Can one lawyer represent both a physician and a hospital insured by the same carrier, while also representing the Patients Compensation Fund, in a medical malpractice case?
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This page answers the general question as of 1985. 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
Opinion E-85-3 arose under Wisconsin's mandatory risk-sharing plan for health care providers, where providers carry $200,000 in primary malpractice insurance and the Patients Compensation Fund pays awards above that amount; claimants seeking more than $200,000 must name the fund, and the primary insurer must provide an adequate defense and act as a fiduciary toward any claim affecting the fund. A physician and a hospital were insured by the same primary carrier and sued together; one lawyer appeared for both and also accepted retention for the fund.
On the first question, the committee restated the former Code's rule that a lawyer must maintain independent professional judgment and undivided loyalty, which is threatened whenever a lawyer represents two or more clients with differing interests (former SCR 20.23(3)). A lawyer asked to represent multiple malpractice defendants with potentially differing interests must weigh the risk to judgment and loyalty, resolve doubts against the propriety of the representation, and accept it only after fully explaining the implications and obtaining each client's consent (SCR 20.23(3)(c), 20.28(3)). Whether the lawyer can fairly protect each client depends on the facts of each case, and the lawyer must defer to and withdraw from any client who believes the lawyer cannot, even if the lawyer disagrees (SCR 20.23(3)(d), (f)).
On the second question, whether efforts to exculpate a defendant conflict with the duty to minimize the fund's exposure, the committee analogized to its Formal Opinion E-84-19 (insurer/insured where punitive damages are claimed). Citing Zieman Mfg. Co. v. St. Paul Fire & Marine Ins. Co., it concluded that the dual role is not a per se conflict of interest; rather, the question requires a case-by-case factual analysis. The committee added that if a conflict develops, the lawyer may be required to withdraw from representation of all clients in the matter.
Currency note
This opinion was issued in 1985, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. Concurrent conflicts of interest are now governed by SCR 20:1.7 / Model Rule 1.7. 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 one lawyer represent both a physician and a hospital sued together for malpractice?
A: The committee concluded it may be permissible after a case-by-case analysis, but only with full disclosure and each client's consent, and the lawyer must resolve doubts against the representation.
Q: Does also representing the Patients Compensation Fund create an automatic conflict?
A: The committee concluded it is not a per se conflict; the question requires a case-by-case factual analysis like the insurer/insured punitive-damages situation.
Q: What if an actual conflict develops mid-case?
A: The committee stated the lawyer may be required to withdraw from representation of all clients in the matter, and must withdraw as to any client who doubts the lawyer's undivided loyalty.
Background and rules framework
The opinion interpreted the former Code's multiple-representation provisions (SCR 20.23(3) and 20.28(3)), which require independent judgment, full disclosure, client consent, and withdrawal where loyalty is questioned. Concurrent conflicts are now governed by SCR 20:1.7 / Model Rule 1.7.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20.23(3), 20.28(3) / Model Rule 1.7 (concurrent conflicts of interest) (former Code provisions)
Statutes:
- Wis. Stat. ch. 619; Wis. Stat. sec. 655.27 (1981-82) (Patients Compensation Fund)
Cases:
- State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 261 N.W.2d 434 (1977)
- Zieman Mfg. Co. v. St. Paul Fire & Marine Ins. Co., 724 F.2d 1343 (9th Cir. 1983)
Other opinions cited:
- Wisconsin Formal Ops. E-84-19, E-83-9, E-80-17, E-75-2, E-75-18
See also
- WI Ethics Op. E-99-1: Representing Both Insurers and Insureds
- WI Ethics Op. E-99-2: Joint Representation of Host Driver and Guest Passenger
- WI Ethics Op. E-86-16: Lawyer-Director of an Insurer Whose Firm Sues the Insurer
- WI Ethics Op. E-85-4: A Firm Holding a Competing Mortgage in a Foreclosure
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-85-3.pdf
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