure of rated age & promise of no improper post settlement underwriting. To Ponder What if medical reports are delayed? How to handle? Key Point 8. No PV abuse. To Ponder Request (by either side) for inflated PV. How to handle? Key Point 10. No factoring involvement by broker. To Ponder The legitimate need / emergency. How to handle?

15 The Structured Settlement Affidavit a.k.a CORA Affidavit

16 The Structured Settlement Partnership Good Attorney Ethics Accomplished With Broker Participation: Helps bring both sides together. Avoids disputes that could undermine settlement. Accomplishes plaintiff's goal of adequacy of settlement. Accomplishes defendant s goal of efficiency & finality. Promotes our industry via recognition that structured settlement professionals are needed to enable attorneys to ethically provide their professional services.

17 About the Speaker Martin Jacobson, Esq. Martin Jacobson Vice President & General Counsel, Creative Capital Inc. Marty is a licensed attorney in New York (1975) and New Jersey (1979) with extensive trial experience in both the state and federal courts. A renowned lecturer on structured settlements and periodic judgments, Marty regularly presents seminars to the bench, bar association groups and law firms. Marty negotiates structured settlements for Creative Capital s clients and is an expert on the subject of periodic judgments.

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