On Monday night, the General Counsel of New Jersey-based publicly-traded Quest Diagnostics, Inc. (“Quest“) was named in a motion before the New Jersey Appellate Division that seeks to disqualify him from further representation of Quest due to his alleged approval of, and payment for, a bogus criminal complaint made against a Quest patient in a pending civil action against the international diagnostics laboratory company–instead of simply responding to the Quest patient’s repeated requests for his own medical records as required by the federal statute commonly known as “HIPAA,” the Health Insurance Portability and Accountability Act, and multiple parallel provisions of state law.
The motion (Docket No. A-002115-21T (AM-000367-21) (N.J. Super. App. Div)) states that Mr. Prevoznik and Quest apparently heeded the unethical counsel of Bressler Amery & Ross’s Shareholder Michael Hensley and authorized, and paid for, an attempted weaponization of the N.J. Attorney General’s Division of Criminal Justice by submitting “a shameful, bogus, and unethical criminal complaint against the 72-year-old stroke victim and Quest patient rather than simply provide him his own medical information” in abject violation of N.J. Rule of Professional Conduct 3.4(g), which prohibits use of criminal law enforcement authorities to influence pending civil litigation (See attached motion and appendix of cited documents). Due to Mssrs. Prevoznik and Hensley’s alleged conspiracy to defame the Quest patient and spark a baseless criminal prosecution against him in their joint effort to extinguish the civil action, the motion asserts that the Quest Attorneys must be disqualified because “their joint desire to avoid the inevitable finding that their unethical criminal complaint was improper constitutes a non-consentable conflict of interest that deprives Quest of unbiased legal counsel regarding this litigation that would have otherwise ended years ago; instead, the Quest Attorneys improperly advance their own personal interests and thereby needlessly impose additional and ever increasing burdens on the Appellate Division and Superior Court while causing Quest to inexplicably disavow its undeniable obligations to provide patients access to their own medical records and billing statements.” See Memo. from Michael T. Hensley to N.J. Att’y Gen’l Div. of Criminal Justice’s Chief of Detectives William F. Fredrick, Jan. 28, 2020, at 2 (stating that Hensley had Quest’s approval to “assist/cooperate . . . in any way possible” in the criminal prosecution of the opposing party in a pending civil action).
The motion further contends that “[o]n
ce Quest has independent counsel, Quest will then be free to decide upon the litigation conduct that best benefits Quest itself by securing a quick, efficient, and just resolution of the action as opposed to the existing feverish, scorched-earth, wasteful, and futile faux defense of a defenseless case that is driven solely by Mssrs. Hensley’s and Prevoznik’s desperate effort to evade disciplinary action, malpractice claims, and likely termination of employment and partnership at each attorney’s respective workplace. All to the continuing detriment of the state and federal judiciaries, Quest, and Quest’s patients and in abject defiance of the U.S. Department of Health & Human Services’ clear edict that “[a]ccess to your health information is your right. Having access to your health records is a powerful tool in staying healthy. With access to your health information, you can make better decisions with your doctor, better track your progress and do more to be healthy. The Health Insurance Portability and Accountability Act, or HIPAA, for short, gives you the important right to see and get copies of your health information.” “Health Information Privacy,” U.S. Dep’t Health & Human Svcs. website (www.hhs.gov) (emphases in original).
The motion references—as purported evidence of the non-consentable conflict created by Mssrs. Hensley’s and Prevoznik’s criminal complaint–the public reports
in which lawyers have lost jobs as both a Chief Legal Counsel and Partner
where they had merely possibly engaged
in unethical activity. Morgan Stanley Dean Witter’s Chief Legal Officer Christine Edwards, for example, left her position after it was reported that Morgan Stanley had improperly communicated with the Manhattan District Attorney’s Office in the bank’s reported effort to facilitate a criminal prosecution of an employee who had filed a pending civil action against the bank
“Morgan Stanley’s Top Lawyer Draws Scrutiny in Curry Case,” Wall St. Jrn’l
, June 4, 1999 (wsj.com
); “Morgan Stanley’s Top Lawyer Quits,” N.Y. Post
, June 11, 1999 (www.nypost.com
) (stating that even though the Chief Legal Office was reportedly “cleared by outside counsel,” the incident had “happened on her watch”). And mergers and acquisitions attorney Gordon Caplan was reportedly let go as Co-Chairman of the law firm Willkie Farr & Gallagher for alleged involvement with the “Varsity Blues” college admissions scandal. See
“College Admission Scandal’s Other Big Names Are Titans in Finance and Law,” N.Y. Times
, Mar. 14, 2019 (www.nytimes.com
Stephen J. Simoni, Esq., C.P.A., R.N.
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