Can a firm sue a doctor in one case while relying on the same doctor as a treating-physician witness for other clients?

Plain-English summary

A firm represented plaintiffs for whom a specific doctor (Dr. X) was a necessary treating-physician witness, while at the same time suing that doctor as a defendant in an unrelated contractual dispute on behalf of another plaintiff. The committee concluded that because there is no attorney-client relationship between the firm and Dr. X, the governing rule is RPC 1.7(b). Under that rule the firm may both represent plaintiffs for whom Dr. X is a treating physician and represent the plaintiff suing Dr. X. No consent of Dr. X is required, but the affected clients must consent if there is a reasonable basis to believe the firm's judgment, loyalty, or effectiveness would be limited by fear of alienating Dr. X as a witness. That consent requirement reaches the suing client as well as current and future clients for whom Dr. X is a potential witness.

The committee added that the conflict may be non-waivable if the firm has formed a bias against Dr. X that would interfere with using his testimony in future cases, or if Dr. X himself is biased, because in either situation independent judgment on the client's behalf is impaired. It also noted that if Dr. X reasonably misunderstood the firm's role when he referred cases and cooperated, the firm has an affirmative duty under RPC 4.3 to explain the difference between an attorney-client relationship and an attorney-witness relationship. The committee said there is nothing improper in declining to represent clients where Dr. X is the treating physician, and that representing future clients where Dr. X is peripherally involved is permissible if RPC 1.7(b) and (c) are met: there is in fact no disqualifying bias, a written waiver under RPC 1.7(b)(2) is obtained, and (though the rule does not require it in writing) a wise lawyer gives written notice of the potential conflict. Finally, the committee said contacting Dr. X through his counsel once the adverse proceeding arose was the appropriate way to communicate under RPC 4.2, and that the committee does not refer medical ethics complaints.

Currency note

This opinion was issued in 1996, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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. Washington's RPC 1.7, 4.2, and 4.3 correspond to ABA Model Rules 1.7 (conflicts of interest), 4.2 (communication with represented persons), and 4.3 (dealing with unrepresented persons).

Common questions

Q: Which conflict rule applies when the adverse party is not a client?

A: The committee said that because there is no attorney-client relationship with Dr. X, RPC 1.7(b) governs, not the former-client or current-client rules tied to representing the doctor.

Q: Whose consent is needed to sue the doctor while using him as a witness elsewhere?

A: The committee said Dr. X's consent is not required, but the affected clients (the plaintiff suing him and current and future clients for whom he is a witness) must consent where there is a reasonable basis to believe the firm's judgment would be limited.

Q: When does the conflict become non-waivable?

A: The committee said the conflict may be non-waivable if the firm has formed a bias against Dr. X that would impair its independent judgment, or if Dr. X is biased.

Q: Was contacting the doctor through his lawyer proper?

A: Yes. The committee said going through counsel once the adverse proceeding arose was the appropriate way to communicate under RPC 4.2.

Background and rules framework

The opinion applied RPC 1.7(b) and (c) (conflicts of interest involving a lawyer's own interests or responsibilities to others, corresponding to ABA Model Rule 1.7), RPC 4.2 (communicating with a represented person, corresponding to ABA Model Rule 4.2), and RPC 4.3 (dealing with an unrepresented person, corresponding to ABA Model Rule 4.3). The committee made the conflict turn on whether fear of alienating, or bias against, a non-client witness would impair the firm's independent judgment, and located the duty to clarify the firm's role toward a confused witness in RPC 4.3.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7 (conflicts of interest); Washington RPC 1.7(b), 1.7(c)
• ABA Model Rule 4.2 (communication with represented persons); Washington RPC 4.2
• ABA Model Rule 4.3 (dealing with unrepresented persons); Washington RPC 4.3

See also

• WA Ethics Op. 1643: Contacting an Insurance Adjuster
• WA Ethics Op. 1655: Spouse's Public Defender Conflicts
• WA Ethics Op. 1626: Lawyer on City Council Conflicts

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=749

Original opinion text

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

Advisory Opinion: 1667
Year Issued: 1996
RPC(s): RPC 1.7(b); 4.2; 4.3
Subject: Conflict of interest; lawyer suing doctor who is treating physician of other clients

The Committee discussed your inquiry regarding whether a conflict of interest exists because some of your firm’s clients have a specific doctor (Dr. X) as a necessary witness as treating physician while at the same time your firm is suing this same doctor as a party defendant in a contractual dispute on behalf of another client/plaintiff (Ms. F). The Committee concluded that because there is no attorney/client relationship between you, your law firm and Dr. X, the relevant conflict of interest rule is RPC 1 .7(b). Under this rule, you and your law firm may represent plaintiffs for whom Dr. X is a treating physician, while at the same time representing Ms. P suing Dr. X in an unrelated matter. No consent of Dr. X is required, but consent of the client/plaintiff for whom Dr. X is a treating physician and consent by Ms. P who is suing Dr. X is required if there is a reasonable basis for belief that your judgment, loyalty, or effectiveness would be limited in suing Dr. X on behalf of Ms. P because of fear of alienating Dr. X as a potential witness for other clients. This consent requirement includes Ms. P, as well as current and future clients for whom Dr. X was or will be a potential testifying witness.

Your advice to your firm’s associate regarding the handling of Ms. P’s case may be evidence that judgment, loyalty or effectiveness for Ms. P would be impaired. If you and/or your law firm has formed a bias against Dr. X, (as reflected in the inquiry letter) which would interfere in utilizing Dr. X’s testimony in future plaintiff’s actions where Dr. X was the treating physician, the conflict may be non-waivable if the independent judgment on behalf of your client is impaired because of the bias. It is also non-waivable if Dr. X has a bias.

It is possible that Dr. X reasonably misunderstood your role and your law firm’s role when he referred cases to you and when he cooperated with your firm on behalf of your plaintiff clients. If Dr. X reasonably misunderstood these roles, then you have an affirmative duty to explain the difference between an attorney/client relationship and an attorney/witness relationship on behalf of the client. RPC 4.3.

There is nothing ethically improper in you or your law firm refusing to represent other clients where Dr. X is the treating physician. That would obviously avoid the RPC 1 .7 potential violation. Similarly, there is no ethical impropriety in representing future clients where Dr. X is peripherally involved so long as RPC 1.7(b) and (c) are satisfied in the following way:

(1) There must in fact be no bias and/or attitude on the part of you or your law firm against Dr. X which would interfere with independent judgment in evaluating the role of Dr. X in the client’s case and in calling Dr. X as a witness.

(2) Assuming there is no such attitude or bias that would interfere with independent judgment, then a waiver under RPC 1 .7(b)(2) should be acquired in writing.

(3) While the rule does not require that the notice of the potential conflict be given in writing to the client, a wise lawyer does so.

There was no ethical impropriety in the manner in which you contacted Dr. X through counsel once this issue arose while the firm was representing a client in an adverse proceeding against Dr. X. Going through counsel was the appropriate way to accomplish that communication under RPC 4.2.

Finally, you asked how to refer Dr. X to the relevant medical authorities. The RPC Committee does not refer medical ethics complaints