Legal Ethics Opinion #1568

Confidences and Secrets--Conflict of Interest--Former Client:
Representing Plaintiff in Dental Malpractice Case After Having
Represented Defendant Dentist in Earlier Case

You have presented a hypothetical situation in which an attorney
with Firm A has been asked to be co-counsel in a medical
malpractice suit against a local dentist.  Counsel for the
dentist has contacted the attorney for Firm A and advised that he
believes that it is a conflict of interest for this attorney to
serve as co-counsel in the suit because the attorney for Firm A
had previously represented the local dentist in a malpractice
suit which involved complications arising after utilization of a
certain procedure.  Additionally, it is alleged that the attorney
for Firm A prepared wills for the local dentist and his wife. 

You have asked the committee to opine whether, under the facts of
the inquiry, it is a conflict of interest for the attorney to
serve as co-counsel in a malpractice action against a dentist
when the attorney had previously defended the dentist in a
malpractice action and prepared wills for both the dentist and
his wife.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DRs 4-101(B) which provides for the preservation
of client confidences and secrets; and 5-105(D) which 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.  

The committee is of the opinion that the current representation
is substantially related to the former representation of the
dentist.  Both the current and former representations involve the
same dentist whose professional competence is at issue in both
malpractice suits.

The committee is also of the view that the possession of
confidential information may be imputed to the attorney in Firm A
based upon his having earlier represented the dentist in a
malpractice action and upon has having drawn wills for the
dentist and his wife.

Thus, the committee opines that it would be improper for the
attorney in Firm A to serve as co-counsel to the present client,
absent consent of the former client after full disclosure, based
upon the substantial relationship of the matters as well as upon
the presumption that the attorney possesses confidential
information which could be used to the disadvantage of the former
client/dentist or to the advantage of the current client/patient. 
See LEO #1516

Committee Opinion
December 14, 1993