May a California attorney who also holds a partnership interest in a medical clinic refer personal-injury clients to that clinic for treatment, and what disclosures are required?
LACBA Ethics Opinion 477: Dual Profession; Attorney/Physician Referring Clients to Own Clinic
Short answer: Under former California Rules 3-110, 3-300, and 3-310 and Business and Professions Code section 6068(e) as analyzed, the committee concluded that there is no per se prohibition on an attorney also practicing medicine, but an attorney-physician's referral of personal-injury law clients to his own medical clinic is a Rule 3-300 business transaction requiring full written disclosure, advice on the right to independent counsel, and written client consent. The referral also triggers Rule 3-310(B)'s written disclosure of the lawyer's interest in the subject matter. The lawyer must additionally address competence concerns (Rule 3-110) and clearly inform the client that communications with the medical facility are not subject to the lawyer-client privilege.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Los Angeles County Bar Association's view of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Currency note
This opinion was issued in the early-to-mid 1990s, before California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct. Former Rule 3-110 corresponds to current Rule 1.1; former Rule 3-300 corresponds to current Rule 1.8.1; former Rule 3-310(B) corresponds to current Rules 1.7 and 1.8.6. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Plain-English summary
The committee considered an attorney who is also a licensed practicing family physician with an ownership or partnership interest in a medical facility. In connection with representing personal-injury and medical-malpractice clients, the attorney/physician refers clients to his own medical facility for treatment, without personally treating them.
The committee identified no per se ethical prohibition on practicing both law and medicine but identified that simultaneous practice requires scrupulous compliance with the Disciplinary Rules. The committee identified that the referral is a Rule 3-300 transaction (business transaction with the client, including acquisition of a pecuniary interest). Rule 3-300(A) requires the transaction to be fair and reasonable and the terms to be fully disclosed in writing in a manner reasonably understandable to the client. Rule 3-300(B) requires the lawyer to inform the client in writing of the right to seek independent counsel, with a reasonable opportunity to do so.
The committee identified the dual purposes of Rule 3-300: protecting clients from improper use of confidences and protecting the trust and confidence underlying the representation. The committee identified that violations of trust through overreaching "strike at the heart of the client-lawyer relationship." The committee identified that Rule 3-300 has been read broadly to apply even where the relationship between legal advice sought and the financial interest obtained are not necessarily related and even after the relationship has terminated; the rule also applies when the transaction involves an entity in which the lawyer has an ownership interest.
The committee identified the referral as a transaction implicating the client's trust and confidence: within the relationship, a lawyer has great influence over the client's decisions, and a client may follow the lawyer's suggestion as to a medical facility expecting it to be in the client's best interest, when in fact the lawyer's pecuniary interest may diverge from the client's. The committee identified specific Rule 3-300 requirements: the referring attorney cannot condition continued representation on seeking treatment at the facility; the cost must be fair and reasonable compared to a comparable facility; the lawyer must disclose the relationship in writing; the lawyer must tell the client he or she is free to go elsewhere; and the lawyer must advise the client in writing of the right to seek other counsel, with a reasonable opportunity to do so.
The committee identified Rule 3-310(B) as additionally triggered. Rule 3-310(B) requires written disclosure of (1) other relationships with parties or witnesses, (2) third parties known to be substantially affected by resolution, and (3) the attorney's interests in the subject matter. The committee identified that if a clinic employee may testify as percipient or expert witness, Rule 3-310(B)(1) applies; if the clinic expects compensation from settlement or the client's ability to pay the clinic depends on the case outcome, Rule 3-310(B)(3) applies; if the case outcome implicates the clinic's liability or compensation rights, Rule 3-310(B)(3) applies; and because the lawyer has a financial interest in the clinic rendering services, Rule 3-310(B)(4) applies.
The committee identified that Rule 3-310 disclosure requires both the relevant circumstances and the "actual and reasonably foreseeable adverse consequences to the client." The lawyer must address in writing whether the relationship or interest may adversely affect loyalty, independent judgment, and competent representation.
The committee identified the competence implication under Rule 3-110(a): where the treating physician is expected to testify as an expert, expert testimony may be impeached and the attorney discredited. The committee identified the confidentiality implication under section 6068(e): the client may be confused as to whether the duty of loyalty and confidentiality extends to clinic employees. The attorney must make clear to the client that communications to the medical facility are not subject to the lawyer-client privilege.
Common questions
Q: May a California attorney also practice as a physician?
A: Per the opinion, yes, with scrupulous compliance with the Disciplinary Rules. The committee identified no per se prohibition.
Q: Can the attorney/physician refer law clients to his own medical clinic?
A: Per the opinion, yes, but the referral is a Rule 3-300 business transaction requiring full written disclosure, advice on the right to seek independent counsel, and written client consent. Rule 3-310(B) disclosure of the lawyer's interest in the subject matter is also required.
Q: Can the lawyer condition the legal representation on the client's getting treatment at the clinic?
A: Per the opinion, no. Such a condition would fail Rule 3-300's fair-and-reasonable requirement.
Q: How must the lawyer handle the cost of clinic services?
A: Per the opinion, the cost must be fair and reasonable compared to similar services at a comparable facility; it must not adversely affect the lawyer-client relationship.
Q: Are communications to the clinic privileged?
A: Per the opinion, no. The lawyer must make clear to the client that communications to the medical facility are not subject to the lawyer-client privilege.
Q: Does it matter if the clinic's employees may testify in the client's case?
A: Per the opinion, yes. If a clinic employee is expected to testify as percipient or expert witness, Rule 3-310(B)(1) and competence concerns under Rule 3-110(a) (impeachment risk) apply.
Background and rules framework
The opinion interprets former California Rules of Professional Conduct 3-110 (competence), 3-300 (business transactions and acquisition of adverse pecuniary interests), and 3-310 (disclosures of conflicts and adverse-effect circumstances), with Business and Professions Code section 6068(e) (confidentiality). The committee anchored its overreaching analysis in Sodikoff v. State Bar, Beery v. State Bar, and Hunniecutt v. State Bar.
Citations and references
Rules of Professional Conduct (former):
- California Rule 3-110 (competence)
- California Rule 3-300 (business transactions with client)
- California Rule 3-310 (conflict disclosures)
Statutes:
- California Business and Professions Code section 6068(e)
Cases:
- Beery v. State Bar, 43 Cal.3d 802 (Cal. 1987)
- Hunniecutt v. State Bar, 44 Cal.3d 362 (Cal. 1988)
- Sodikoff v. State Bar, 14 Cal.3d 422 (Cal. 1975)
Other opinions cited:
- LACBA Formal Opinions 331, 351, 352, 363
- Charles W. Wolfram, Modern Legal Ethics (1986)
See also
- LACBA Opinion 492: Security Interest in Real Property to Secure Fees
- LACBA Opinion 478: Medical Liens and Disbursement of Client Funds
- LACBA Opinion 501: Conflicts Traveling With Lateral Move
Source
- Landing page: https://lacba.org/?pg=ethics-opinions
- Original PDF: https://lacba.org/docDownload/2010943