By: Christopher Parrella, Esq., CPC, CHC, CPCO

Parrella Health Law, Boston, MA

A Health Care Provider Defense and Compliance Firm

A published opinion on June 16th, 2026, from the U.S. Court of Appeals for the Sixth Circuit delivers one of the clearest warnings health care executives can receive about the limits of the advice-of-counsel defense. In United States v. Samuel Harris, the court affirmed a 30-month prison sentence for a medical marketer convicted of violating the federal Anti-Kickback Statute. The defendant had retained counsel, communicated with counsel frequently, and obtained a written memorandum concluding that his business model could operate lawfully. None of that protected him because the legal advice was based on incomplete and inaccurate facts.

Samuel Harris operated Secure Health, a medical marketing company that sent sales representatives door to door to persuade Medicare and Medicaid beneficiaries to undergo genetic cancer screening. Secure Health paid telemedicine providers to sign test orders, then sent the specimens to a laboratory that billed federal health care programs. The laboratory paid Secure Health on a per-patient basis. Secure Health also paid its sales employees and telemedicine providers based on the number of patients generated. The Sixth Circuit described the model plainly. Harris received per-patient payments from the laboratory while making per-patient payments to physicians and sales staff. Those payment streams implicated the Anti-Kickback Statute because the law generally prohibits offering, paying, soliciting, or receiving remuneration in exchange for referrals involving federally reimbursable services.

Harris did what many health care businesses believe will protect them. He consulted multiple attorneys. He retained counsel. His attorney communicated with him almost daily. The attorney reviewed contracts and business decisions, then issued a compliance memorandum supporting the legality of Secure Health’s operations.  The problem was that the memorandum repeatedly assumed Secure Health’s employees would receive flat salaries. They did not. The company paid them per patient. 

That difference was not minor. It went directly to the legality of the arrangement.  The Sixth Circuit held that Harris was not entitled to an advice-of-counsel jury instruction because he failed to disclose all pertinent facts to his lawyer. To rely on advice of counsel, a defendant must fully disclose the material facts and rely on the resulting legal advice in good faith. Harris could not satisfy either requirement because the attorney’s analysis depended on a compensation structure that was materially different from the one the company actually used.

The court also rejected Harris’ argument that the per-patient compensation began after the compliance memorandum was issued. The advice-of-counsel defense does not require someone to disclose facts that do not yet exist. It does require that person to follow the advice received. Once Harris departed from the flat-salary structure assumed by counsel, he could no longer claim good-faith reliance on the memorandum.

This distinction is critical for health care providers. A legal opinion is not a permanent shield covering every later variation of an arrangement. It protects only the facts presented and the structure analyzed. When compensation changes, referral relationships evolve, or operational practices drift away from the written agreement, the original advice may no longer apply.

The case also demonstrates why simply telling counsel that the organization wants to be compliant is not enough. Harris’ brother testified that they ran everything by their attorney. The court found that the general testimony was insufficient. What mattered was whether counsel had been told the specific fact that employees were paid per patient. The lawyer testified that he had not been told, and his written memorandum confirmed that his analysis rested on the opposite assumption. Providers should not treat counsel as a box to check after management has already decided how a business model will operate. Lawyers cannot evaluate risks they have not been told about. That includes compensation formulas, commission arrangements, patient acquisition methods, marketing scripts, ownership interests, referral expectations, and payment flows between providers, laboratories, marketers, and vendors.

The advice-of-counsel defense can still be extremely valuable. But it is a demanding defense. The organization must provide complete and candid information. Counsel must analyze the actual arrangement rather than a sanitized summary. Management must follow the advice. If the arrangement changes, the organization must return to counsel before implementation. The legal review should also be documented carefully so the organization can later establish what was disclosed, what advice was provided, and whether the advice was followed.

This case should also concern executives who believe frequent contact with an attorney automatically demonstrates good faith. The record showed daily communications between Harris and counsel, yet the court still found the defense unavailable. Frequency of communication cannot substitute for accuracy and completeness.

The call to action is straightforward. Review every significant arrangement that depends on prior legal advice. Compare the facts assumed in the legal memorandum with how the arrangement operates today. Pay particular attention to per-patient, per-order, per-test, and percentage-based compensation. Confirm that operational leaders have not changed payment structures or referral processes without renewed legal review. Require compliance and legal approval before modifying any arrangement involving federal health care program business.

If you have questions about the advice-of-counsel defense or want Parrella Health Law to review whether your current operations still match prior compliance advice, please contact us at 857.328.0382 or contact Chris directly at cparrella@parrellahealthlaw.com.