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