When must counsel report an opponent who previously represented the current client in a related licensing matter?

Plain-English summary

The lawyer moved to disqualify opposing counsel, who had formerly represented the current client in a licensing proceeding. The lawyer asked whether the former-client conflict had to be reported.

The opinion sets three outcomes. There is no reporting duty if the court finds no conflict or further facts show a good-faith belief of no conflict. Nor is there a duty when counsel is disqualified but the lawyer believes the opponent acted in good faith. If the court disqualifies counsel and the lawyer believes there was no good-faith belief of no conflict, reporting is required, conditioned on the client’s consent under Rule 4-8.3(c). The lawyer should advise the client of the option to complain to OCDC under Rule 4-1.4.

In practice

The opinion conditions any reporting obligation on what the court decides, the lawyer’s belief about opposing counsel’s good faith, and client consent. It separately addresses advising the client about an OCDC complaint.

Common questions

Q: Does every disqualification require a report?

A: No. The opinion says no report is required if counsel had a good-faith belief that no conflict existed.

Q: When does the opinion impose a reporting duty?

A: After disqualification, if the lawyer believes opposing counsel lacked a good-faith belief of no conflict, subject to client consent under Rule 4-8.3(c).

Q: What must the client be told?

A: The opinion says the lawyer should advise the client of the option to file a complaint with OCDC.

Background and rules framework

The opinion applies Rule 4-8.3(c) to consent for reporting and Rule 4-1.4 to communication with the client about an OCDC complaint.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-8.3
• Rule 4-1.4

See also

• Missouri Informal Op. 2011-04: Self-Reporting

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/20050051/

Original opinion text

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

QUESTION: Attorney represents a health care provider in a medical malpractice case. Client is being sued for professional negligence. Attorney discovered from Client that the attorney representing the plaintiffs in the case had previously represented Client in a disciplinary proceeding before the state licensing board. The previous representation ended in a number of years ago. The disciplinary proceeding did not involve the plaintiffs in the pending malpractice claim, but there are allegations in the malpractice action that Client is incompetent, and that Client’s alleged employer was negligent in employing Client due to incompetence. Confidential information gained in the prior representation could be used against Client in the present litigation. Attorney filed a motion to disqualify plaintiff’s counsel. Does Attorney have an obligation to report this pursuant to Rule 4–8.3?

ANSWER: The responses to the motion to disqualify and the evidence at any hearing on the motion should serve to clarify the facts of the situation. (1) If the court specifically finds that there is no conflict, or further facts lead Attorney to believe that opposing counsel had a good faith belief that there was no conflict, Attorney does not have an ethical obligation to report opposing counsel. (2) If the court disqualifies opposing counsel, but Attorney believes that opposing counsel had a good faith belief that there was no conflict, Attorney does not have an ethical obligation to report opposing counsel. (3) If the court disqualifies opposing counsel and Attorney believes that opposing counsel did not have a good faith belief that there was no conflict, Attorney has an obligation to report opposing counsel. However, under Rule 4–8.3(c), that duty is conditioned on consent by Client. In any event, as part of Attorney’s duty under Rule 4–1.4, Attorney should advise Client of the option to file a complaint with OCDC.