LEO: Conflict of Interest - Representing LE Op. 1061
Conflict of Interest - Representing Client Adverse to Former Client.
March 31, 1988
You have furnished the Committee the following facts:
Attorney A represented Y in successfully obtaining a Certificate of Public
Need ("CON") for a fixed specialized medical treatment facility in 1985.
In 1987, attorney A undertook to represent X in filing for a CON for the
same type of facility nearby, after unsuccessfully negotiating with Y or X
for over five months to establish a joint facility of a similar type.
Immediately thereafter in 1987, Y began to seek a CON for a similar, but
mobile treatment facility, to serve other hospitals in the same planning
district. The 1987 applications for both X and Y, while in separate review
cycles, are considered competing. Attorney A asks if he has a conflict of
interest. The Committee opined that DR:5-105(D) was not violated because
the two matters were not substantially related. A's initial representation
of Y was to establish the need for a fixed medical treatment facility and
that representation has been completed. A's later representation of X is
not substantially related because A is now representing a different client
in an attempt to show a need for an additional identical unit in another
facility. The interest of X is only adverse to Y's interest in its most
recent CON application.
You ask the following: (1) Is there a conflict of interest under
Disciplinary Rule 5-105(D) created by your representation of * * * and its
certificate of need application; (2) In this matter does Canon 4 require
your withdrawal from representation of * * *; and (3) Has * * * waived any
right to allege a conflict of interest due to their knowledgeable
acquiescence of your representation of * * * for over five months.
With regard to your first question, DR:5-105(D) states that "a lawyer
who has represented a client in a matter shall not thereafter represent
another person in the same or substantially related matter if the interest
of that person is adverse in any material respect to the interest of the
former client, unless the former client consents after disclosure." You
advise that while a member of your former law firm, you previously
represented in its CON application for its fixed site MRI to be located at
the * * *. You now represent * * * in their CON application to establish a
mobile MRI facility in Northern Virginia. The Committee does not believe
that these two matters are substantially related. Your representation of
* * * was to establish the need for a fixed MRI and that representation
has already been completed. The Committee does not believe that your
representation of * * * is substantially related merely because you are
now representing a different facility in their attempt to show a need for
a mobile unit at another facility. The Committee therefore opines that a
conflict of interest does not exist with your representation of * * *.
Your second question is whether Canon 4 requires your withdrawal from
representation of * * *. DR:4-101(B)(2) states that a lawyer shall not
use the confidence or secret of his client to the disadvantage of the
client. DR:4-101(B)(3) states that a lawyer shall not use a confidence
or secret of the client for the advantage of himself or a third person,
unless the client consents after full disclosure. Ethical Consideration 4-
6 [ EC:4-6] advises that the obligation of the lawyer to preserve the
confidences and secrets of his client continues after the termination of
his employment. Based upon the information provided in your letter, the
Committee opines that Canon 4 would not be violated. The Committee bases
this opinion on the fact that you state in your letter that the
information you learned during your former representation of * * * is now
a matter of public record. Furthermore, you state that you did not learn
any information other than that which is now public which would be
confidential since you withdrew from the former firm prior to the
initiation of operation of the MRI unit at the * * *.
Finally, you ask whether * * * waived any right to allege a conflict due
to their knowledgeable acquiescence of your representation of * * * for
over five months. The Committee does not generally support a waiver theory
as it relates to an attorney's ethical responsibility unless specifically
authorized by the Code of Professional Responsibility.
Committee Opinion March 31, 1988
For this opinion being reaffirmed, see LE Op. 1065.