2017 Sutin, Thayer & Brown Conference

2017 Sutin, Thayer & Brown Conference

Fact Pattern One

During the 1940’s and through the 1960’s, the United States Indian Health Service was faced with a tuberculosis epidemic among adult Navajos living on the Reservation. The tuberculosis organism on the Navajo Reservation was resistant to any existing medication and the IHS turned to a risky experimental treatment. As part of its “swords into plowshares” programs concerning the use of atomic energy, the Atomic Energy Commission in conjunction with the IHS developed a plutonium implant to fight disease. The AIC and the IHS decided to secretly test this treatment on the Navajo Indian population. The treatment was disastrous and by the time it was withdrawn thousands of former Navajo tuberculosis patients had died, or were dying, as a result of the radiation treatments.

When the secret medical experimentation was publicly revealed in the 1980’s, and outraged Congress eventually passed the Medical Experimentation Reparations Act (MERA) which provided compensation to the victims and surviving spouses of any unlawful governmental medical experimentation, including the AEC/IHS radioactive tuberculosis treatments. Claims detailing the medical history of victims were required to be submitted to the United States for review and approval before any compensation was paid. The standards for eligibility were stringent and many surviving spouses found themselves barred from receiving compensation. Congress later amended MERA to broaden the eligibility standards and many of the spouses previously denied compensation were given the right to have their application reconsidered by the United States.

Billy Ghana is a non-Indian attorney, licensed in New Mexico, who opens an office in Chinle, Arizona. Ghana is aware that there are many Navajo tuberculosis experimentation victims and surviving spouses in the Chinle area and determines to establish a practice specializing in MERA compensation claims because of the generous attorney fees provisions in the Act. Using a New Mexico license as the basis for his application, Ghana takes and passes the Navajo Nation bar exam and becomes a licensed member of the Navajo bar. He then begins advertising in the Chinle area as a MERA specialist.

Navajos who believe they have MERA claims are soon flocking to Ghana’s office. Ghana takes the pertinent medical records, organizes them and sends them to the United States for processing. He does not however sign any retainer agreements with the clients and does not send the clients letters outlining the status of their case. Within one year, Ghana has opened 1400 separate MERA cases. After a lengthy review process, all but a handful of the applications are rejected by the United States as ineligible. Ghana places the notices of administrative determination in each client’s file, but does not send a letter to the client nor does he file any appeal. The case files are placed in storage by Ghana for several years and during this time Ghana sends no letters to his clients believing that the cases are either being processed by the US or are somehow dormant. After the MERA amendments are adopted by Congress, Ghana re-submits some, but not all, of the applications to the US, but does not send his clients letters informing them of the re-submission.

About five years after opening his practice in Chinle, Ghana is indefinitely suspended from practice in New Mexico. Ghana does not inform the Navajo Nation Bar Association of the suspension and continues to take new MERA cases. Many of the cases resubmitted under the MERA amendments are determined to be eligible for compensation benefits, and the US Department of Justice sends letters to Ghana asking him to obtain his clients’ signatures on a release so that the compensation awards may be paid to them. Ghana fails to inform his clients of the new decisions and does not send them the release forms, wanting to be sure of receiving his attorney fees award before the compensation award is paid to his clients.

At about this time, Ghana closes his Chinle office and moves to Navajo Mountain, Utah, where he continues to take cases as a licensed member of the Navajo Nation Bar. Before leaving the Chinle area, Ghana attaches a notice to his door advising his clients that he can be reached through a post office box address at Tonalea, Arizona. The clients’ files are left in storage at a facility in Many Farms, and Ghana pays the storage fees for one year in advance.

Has Ghana committed any violations of the Navajo Nation Rules of Professional Responsibility and, if so, what are they? For extra credit, can you identify any potential violations of Navajo statutory law? Do you have any practice tips for Ghana?