LEO: Conflict of Interests - Personal Injury:  LE Op. 1312

 

Conflict of Interests - Personal Injury: Representing Defendant and

Hospital Where Plaintiff Had Been Treated Earlier; Advising

Hospital Regarding Certain Medical Records of Plaintiff.

 

May 8, 1990

 

This response supersedes the Committee's opinion dated January 4, 1990.

You have asked the Committee to opine as to whether Defendants' counsel

may continue representing the Defendants in a personal injury matter under

the following facts.

 

You have advised that counsel for the Defendants in a personal injury

matter is also retained counsel for the hospital where the Plaintiff in

the litigation had earlier received treatment for unrelated matters. Where

Plaintiff was injured in a fall while in the hospital during that earlier

stay and where Defendants' counsel, in his capacity as the hospital's

retained counsel, advised the hospital not to release certain medical

records involving the fall because he contends that such internal

information need not be produced in response to Plaintiff's counsel's

request and the Plaintiff's executed medical authorization, you inquire if

it is ethically permissible for Defendants' counsel to continue the

representation of Defendants in the personal injury matter after advising

the hospital in the matter involving the fall.

 

The appropriate and controlling rules relative to your inquiry are DR:5-

105(B) and (C). Disciplinary Rule 5-105(B) provides that a lawyer may not

continue multiple employment if the exercise of his independent

professional judgment will be or is likely to be adversely affected by his

representation of another client. However, DR:5-105(C) permits the

lawyer to represent multiple clients if (1) it is obvious that he can

adequately represent the interests of each and (2) each client consents to

the representation after full disclosure of the possible effect such

representation would have on the exercise of his independent professional

judgment on behalf of each.

 

Based upon your clarification and the additional facts provided in your

January 21, 1990 letter, wherein you indicate that there is no possibility

as to the hospital being named a third party defendant since the injuries

stem from unrelated incidents, the Committee is of the opinion that it

would not be improper for Defendants' counsel to represent both the

Defendants and the hospital if counsel received consent from both after

full disclosure of the possible effect of such representation on the

exercise of his independent professional judgment on behalf of each.

Lacking such consent, the Committee is of the opinion that it would be

necessary for Defendants' counsel to withdraw from representing either the

Defendants or the hospital.

 

The issue of whether the hospital was required to furnish certain records

as to Plaintiff's fall at the hospital is a legal question beyond the

purview of this Committee.

 

Committee Opinion January 4, 1990 Reconsidered and Superseded May 8, 1990