Law Commons^™

Resurrection Of The Prohibition On The Corporate Practice Of Medicine: Teaching Old Dogma New Tricks, Andre Hampton

Faculty Articles

The corporate practice of medicine doctrine was a creature of the organized medical profession, state legislatures, and the courts in an effort to both protect the physician-patient relationship and help physicians operate as fiduciaries. It aimed at improving the reputation of the medical profession by prohibiting entanglements between a physician’s professional judgment and the profit-making endeavors of lay organizations. The doctrine found its genesis in ethical codes promulgated by the American Medical Association (AMA), which essentially prevented physicians from taking salaried positions, or splitting professional fees, with lay organizations. The rationale was that such a doctrine was necessary in order …

Changing The Nature Of Corporate Representation: Attorney Liability For Aiding And Abetting The Breach Of Fiduciary Duty Comment., Stanley Pietrusiak Jr.

St. Mary's Law Journal

In 1983, the American Bar Association (ABA) comprehensively defined corporate counsel’s ethical duties in situations where a corporate officer engages in conduct which could substantially harm the organization. In such cases, the nature of the corporate attorney’s duties depends on whether the officer’s conduct is illegal or whether the officer made a policy decision which falls short of illegality. Rule 1.13 of the Model Rules of Professional Conduct imposes the duty on corporate counsel to take steps to stop corporate officers from engaging in illegal conduct which is likely to result in substantial injury to the organization. Conversely, counsel is …

See No Evil - The Role Of The Directed Trustee Under Erisa, Patricia W. Moore

Faculty Articles

Just before ERISA's passage, Congress added a provision allowing a sponsoring employer to use a "named fiduciary" – usually one or more of the employer's officers – to direct the trustee. In that case, the trustee is to "be subject to proper directions of such fiduciary which are made in accordance with the terms of the plan and which are not contrary to this Act." Such a trustee is commonly called a "directed trustee."

After ERISA became law, commentators immediately observed that section 403(a)(1) generated more questions than answers. For instance, is a directed trustee a "fiduciary" at all? Does …

Erisa: Anti-Alienation Superiority In Bankruptcy, George Lee Flint Jr

Faculty Articles

Both ERISA and the Bankruptcy Code consider the issue of debtor-participant’s interest in certain pension trusts when an action has been undertaken against the bankrupt debtor participant’s estate. Many jurisdictions have offered conflicting views on the handling of the interest. These conflicts create litigious interpretation and choice of law problems and place plan administrators at risk for breach of fiduciary duty depending on jurisdictional interpretation. Paying-out a bankruptcy trustee’s turnover demand could affect the tax qualified status of the pension plan, thereby hurting all plan participants. ERISA’s preemption provision was drafted to create uniformity among the states in interpreting employee …