Legal Ethics Opinion No. 1392

Appearance of Impropriety--Participation in Boards/Organizations: 
Attorney Serving on Medical Malpractice Review Panels; Engaged
Simultaneously in Medical Malpractice Cases

You have requested that the committee opine as to the propriety
of attorneys serving on Medical Malpractice Review Panels,
constituted under Virginia Code section 8.0l-58l.l et seq. and
Medical Malpractice Rule 3(g)(3) of the Rules of the Virginia
Supreme Court, when those attorneys are engaged in the
representation of plaintiffs [presumably in medical malpractice
cases] or in the defense of such actions either individually or
as staff attorney for an insurance company.  You have asked that
the committee assume, for purposes of this opinion, that an
attorney engaged in such practice and simultaneously serving on
such a panel would avoid individual conflicts of interest, i.e.
the insurance staff attorney would automatically withdraw if one
of the parties were insured by the attorney's employer, and a
defense attorney with a private firm would avoid serving on
panels where any party was insured by one of the firm's major
clients.  Similarly, the committee will assume that a plaintiff's
attorney serving on such a panel would withdraw from
consideration of any issue involving any of his clients in order
to avoid any per se conflict of interest.  

The committee notes that such avoidance of conflicts is mandated
by Virginia Code section 8.0l-58l.3 which requires that the panel
consist of "two impartial attorneys" [emphasis added] as defined
in section 8.0l-58l.l: "an attorney who has not represented (i)
the claimant, his family, his partners, co-proprietors or his
other business interests; or (ii) the health care provider, his
family, his partners, co-proprietors or his other business
interests."  The committee notes further that panel members are
required, under section 8.0l-58l.3 to subscribe to an oath of
impartiality.  In addition, the committee believes that the panel
constitutes a quasi-judicial forum since it receives evidence,
hears testimony, and, under section 8.0l-58l.7, renders an
opinion adjudicating the rights of the parties. 

Although there is no disciplinary rule directly on point, in
similar fact situations, the committee has previously referred by
analogy to DR 9-l0l(A) which precludes a lawyer from accepting
private employment in a matter upon the merits of which he has
acted in a judicial capacity.

The committee has earlier opined that it is not per se improper
for an attorney who serves as general counsel for and member of
the board of directors of a hospital and nursing home to sit on a
medical malpractice panel.  LEO #484.  More recently, the
committee has opined that it is not per se improper for a
Commonwealth's Attorney or a defense attorney to hold membership
on a Community Corrections Resources Board, which provides
sentencing alternatives for certain nonviolent offenders,
provided that the attorney does not act on recommendations as to
individuals with whose prosecution or defense he was involved. 
LEO #l268.  See also LEOs #632 and ll95.

It is the committee's opinion that it is not per se improper for
attorneys who are engaged generally in the representation of
plaintiffs or defendants in medical malpractice actions, either
as private practitioners or as staff attorney for an insurance
company, to serve as members of Medical Malpractice Review
Panels, provided that the attorney complies with the requirements
of Virginia Code section 8.0l-58l.l et seq. as to impartiality
and recusal.  The committee observes that neither the legal
requirements of the Code nor the mandates of the Disciplinary
Rule provide for any client consent to vitiate the appearance of
impropriety.  Finally, the committee recognizes the public policy
necessity for participation on panels by attorneys knowledgeable
in matters related to medical malpractice, and opines that
compliance with the legal requirements for impartiality will
constitute sufficient avoidance of any appearance of impropriety
as articulated in DR 9-l0l(A).

Committee Opinion 
January 14, 1991