RESOLUTION URGING THE REPEAL OF SECTION 1320a-7b(a)(6)
OF TITLE 42 OF THE UNITED STATES CODE

WHEREAS, in 1996, Congress enacted Section 1320a-7b(a)(6) of Title 42 of the United States Code, which provided that a person who knowingly and willfully disposed of assets in order to obtain Medicaid eligibility for long term care was liable for a criminal fine and/or imprisonment, if the disposition of assets results in the imposition of a period of ineligibility for such Medicaid benefits;

WHEREAS, in 1997, Congress amended Section 1320a-7b(a)(6) of Title 42 of the United States Code to transfer the imposition of criminal sanctions from those persons disposing of assets to those, such as lawyers and accountants, who advise them for a fee;

WHEREAS, there are serious constitutional concerns raised by legislation that purports to make it a crime to counsel clients about an act which is not itself a crime;

WHEREAS, Rules 1.1 and 2.1 of the Rules of Professional Conduct require that a lawyer, in representing a client, provide competent representation and exercise independent professional judgment and render candid advice;

WHEREAS, Section 1320a-7b(a)(6) of Title 42 of the United States Code creates a conflict between a client's right to know about legally permissible Medicaid planning and a lawyer's concern about incurring criminal liability for giving such advice;

WHEREAS, on December 4, 1997 the New York State Bar Association filed a lawsuit in the United States District Court for the Northern District of New York seeking a declaration that Section 1320a-7b(a)(6) of Title 42 of the United States Code is unconstitutional under the First and Fifth Amendments to the United States Constitution;

WHEREAS, the American Bar Association Commission on Legal Problems of the Elderly has proposed that the ABA House of Delegates call for the repeal of Section 1320a-7b(a)(6) of Title 42 of the United States Code when it convenes in August 1998;

NOW, THEREFORE, BE IT RESOLVEDthat the Philadelphia Bar Association supports and encourages the repeal of Section 1320a-7b(a)(6) of Title 42 of the United States Code;

AND BE IT FURTHER RESOLVEDthat the Chancellor is hereby authorized to communicate this position of the Association to the appropriate legislators and legislative bodies.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: March 26, 1998