Climate Change Project

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Undetected Legal Problems

These are situations in which the legal risk has already occurred but the client is not aware of the problem. Income tax law changes are perhaps the most common source of mature but undetected legal problems. If Congress has changed the record-keeping requirements to claim a deduction and a client is unaware of the change in the law, he or she may lose the deduction for a year or forever.

Detecting problems such as this one is an unalloyed benefit because of the near certainty that the client's failure to comply will be detected and penalized. Some problems, however, may not result in legal penalties. For example, many states make it a crime for physicians to receive incentives to influence their decisions about their patients. (See Chapter 9.) Nevertheless, many physicians receive potentially illegal incentives from hospitals and managed-care plans. A preventive law audit would indicate these incentives as a potential legal problem.

Once a legal problem has been identified, it becomes more dangerous to ignore. Conduct that was negligent when done unknowingly becomes intentional or reckless once the physician is notified that the behavior is questionable. This does not mean that ignorance is defensible. Physicians who violate the law can be prosecuted irrespective of whether they know the specifics of the law that they break. The constitutional requirement is that the law be specific enough to define illegal behavior clearly, not that defendants be on notice that they are breaking the law. In this case, the physician must decide whether it is worth the risk of continuing to receive what could be characterized as an illegal bribe.

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