Can a lawyer who used to defend a medical group sue one of its physicians for malpractice in a factually unrelated case?

Plain-English summary

A lawyer formerly defended a medical group against malpractice claims. Two years after leaving his firm, he sued an individual physician who is a member of that group, on claims arising from different occurrences than those he had defended; he had never represented the physician and did not know the physician belonged to the group. The opinion assumes the group will be added as a defendant or will be financially responsible. The group argues the lawyer is conflicted from any matter adverse to any of its members.

The committee works through the conflicts framework. First, the physician is not a former client: under Rule 1.13(a) and (g), representing an organization does not make its constituents clients absent an agreement, so there is no client-lawyer relationship with the physician. The relevant conflict is with the former client, the medical group, governed by Rule 1.9. Rule 1.9(a) bars representation materially adverse to a former client in the "same or a substantially related" matter without informed consent. The committee finds the interests clearly materially adverse, so the question is whether the matters are substantially related. Under Comment 3, matters are substantially related if they involve the same transaction or dispute, or if there is a substantial risk that confidential information normally obtained in the prior representation would materially advance the new client's position; Comment 2 adds that recurrently handling similar claims does not make matters substantially related when they are factually distinct, the test being whether the lawyer would be "changing sides." The committee lays out the Illinois three-part Schwartz v. Cortelloni test and stresses the fact-intensive nature of the inquiry, noting that even factually distinct matters can be substantially related if the lawyer learned specific confidential information (such as the group's defense "playbook") relevant to the new matter.

The committee then addresses Rule 1.9(c), which restricts a lawyer even where no conflict bars the representation: the lawyer may not use information relating to the former representation to the former client's disadvantage (except as permitted or where generally known), and may not reveal such information at all, except as the rules would permit. Drawing on ABA Formal Opinion 479 and ISBA Opinion 05-01, the committee explains the "generally known" exception is narrow, that publicly available is not the same as generally known, and that the no-reveal limit of 1.9(c)(2) is broader than the no-use limit of 1.9(c)(1).

In practice

Under this opinion, a lawyer in this position must run the Rule 1.9 substantial-relationship analysis (using the Schwartz three-part test) rather than assume either that factual distinctness clears the conflict or that former representation of the group bars all matters against its members. The opinion treats the physician as a non-client, requires the group's informed consent only if the matters are substantially related and materially adverse, and applies the Rule 1.9(c) use-and-disclosure limits to the group's confidential information in every case.

Common questions

Q: Is the individual physician a former client of the lawyer?

A: No. The committee says, under Rule 1.13(a) and (g), representing the medical group did not make its member physicians clients absent an agreement; the lawyer never represented the physician.

Q: Does suing the physician automatically conflict the lawyer out?

A: Not automatically. The conflict runs to the former client (the group) under Rule 1.9(a), and turns on whether the new matter is substantially related to the former representation, a fact-intensive question.

Q: Are factually distinct matters ever "substantially related"?

A: Yes. The committee says even matters involving different physicians and occurrences can be substantially related if the lawyer gained specific confidential information (such as the group's defense methods) that would materially advance the new client's position.

Q: What are the limits if there is no disqualifying conflict?

A: Rule 1.9(c) still applies: the lawyer may not use the former client's information to its disadvantage (except where generally known) and may not reveal it at all except as the rules permit; the "generally known" exception is narrow.

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 1.9 (duties to former clients), in particular 1.9(a) (substantial relationship and material adversity) and 1.9(c) (use and disclosure of former-client information), read with Rule 1.13 (organization as client; constituents) and Rule 1.6 (confidentiality). These track the corresponding Model Rules. The committee applies the Illinois Supreme Court's three-part Schwartz v. Cortelloni test, the Restatement (Third) section 96, and ABA Formal Opinions 479 (generally-known exception) and 497 (material adversity).

Citations and references

Rules of Professional Conduct:

• MR 1.9 / IL RPC 1.9(a), (c) (duties to former clients; substantial relationship)
• MR 1.13 / IL RPC 1.13(a), (g) (organization as client; constituents)
• MR 1.6, 1.7 / IL RPC 1.6, 1.7 (confidentiality; current-client conflicts)

Cases:

• Schwartz v. Cortelloni, 177 Ill. 2d 166 (1997), three-part substantial-relationship test
• In re Estate of Klehm, 363 Ill. App. 3d 373 (1st Dist. 2006); Watkins v. Trans Union, LLC, 869 F.3d 514 (7th Cir. 2017)

Other opinions cited:

• ABA Formal Op. 479 (generally-known exception); ABA Formal Op. 497 (material adversity)
• ISBA Advisory Op. 05-01; Restatement (Third) of the Law Governing Lawyers section 96

See also

• ABA Formal Op. 497: Conflicts Involving Materially Adverse Interests
• NY State Bar Op. 1103: Representing a Competitor of a Former Client
• NY State Bar Op. 1287: Lawyer as Qui Tam Relator Against a Former Client

Source

• Landing page: https://www.isba.org/ethics/opinions/2201