Must a defense lawyer withdraw when former physician clients become the plaintiff's treating-physician witnesses?

Plain-English summary

The first question was whether the lawyer must withdraw as defense attorney in a medical malpractice case in which former physician clients are now potential witnesses, as treating physicians, for the plaintiff. The committee's opinion was that the lawyer is not disqualified, assuming the lawyer will not violate RPC 1.6(a), 1.7(b), or 1.9(b). The committee said the lawyer should also consider ABA Model Rule 1.9(c).

The second question was whether, if withdrawal were required, another member of the law firm could represent the defendant as outlined in RPC 1.10. The committee determined that RPC 1.10 does not apply to this situation.

Currency note

This opinion was issued in 1997, 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 Treat this page as historical context, not current guidance.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 1.6, 1.7, 1.9, and 1.10 correspond to ABA Model Rules 1.6 (confidentiality), 1.7 (conflicts), 1.9 (duties to former clients), and 1.10 (imputation of conflicts).

Common questions

Q: Must defense counsel withdraw when former clients become the plaintiff's witnesses?

A: The committee said the lawyer is not disqualified, assuming the lawyer will not violate RPC 1.6(a), 1.7(b), or 1.9(b), and added that the lawyer should also consider ABA Model Rule 1.9(c).

Q: If withdrawal were required, could a firm colleague take over?

A: The committee determined that RPC 1.10 does not apply to this situation, so it does not supply that path.

Background and rules framework

The opinion applied RPC 1.6(a), 1.7(b), and 1.9(b) (confidentiality, current-client conflicts, and former-client duties, corresponding to ABA Model Rules 1.6, 1.7, and 1.9) to a defense lawyer whose former physician clients have become the plaintiff's treating-physician witnesses, and pointed to ABA Model Rule 1.9(c) for the use-of-information overlay. On imputation, the committee read RPC 1.10 (corresponding to ABA Model Rule 1.10) as inapplicable to this fact pattern.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality); Washington RPC 1.6(a)
• ABA Model Rule 1.7 (conflicts of interest); Washington RPC 1.7(b)
• ABA Model Rule 1.9 (duties to former clients); Washington RPC 1.9(b)
• ABA Model Rule 1.10 (imputation of conflicts); Washington RPC 1.10

Other opinions cited:

• ABA Model Rule 1.9(c): use of a former client's information

See also

• WA Ethics Op. 1667: Suing a Client's Treating Doctor
• WA Ethics Op. 1688: Former Client as a Witness
• WA Ethics Op. 1696: Tax Collection From a Former Client

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=777

Original opinion text

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

Advisory Opinion: 1703
Year Issued: 1997
RPC(s): RPC 1.6(a); 1.7(b); 1.9(b); 1.10; ABA Model Rule 1.9(c)
Subject: Conflict of interest; lawyer's former client is witness for opposing party

(1) Your first question is whether you are required to withdraw as defense attorney in a medical malpractice case in which your former physician clients are now potential witnesses as treating physicians for the plaintiff. It is the RPC Committee's opinion that you are not disqualified assuming that you will not violate RPC 1.6(a), 1.7(b) or 1.9(b). You should also consider ABA Model Rule 1.9(c).

(2) Your next question is whether, assuming your withdrawal as counsel is required, another member of your law firm may represent the defendant as outlined in RPC 1.10. The Committee determined that RPC 1.10 does not apply to this situation.