The 4th DCA ruled that people charged with patient brokering can’t argue that their lawyers advised them that what they were doing was legal. It’s a win for Dave Aronberg’s crackdown on the county’s illicit drug treatment industry.
WEST PALM BEACH – Scores of people ensnared by Palm Beach County State Attorney Dave Aronberg’s efforts to curb the area’s opioid epidemic won’t be able to beat criminal charges by claiming they got bad advice from their attorneys, an appeals court ruled Wednesday.
In a decision that lifts a legal cloud that threatened to ravage Aronberg’s crackdown on the county’s illicit drug treatment industry, the 4th District Court of Appeal ruled that dozens of people charged with patient brokering can’t drag their attorneys into court to testify that they advised their clients that what they were doing was legal.
“As a matter of first impression, we hold that ‘advice of counsel’ is not a defense to the general intent crime of patient brokering,” Judge Jonathan Gerber wrote on behalf of the three-judge panel.
Aronberg cheered the West Palm Beach-based court’s decision to throw out Palm Beach County Circuit Judge Laura Johnson’s ruling that paved the way for nearly 90 people to blame their attorneys for their legal woes – a defense prosecutors said was almost certain to lead to their acquittals.
“The appellate court got it right,” Aronberg said in a statement. “Ignorance of the law is not a defense to patient brokering.”
He noted that Johnson’s February ruling, along with misgivings expressed by other circuit judges, had forced his office to put more than 10 of its patient-brokering cases on hold.
“Now, we can finally take these cases to trial and hold accountable those who committed fraud and abuse in the drug treatment and sober home industries,” Aronberg said.
However, Aronberg’s renewed prosecution of patient-brokering cases may be short-lived.
Attorney David Frankel, who represents a 57-year-old Boca Raton man charged with more than 100 counts of patient-brokering, said he plans to ask the appeals court to reconsider its decision. Failing that, he said he will appeal to the Florida Supreme Court.
“While we respect the opinion of the court we disagree with its ruling,” Frankel said in a statement. “Denying all healthcare providers in Florida the ability to rely on the advice of their attorneys will lead to even greater confusion in an area of law that is already very confusing.”
His client, James Kigar, is charged in connection with his operation of Whole Life Recovery treatment center in Boynton Beach.
Aronberg said Kigar can’t appeal the ruling until after he is tried.
Kigar, who Frankel described as “a very decent and honest person,” insists attorney Jeffrey Lynne told him he could pay sober home operators “case management fees” to send patients to his treatment center. As part of a legal malpractice case Kigar filed againsts him, Lynne, a former Boca Raton city attorney, has denied giving Kigar that advice.
Defense attorneys who represent others charged with patient brokering said the appeals court ruling is baffling.
“If you’re going to perform an intentional act and you were told it was okay, you should be able to tell a jury not only that I was told it was okay, but that my lawyer said it was okay,” said attorney Michael Salnick, who represents several men charged with patient brokering.
Stripping people of their right to explain to a jury that they thought what they were doing was legal is both unfair and illogical, Salnick said.
People charged with a variety of white collar crimes, such as wire fraud or money laundering, are allowed to argue that their actions were sanctioned by attorneys, he said. Patient brokering shouldn’t be treated differently.
“It requires thinking. It requires manipulation. It requires that you consider what you’re doing before you do it,” Salnick said. “People get legal advice. What good is it?”
The charge isn’t like assault, Salnick said. If someone attacks someone else, prosecutors don’t have to prove the accused knew what he was doing was wrong. In more complex schemes, such proof is required. Patient brokering should fall into that category, he said.
The appellate court’s ruling turns on technical legal theories and what the Florida Legislature intended when it passed the patient brokering act and how it meshes with federal law.
While Johnson ruled that prosecutors must prove that a person violated the patient brokering act “willfully and knowingly,” the appeals court disagreed. Therefore, it said, the advice of an attorney can’t be used as a defense.
Aronberg, who has made combating the county’s opioid crisis a priority of his administration, said the efforts of his Sober Homes Task Force has paid off and, despite the legal uncertainty about the patient-brokering cases, investigations and arrests have continued.
A Jan. 1 report from the county medical examiner showed opioid deaths dropped 42 percent from 2017 to 2018, plunging from 558 to 326.
Editor’s Note: This story has been updated to reflect that Palm Beach County State Attorney Dave Aronberg said more than 10 patient-brokering cases have been put on hold, not 10 percent.
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