Can a lawyer take a medical malpractice case against a hospital when two hospital agents in the case are the lawyer's former and current clients from unrelated divorce matters?

Plain-English summary

Lawyer A, associating with Lawyer B, took on a medical malpractice case for clients against a hospital. Investigation revealed that two people, X and Y, might be involved as agents of the hospital, either as named defendants or as non-party agents. Lawyer A had represented X in a child custody and support action, with last contact in 1983, and currently represented Y, having drawn a separation agreement and filed a still-pending divorce for Y (who had paid only one-eighth of the fee). The inquiry asked whether Lawyer A could continue in the malpractice case with disclosure and consent, and whether it mattered if X and Y were only witnesses rather than defendants.

The opinion drew a line between the former and current client. As to X, Lawyer A no longer represented him and had had no contact since 1983; the malpractice action was not the same matter and did not appear substantially related to the earlier custody and support case (Rule 5.1(d)), and it did not appear likely that any confidential information from the prior representation would be violated. As to Y, Lawyer A currently represented him, so while that representation continued Lawyer A could not undertake adverse or likely-adverse representation absent Y's consent, the malpractice clients' consent, and a reasonable belief that the other representation would not adversely affect Y's interests (Rule 5.1(a)). Even if Y were only a witness and agent of the hospital, the inquiry suggested Y's motives or actions might be questioned and he would be subject to cross-examination; the opinion concluded it is difficult to maintain the lawyer's loyalty and the client's freedom of communication while simultaneously representing plaintiffs against Y's principal in a case where Y is a witness (Rule 4; Rule 5.1(b)). On these facts, Lawyer A should not undertake the malpractice representation so long as he represents Y in the divorce.

Currency note

This opinion was issued in 1987, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The provisions it applies (Rule 5.1 on conflicts of interest, including current-client and former-client duties, and Rule 4 on confidentiality) have since been renumbered and revised (the corresponding Model Rules are 1.7, 1.9, and 1.6). 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.

Common questions

Q: Can a lawyer take a case adverse to a former client?

A: Yes, where the old matter is not the same as or substantially related to the new one. The opinion concluded the lawyer could proceed against X, whose unrelated custody matter ended in 1983, because no confidential information appeared at risk (Rule 5.1(d)).

Q: Can a lawyer take a case adverse to a current client?

A: Not while still representing that client, absent consent. The opinion concluded the lawyer could not undertake representation directly or likely adverse to Y without Y's consent, the new clients' consent, and a reasonable belief Y's interests would not be adversely affected (Rule 5.1(a)).

Q: Does it matter if the current client is only a witness, not a defendant?

A: The opinion concluded it does not change the result here, because Y's motives might be questioned and he would face cross-examination, making it difficult to maintain loyalty and confidential communication (Rule 4; Rule 5.1(b)).

Background and rules framework

The opinion applied North Carolina Rule 5.1 on conflicts of interest, distinguishing the former-client substantial-relationship test (Rule 5.1(d), corresponding to Model Rule 1.9) from the current-client direct-adversity rule (Rule 5.1(a), corresponding to Model Rule 1.7), with Rule 4 on confidentiality (corresponding to Model Rule 1.6) underpinning both. The analysis turned on whether the prior matter was substantially related and on the ongoing loyalty owed to a current client who would be a witness adverse to the new clients.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 5.1(a), (b), (d) (conflicts; current and former clients)
• North Carolina Rule 4 (confidentiality)
• MR 1.7 (concurrent conflicts); MR 1.9 (duties to former clients); MR 1.6 (confidentiality)

See also

• NC Ethics Op. RPC 42: representation of interests adverse to a former client
• NC Ethics Op. RPC 32: representing one former joint client in divorce

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-27/

Original opinion text

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

Inquiry:

Lawyer A is contacted concerning a possible medical malpractice action. With the consent of the prospective clients, Lawyer A consults with Lawyer B, of a different law firm, about associating in the case. Lawyers A and B sign a contract to represent the clients in the medical malpractice case.

Subsequently, Lawyer A learns through investigation of the case that X and Y may be involved in the case as agents of the hospital. X and Y may be named in the complaint as defendants or may simply be involved as non-party agents of the defendant hospital.

Lawyer A represented X in a child custody and support action. Lawyer A's last contact with X was in 1983. Lawyer A has drawn a separation agreement for Y and has filed a divorce complaint on Y's behalf. The divorce action is still pending and could be put on the calendar and resolved at any time. Y has paid lawyer A only 1/8 of the fee due to lawyer A for filing the divorce action.

If lawyer A fully disclosed to the plaintiffs in the medical malpractice matter his involvement concerning X and Y, and if the plaintiffs in the medical malpractice matter give their consent for Lawyer A to continue representing them, and if the divorce action for Y is finalized prior to any medical malpractice suit being filed, may Lawyer A ethically continue to represent the plaintiffs in the medical malpractice matter as counsel? Would it make any difference if X and Y give informed consent to Lawyer A's representation of the medical malpractice clients even if it should involve a lawsuit involving X and Y as possible defendants?

If only the hospital is sued, and X and Y are not named as party defendants in the medical malpractice action and would thereby be involved as witnesses as the agents of the hospital defendant, could Lawyer A ethically represent the plaintiffs in the medical malpractice action as counsel with Lawyer B?

Opinion:

Lawyer A does not currently represent X and has had no contact with X since 1983. The medical malpractice action is certainly not the same matter and does not appear in any way to be substantially related to the child custody and support action in which Lawyer A previously represented X. See Rule 5.1(d). On the facts given, it does not appear likely that any confidential information obtained in Lawyer A's prior representation of X would be violated if Lawyer A now represented the medical malpractice clients.

It appears that Lawyer A currently represents Y. So long as Lawyer A is representing Y, he cannot undertake adverse representation or representation which is likely to be directly adverse to him unless he has consent of Y and the clients in the medical malpractice case and unless he reasonably believes the other representation would not adversely affect Y's interests. Rule 5.1(a). Even if Y is only a witness and agent of the hospital in the medical malpractice matter, the inquiry suggests that Y's motives and/or actions might be in question. He would be a witness subject to cross-examination. It is difficult to see how the loyalty of the lawyer to his client and the full and frank communication which a client should feel free to give to his lawyer can be maintained if the lawyer is simultaneously representing plaintiffs against Y's principal in a malpractice action in which Y would be involved as a witness. See Rule 4 and comment thereto; Rule 5.1(b) and comment to Rule 5.1. Under these circumstances, it does not appear that Lawyer A should undertake to represent the clients in the medical malpractice matter so long as he is representing Y in Y's divorce action.