I just received a copy of "Traps for the Unwary", 5th Ed., published by the Massachusetts Bar Association (to which I belong), and edited by Kevin G. Kenneally and James E. Harvey, Jr. I've gotten several of the previous editions and have long admired this work.
The Introduction explains that it is a compilation of some laws that will help attorneys recognize and avoid traps that may be lying in wait for them, and focuses mainly on general civil practice.
This is an excellent idea, and should be emulated by every Bar association, because there are such pitfalls in every jurisdiction. I am starting a category for this blog called "Pitfalls for the Unwary" to collect such laws that I come across. I am going to call them pitfalls, as the term "traps" to me implies an intent to catch prey. Maybe if I can gather a sufficient number of local pitfalls, it will be a catalyst for a similar Bar publication in this area.
Some of the Traps identified in the Mass. Bar Assoc. book are not limited to Massachusetts. Here is an example:
B. Medicare liens. Under federal law, the Medicare program is subrogated to claimant's cause of action or rights to recover under workers' compensation, automobile or liability insurance or against self-insurers. 42 U.S.C. 1395y(b), et seq.
See Traps, at p. 51. This is also noted in a section on settlements:
There may be liens on the recover a plaintiff receives in a personal injury case, for example, workers' compensation . . ., Blue Cross, welfare department, hospitals . . . , and prior attorneys . . . . Medicare liens on personal injury settlement proceeds are created automatically by regulation and do not require notice to the recipient or to counsel. 42 U.S.C. sec. 1395y(b), et seq. It is advisable to inform clients of the amount of the liens before settlement, so the clients can calculate their net recovery in order to make an informed decision on accepting the settlement offer. An attorney who charges a fee for negotiating liens, over the agreed upon contingent fee, may be committing a violation of the Consumer Protection Act against the client. Doucette v. Kwiat, 392 Mass. 915, 917, 467 N.E.2d 1374 (1984).
Traps, at p. 68.
That's food enough for thought for now.
For more on medicare liens, click here.