My insurance-company client assigned me to defend Physician A in a malpractice suit; Physician A was later dismissed. Now the same insurer wants me to represent Physician C, a non-party witness in the same case who's worried about being added as a defendant, at a deposition. Can I represent Physician C when my former client Physician A was a co-defendant in the same lawsuit?

Plain-English summary

An insurance company assigned the inquiring attorney to represent Physician A in a medical malpractice lawsuit naming Physician A and Physician B (the surgeon and assistant surgeon in the plaintiff's operation) as defendants. Physician A was later dismissed with prejudice, with the plaintiff satisfied there was no viable claim, and the dismissal stipulation was to be executed by all parties. Physician B then subpoenaed a nonparty treating physician, Physician C, for a deposition. Physician C, worried the testimony might involve unwanted expert opinions or statements risking addition as a defendant or third-party defendant, was also insured by the same insurance company and requested assigned counsel; the insurer assigned the inquiring attorney to represent Physician C at the deposition. The attorney stated there was no real potential that Physician A would be sued by Physician C.

The panel applied Rule 1.9, quoted in full, since Physician A is the attorney's former client. It found the conflict question depends on whether Physician C's testimony, or Physician C's interests generally, would be materially adverse to Physician A's interests, and stated it had received insufficient information from the inquiring attorney to make that determination itself. The panel placed the burden on the attorney: after consulting with Physician C, the attorney must determine whether Physician A's interests are in fact adverse to Physician C's; if adversity exists, the attorney must obtain Physician A's informed consent after meaningful consultation before representing Physician C at the deposition.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, representing a new client in the same underlying lawsuit as a former client, even after the former client's dismissal, requires the lawyer to affirmatively assess whether the new representation is materially adverse to the former client's interests under Rule 1.9, rather than assuming dismissal from the case eliminates the conflict question. Where the panel cannot make that adversity determination on the facts presented, the opinion places the burden on the inquiring attorney to make it after consulting with the new client, and to seek the former client's informed consent if adversity is found.

Common questions

Q: My former client was dismissed from a lawsuit. Can I now represent a different party or witness in the same case without worrying about a conflict?

A: Not automatically. The panel held the attorney still must determine whether the new representation is materially adverse to the former client's interests under Rule 1.9, regardless of the former client's dismissal.

Q: Who decides whether the two clients' interests are actually adverse in a situation like this?

A: The panel placed that determination on the inquiring attorney, to be made after consulting with the new client, since the panel found it lacked sufficient information to decide the adversity question itself.

Q: If I do find the interests are adverse, what has to happen before I can proceed?

A: Under Rule 1.9(a) as applied here, the former client must consent after meaningful consultation before the attorney may represent the new client in the matter.

Background and rules framework

The opinion applies Rule 1.9(a), (b) (Conflict of Interest: Former Client), the Model Rule counterpart of the same number, quoted in full, covering both the substantially-related-matter bar in subsection (a) and the use-of-information bar in subsection (b).

Citations and references

Rules of Professional Conduct:

• MR 1.9(a), (b) (Conflict of Interest: Former Client) / RI Rule 1.9(a), (b)

See also

• ISBA Ethics Op. 704: Law Firm Representation of a Defendant in a Personal Injury Matter Adverse to a Former Client
• Arizona State Bar Op. 99-08: Confidentiality, Conflict of Interest, Insurance Representation

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202005-03.pdf

Original opinion text

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

Final

               Rhode Island Supreme Court Ethics Advisory Panel
                     Opinion No. 2005-03 Request No. 894
                             Issued April 14, 2005

Facts:

   Insurance Company assigned the inquiring attorney to represent Physician A in a

medical malpractice lawsuit that names Physician A and Physician B as defendants.
During the course of the litigation, Physician A was dismissed from the lawsuit.
Subsequently, Physician B subpoenaed a nonparty physician who also treated the plaintiff
(hereinafter Physician C) to testify at a deposition.

    Physician C has concerns that his/her testimony may involve either expert opinions

that he/she is not willing to provide, or statements that might lead the plaintiff or Physician
B to add Physician C as a defendant or third-party defendant in the lawsuit. Therefore,
Physician C who is also insured by Insurance Company, has requested the Insurance
Company to assign counsel under the terms of his/her insurance policy. Insurance
Company has assigned the inquiring attorney to represent Physician C at the deposition.

    The inquiring attorney states that Physician A was originally named in the lawsuit

by the plaintiff because Physician A and Physician B were assistant surgeon and surgeon
in the plaintiff’s operation. During the course of discovery, the plaintiff became satisfied
that he/she had no viable claim against Physician A.

    The inquiring attorney further states that all claims against Physician A were

dismissed with prejudice and that the dismissal stipulation would be executed by all parties
to the action. The inquiring attorney also states that there is no real potential that Physician
a would be sued by Physician C.

Issue Presented:

   The inquiring attorney asks if he/she may represent Physician C at the deposition of

Physician C after having represented Physician A, a co-defendant in the same lawsuit, who
was dismissed from the suit.

Opinion:

    The inquiring attorney must determine whether the interests of Physician C and

his/her former client, Physician A, are adverse. If they are, the inquiring attorney may
represent Physician C at the deposition provided Physician A consents after consultation.
Final Op. 2005-03
Page 2

Reasoning:

  Physician A is a former client of the inquiring attorney. Therefore Rule 1.9 applies.

The Rule states:

           Rule 1.9. Conflict of Interest: Former Client. - A lawyer who
           has formerly represented a client in a matter shall not thereafter:

           (a) represent another person in the same or a substantially
           related matter in which that person's interests are materially
           adverse to the interests of the former client unless the former
           client consents after consultation; or

           (b) use information relating to the representation to the
           disadvantage of the former client except as Rule 1.6 or Rule
           3.3 would permit or require with respect to a client or when
           the information has become generally known.

    The inquiring attorney seeks to represent Physician C in the same matter in which

he/she represented Physician A. Thus, the existence of a conflict of interest depends on
whether the testimony of Physician C will be materially adverse to the interests of
Physician A, or whether the interests of Physician C are otherwise adverse to Physician A.
The Panel received insufficient information to make that determination. The inquiring
attorney must determine if the two interests are materially adverse. If after consulting with
Physician C the inquiring attorney determines that there are interests of Physician A that
are in fact adverse to the interests of Physician C, then the inquiring attorney must obtain
the informed consent of Physician A after meaningful consultation before he/she is
permitted to represent Physician C at the deposition.

   The Panel’s guidance is restricted to the interpretation of the Rules of Professional

Conduct, and does not extend to issues under any other rules, regulations, or laws,
including G.L. §5-37.3-1 et seq., that may have bearing on the issues raised by this inquiry.