LEO: Conflict of Interest - Representing  LE Op. 1002

 

Conflict of Interest - Representing Client Against Former

Client in Substantially Related Matter.

 

December 9, 1987

 

An attorney was retained to represent an individual in a personal injury

action. While the investigation of the accident was being conducted,

another attorney in that attorney's office determined that the firm was

representing the hospital in a collection case against the new personal

injury client. The attorney immediately advised both clients that a

conflict of interest existed and provided both clients with a letter

detailing the conflict of interest and advising both that he could not

continue to represent either party unless both agreed in writing to waive

any conflict of interest. The personal injury client promptly signed the

waiver and the hospital advised orally that they would do the same. The

parties understood that no further action would be taken on the collection

case against the client until the personal injury matter was resolved, at

which time any remaining balance on the collection case would be paid if

sufficient funds were available. Thereafter, the personal injury client

attempted to discuss the case with the attorney who advised her that he

would be unable to represent her until after he had received a written

statement from the hospital. Subsequently, she discharged the attorney.

 

It may be technically proper, given the above, for the attorney to

continue to represent the hospital in the collection matter since the two

matters are not substantially related and both clients had knowledge

concerning the potential conflict and both waived any conflict of interest

claim. However, the attorney must consider the following limitations on

the method for the hospital's recovery:

 

1. It is improper, given the above, for the attorney to attempt to

collect the hospital account from the proceeds of the personal injury

action, because the information was learned through the representation of

the attorney's former client. [ DR:4-101(B)(2); EC:4-6]

 

2. It is improper, given the above, for the attorney to advise any other

person, including new counsel, of the personal injury claim because the

information was learned through the representation of the attorney's

former client. [ DR:4-101(B)(2), (3)]

 

Committee Opinion December 9, 1987