Can a lawyer defend a physician when his firm already represents the co-defendant hospital in other cases, and he represents another physician who will testify against this one?

Plain-English summary

In a wrongful-death malpractice suit, a physician's insurer wants to engage a lawyer and his firm to defend the physician. Two problems exist. First, the firm already represents the co-defendant hospital in at least two other, unrelated malpractice suits, and the physician's defense blames the hospital's equipment, making their positions directly adverse in this case. Second, the lawyer separately represents another physician, in an unrelated malpractice suit, who took a position against the defendant physician and will likely be a witness against her.

Applying Rule 1.7 and treating the lawyer and his firm as one under Rule 1.10(a), the Committee analyzes both conflicts. On the hospital (Question 1), because the physician's defense is directly adverse to the hospital, Rule 1.7(a) applies; the opinion reasons that an objective, disinterested lawyer would conclude that mounting a defense blaming the hospital's equipment will adversely affect the firm's relationship with its hospital client, so the conflict stands. On the third-party physician (Question 2), the opinion finds a Rule 1.7(b) material-limitation conflict, because the lawyer's duty to effectively cross-examine and discredit that witness collides with his duties to that witness as a current client. Drawing on ISBA Op. 05-01, it also finds a Rule 1.7(a) conflict: cross-examining a current client who testifies adversely puts that client at a "concrete disadvantage," making the two clients directly adverse.

The opinion concludes that consent under Rule 1.7(a)(2) or 1.7(b)(2) is available only when a disinterested lawyer could reasonably conclude the representation will not adversely affect the other relationships, and that this threshold is not met here. Because it is not reasonable to conclude the physician's defense would leave the firm's relationship with the hospital, or with the third-party physician, unharmed, consent is irrelevant and the lawyer is precluded from representing the physician.

Currency note

This opinion was issued in 2009, before Illinois adopted its current Rules of Professional Conduct effective January 1, 2010. The pre-2010 Rule 1.7 cited here was structured differently from the 2010 rule; the opinion was affirmed by the ISBA Board of Governors in January 2010 by reference to 2010 Rule 1.7. Verify against the current conflict rule before relying on the specific consent standard described here.

In practice

Under the Illinois rule as it stood at the time, the opinion holds that a firm cannot take on a defense that is directly adverse to a current client of the firm in unrelated matters where the new representation would objectively harm that client relationship, and cannot represent a litigant whose effective defense requires cross-examining and discrediting another of the lawyer's current clients. It treats the reasonable-belief gateway to consent as an objective test, and finds that on these facts consent could not save either representation, so the conflicts are dispositive.

Common questions

Q: Can a firm defend a party who is blaming a different client of the firm?

A: On these facts, no. The opinion concludes that defending the physician by blaming the firm's hospital client is directly adverse under Rule 1.7(a), and an objective lawyer would conclude the hospital relationship would be harmed, so the conflict bars it.

Q: Why is representing a witness who will testify against the client a conflict?

A: The opinion concludes that the lawyer's duty to cross-examine and discredit the witness-client materially limits his defense of the physician (Rule 1.7(b)), and that putting a current client at a "concrete disadvantage" as a witness makes them directly adverse under Rule 1.7(a).

Q: Could the clients consent to waive these conflicts?

A: Not here. The opinion concludes consent is available only when a disinterested lawyer could reasonably conclude the other relationships would not be adversely affected, and that on these facts that conclusion is not reasonable, so consent is irrelevant.

Q: Does it matter that another firm lawyer, not this one, handles the hospital cases?

A: No. The opinion applies Rule 1.10(a) to impute the firm's conflicts to the individual lawyer, treating the lawyer and the firm as one for the analysis.

Background and rules framework

The opinion interprets Illinois Rule 1.7(a) (directly adverse conflicts) and Rule 1.7(b) (material-limitation conflicts), together with the objective "reasonable belief" standard for consent, and Rule 1.10(a) (imputation of conflicts within a firm). The corresponding Model Rules are MR 1.7 and MR 1.10. It applies prior ISBA Opinions 90-05, 04-01, and 05-01 on imputation, antagonistic interests, and cross-examining a current-client witness.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflicts of interest) / IL Rule 1.7(a), (b)
• MR 1.10 (imputation of conflicts) / IL Rule 1.10(a)

Other opinions cited:

• ISBA Op. 90-05: a lawyer and the lawyer's firm are treated as one for conflict analysis
• ISBA Op. 04-01: conflict where two clients have antagonistic interests in the same subject
• ISBA Op. 05-01: cross-examining a current-client witness can create a Rule 1.7(a) conflict

See also

• ISBA Ethics Op. 11-04: Cross-Examination of a Spouse
• ISBA Ethics Op. 07-01: Representing One State Agency While Suing Another

Source

• Landing page: https://www.isba.org/ethics/opinions/0902