A Dentist’s Guide to the Law. American Dental Association
• The purpose of the publication is to provide basic answers to frequently asked legal questions. Its focus is on issues confronting dentists and their dental teams in private practice. However, we believe that many of the questions and answers in this book will also be useful for dentists who work in different arenas of the profession, including education and research.
• The answers to the frequently asked questions are informational only, and not a substitute for legal advice. Laws change, and, even more importantly, legal advice requires a careful assessment of the facts of a particular situation, which is then measured against all applicable laws. We don’t have all the facts about cases you may be wondering about, and we are not experts in, or able to provide legal advice about, your state law. Indeed, we are not license to practice law outside of Illinois, and we cannot provide personal legal advice with respect to Illinois law, for that matter. We will give you as much information as we reasonably can, but you must consult your lawyer for legal advice.
• Our focus in this book is on federal law. The book references state law in general terms where appropriate, but it is important for you to turn to your state dental society or personal attorney — or perhaps your malpractice carrier — for specific federal, state and local legal information that may apply to you.
• Oftentimes, dentists will ask ADA attorneys questions such as “Should I sign this contract?”, “Should I join this plan?”, or “Should I fire my HIV-infected hygienist?” This book answers questions from a legal frame. It does not focus on “shoulds” in the sense of ethical, business, or practice considerations. By telling you what the law says, we hope you will have a better context for factoring in ethics and practice perspectives.
Which leads us to the first question:
1. How Should I Use This Book?
This book is a primer that supplies a baseline of legal information that can help you identify, frame, and think through some basic legal issues. While not a substitute for professional advice, think of the book as a way to help you avoid legal problems that might otherwise require you to retain counsel; when retaining a lawyer is appropriate, the book will likely help you and your attorney be more efficient and creative when confronted with dental-legal issues.
Related References and Resources
• Some Laws That Can Affect Dentistry
• Valuable Federal Government Websites
2. Will You Give Me a Referral to a Lawyer in My Area?
As a general rule, the ADA does not give lawyer referrals. The ADA does not maintain a listing of lawyers in your area who are (or who claim to be) qualified and sufficiently experienced to handle your legal matter. Lawyer referrals are more properly handled by your state or local dental or bar associations, which are more likely to know local counsel with the expertise you need. On rare occasions, when the issue involved is highly specialized and you are not able to find appropriate counsel, we may be able to identify lawyers reputed to have knowledge in the subject matter area relevant to your situation.
3. What Does a Dentist Need to Know to Select the Right Lawyer?
In a nutshell, you choose an attorney in somewhat the same manner that an attorney would select his or her dentist. The following is designed to help break down and organize the decision-making process.
Why Do You Need an Attorney?
The threshold question is: Why do you need the attorney? Any situation involving your legal rights and obligations is a situation that you should consider consulting with an attorney. Examples of such situations include:
• Purchase/sale of, or starting, a business (such as a dental practice)
• Real estate transactions
• Estate planning (wills, trusts)
• Family matters (divorce, adoption)
• Contractual matters (drafting, review of, disputes over)
• Governmental agencies (investigations, inspections, citations)
• Labor and employment matters
• Litigation (you are being sued or threatened with a lawsuit)
• Criminal matters (you have been arrested or accused of a crime)
Some attorneys practice more as generalists, while some practice in more specialized fields of law. An attorney who might be perfectly qualified to help you defend against an employee’s claim of retaliatory discharge may not be the best attorney to help you manage your legal obligations in case of a breach of HIPAA protected health information. Just as you would not go to a gynecologist if you were having migraines, you would not go to an attorney specializing in patents to review an office lease. Thus, to better direct your search, your first step is to understand (even in a broad manner) why it is that you need legal guidance.
Referral Sources
Personal and Professional Referrals. A simple way to start your search is to ask friends, relatives, coworkers, or other members of your community to recommend lawyers with whom they have worked, especially if those people have had legal concerns similar to yours. Professionals with whom you have a business relationship, such as health care professionals and businesspeople, can be helpful, particularly if they work in a field related to the type of law your case concerns. Keep in mind that even if a recommended lawyer does not practice the kind of law you require, she or he might be able to direct you to other reputable lawyers who do. Be careful, however, not to make your decision based solely on another person’s recommendation; the lawyer that is right for someone else’s case might not be right for yours.
• Organizations. Your state or local bar association may have a lawyer referral service. The American Bar Association’s directory of lawyer referral services can be found here: http://apps.americanbar.org/legalservices/lris/directory.
If the legal concern relates to your practice, your malpractice carrier might be able to provide you with some guidance in finding a local attorney who has dealt with similar cases.
Your state dental organization might be able to recommend an attorney. For example, the New York State Dental Association provides has an approved referral list of attorneys and law firms who specialize in dental matters. The list is available at www.nysdental.org/membership/subpage.cfm?ID=14.
• Online. If you are unsuccessful in obtaining a personal or organizational recommendation for a local attorney who practices in the substantive area you need, you may be able to locate such an attorney through an online search.
Due Diligence
The amount of work you will want to devote to assuring that you have selected the right attorney will likely be proportional to the importance and complexity of the matter. Are you selecting an attorney for your residential real estate closing? The attorney who coaches your daughter’s soccer team may do just fine, as might the attorney with an office in the nearby strip mall. Facing a government investigation and substantial fine due to a HIPAA breach? You will likely wish to make sure that your