I represent a defendant in a personal injury case, and the plaintiff's treating physician -- who may testify -- is my former client. Is that a conflict?
Apply this to your situation
This page answers the general question as of 1993. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiring attorney represents a defendant in a personal injury lawsuit. Doctor X is the plaintiff's treating physician and may testify on the plaintiff's behalf at trial. The attorney previously represented Doctor X in a medical malpractice lawsuit. The attorney asked whether representing the defendant presents a conflict of interest.
The opinion recognizes that Doctor X is a former client and applies Rule 1.9, which bars a lawyer who formerly represented a client from (a) representing another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client's absent consent, and (b) using information relating to the former representation to the former client's disadvantage except as Rule 1.6 or Rule 3.3 permits or when the information has become generally known.
The opinion concludes the attorney may represent the defendant in conformity with Rule 1.9, because the matters are not the same or substantially related and the interests of the defendant are not materially adverse to the interests of Doctor X. It adds that the attorney is nonetheless obligated to conform to the confidentiality principles of Rule 1.6 and may not use information obtained in the former representation to the disadvantage of Doctor X.
In practice
Under this opinion, a former client's appearance as the opposing party's witness does not, by itself, create a Rule 1.9 conflict. The opinion keys the analysis to two findings: the prior medical malpractice matter and the current personal injury case are not the same or substantially related, and the defendant's interests are not materially adverse to the former-client physician's. The representation is therefore permitted, subject to the continuing Rule 1.6 duty not to use the former client's information to that client's disadvantage.
Common questions
Q: Is it a conflict to litigate against a party whose witness is my former client?
A: Not on these facts. The opinion concludes the attorney may represent the defendant under Rule 1.9 because the matters are not substantially related and the defendant's interests are not materially adverse to the former-client physician's.
Q: What limits still apply to the lawyer?
A: The opinion states the attorney must conform to Rule 1.6 and may not use information obtained in the former representation to the disadvantage of Doctor X.
Q: What made the two matters not "substantially related"?
A: The opinion treats the prior medical malpractice representation of Doctor X and the current personal injury defense as distinct matters that are not the same or substantially related.
Background and rules framework
The opinion interprets Rhode Island Rules of Professional Conduct 1.9 (conflict of interest: former client) and 1.6 (confidentiality of information), analogs of the corresponding Model Rules. Rule 1.9(a) bars adverse representation in the same or a substantially related matter; Rule 1.9(b) and Rule 1.6 bar using former-client information to that client's disadvantage.
Citations and references
Rules of Professional Conduct:
- MR 1.9 / RI RPC 1.9(a), (b) (conflict of interest: former client)
- MR 1.6 / RI RPC 1.6 (confidentiality; no use of former-client information to that client's disadvantage)
See also
- RI EAP Opinion 93-72: former DUI defendant and representing the tavern in the civil suit under 1.9
- RI EAP Opinion 93-68: representing a spouse against a former divorce client under 1.9
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%2093-77.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
(FINAL)
ETHICS ADVISORY PANEL
OPINION #93-77, REQUEST #418
Issued October 5, 1993
The inquiring attorney represents a defendant in a personal injury lawsuit. Doctor X is the plaintiff's treating physician and may testify on plaintiff's behalf at trial. The inquiring attorney previously represented Doctor X in a medical malpractice lawsuit. The inquiring attorney asks whether the representation of the defendant presents a conflict of interest.
Under these facts, Doctor X is a former client of the inquiring attorney. Rule 1.9 outlines a lawyer's ethical obligations in this situation. The Rule provides as follows:
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.
Based on the facts as presented, the Panel concludes that the inquiring attorney may represent the defendant in conformity with Rule 1.9. The matters of representation are not the same or substantially related and the interests of the defendant are not materially adverse to the interests of Doctor X. The inquiring attorney is, however, obligated to conform with the confidentiality principles of Rule 1.6 and may not use information that was obtained in the former representation to the disadvantage of Doctor X.
Get today's answer for your situation
You just read a 1993 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.