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.