Does a lawyer’s personal and professional relationship with the opponent’s expert bar representation of a malpractice defendant?

Plain-English summary

Defense counsel in a malpractice case learned of an ongoing personal and professional relationship with the plaintiffs’ expert.

The opinion says a Rule 4-1.7(b) conflict exists if that relationship materially limits representation. It requires disclosure and discussion with the client even if counsel believes there is no material limitation. If a conflict exists but the lawyer reasonably believes representation will not be adversely affected, the client may waive it. The official source notes that Rule 4-1.7 was amended effective July 1, 2007.

Currency note

The official source says Rule 4-1.7 was amended effective July 1, 2007. This opinion applies the earlier version.

In practice

The opinion makes material limitation the conflict test and requires discussion with the client whether or not the lawyer believes the test is met.

Common questions

Q: When does the expert relationship create a conflict?

A: When it materially limits the lawyer’s representation of the client.

Q: Must it be disclosed even without perceived material limitation?

A: Yes. The opinion requires disclosure and discussion with the client.

Q: Can a conflict be waived?

A: Under the former rule discussed, the opinion permits waiver if counsel reasonably believes representation will not be adversely affected.

Background and rules framework

The opinion applies former Rule 4-1.7(b) to a lawyer’s relationship with the opponent’s expert.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-1.7

See also

• Missouri Informal Op. 20050030: Hired Opposing Lawyer

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20030063/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Reference Note: Effective July 1, 2007, Rule 4–1.7 was amended. This opinion is based on Rule 4–1.7 in effect prior to that date.

QUESTION: Attorney entered an appearance for defendant, Doctor A, in a medical malpractice case. When plaintiffs disclosed their expert, Attorney learned that Attorney had an ongoing professional and personal relationship with plaintiffs’ expert. Can Attorney continue to represent Doctor A?

ANSWER: If there is a conflict of interest, it would be under Rule 4–1.7(b). If Attorney’s relationship with the expert will materially limit Attorney’s representation of Doctor A, a conflict exists. Even if Attorney does not believe the relationship would result in material limitation of Attorney’s representation, the relationship must be disclosed and discussed with Doctor A. If there is a conflict, but Attorney has a reasonable belief that it would not adversely affect representation, Doctor A could waive the conflict.