Can a lawyer defend physicians in a conspiracy suit when his former law partner was president of the hospital at the center of the dispute?

Plain-English summary

A doctor (Plaintiff) sued another doctor (Defendant) and others for conspiracy to keep Plaintiff off a hospital's medical staff. The inquiring attorney had been retained to defend. During the underlying events in 1969, the inquiring attorney's partner had been president of the hospital and chairman of its board; the inquirer left that partnership in July 1969, a few months after the dispute began. Plaintiff objected to the representation, arguing the inquirer's prior status as a partner of the hospital president created a disqualifying conflict.

The committee said there would be no proscription if Plaintiff consented, but in light of his objection the critical issue was whether the inquirer or his former partner had access to confidential or privileged information about Plaintiff's claim while the inquirer was the hospital president's partner. Both the inquirer and his former partner disclaimed having represented Plaintiff or having received or had access to any such information, and the committee assumed those representations true because it does not decide issues of fact. On that basis, the committee opined that the inquirer was not precluded from the representation, citing Florida Opinions 66-60, 67-16, 68-10, and 69-32. It cautioned, however, that the circumstances were likely to subject him to suspicion and adverse criticism, that he had to exercise utmost good faith, and that any privileged or confidential information his former partner had gained from Plaintiff or the hospital during the relevant period would disqualify the inquirer whether or not he personally received it. One member, citing Florida Opinion 71-14, felt the inquirer would be better advised to discontinue the representation unless Plaintiff consented.

Currency note

This opinion was issued in 1972, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rules 4-1.9, 4-1.10, and 4-1.6 before relying on any specific requirement mentioned here.

Common questions

Q: Did the former partnership with the hospital president automatically disqualify the lawyer?

A: Under this opinion, no. The committee made disqualification turn on whether the lawyer or his former partner had access to confidential or privileged information about the plaintiff's claim, not on the partnership alone.

Q: What would have changed the result?

A: If the former partner had gained any privileged or confidential information from the plaintiff or the hospital about the matters in dispute, that would disqualify the inquirer whether or not he personally received it.

Q: Could the plaintiff's consent have resolved the question?

A: Yes. The committee said there would be no ethical proscription on the representation if the plaintiff gave his consent.

Background and rules framework

The opinion analyzed a conflict arising from the lawyer's former partnership and the possibility that confidential information had been shared within that firm. In current Florida practice the duties to a former client are in Rule 4-1.9, imputation within a firm in Rule 4-1.10, and the confidentiality duty in Rule 4-1.6; the Model Rule analogues are Rules 1.9, 1.10, and 1.6.

Citations and references

Other opinions cited:

• Florida Opinions 66-60, 67-16, 68-10, 69-32, 71-14

See also

• FL Bar Ethics Op. 72-41: "Of Counsel" and Imputed Conflicts
• FL Bar Ethics Op. 76-24: A Former Law Clerk and a Bankruptcy Conflict
• FL Bar Ethics Op. 84-3: Transitional Conferences After a Conflict Withdrawal

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-72-17/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-17-1-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 72-17
June 28, 1972
Advisory ethics opinions are not binding.
The former law partner of a hospital president is not precluded from representing defendant physicians in a suit brought against them by another physician alleging conspiracy to deny him staff privileges, if neither of the former partners represented the plaintiff during the period in question.
Opinions: 66-60, 67-16, 68-10, 69-32, 71-14
Committeeman Zehmer stated the opinion of the committee:
A member of The Florida Bar inquires whether he is precluded by ethical considerations from representing one doctor (hereinafter referred to as Defendant) in an action brought by another doctor (hereinafter referred to as Plaintiff) because of the circumstances described below.
In February 1969, the medical staff of a hospital voted, while Defendant was a member of the hospital staff, to deny staff privileges to Plaintiff. The following month, the hospital terminated the staff privileges of Defendant for reasons not considered by the committee. This action generated extensive litigation between Defendant and the hospital. Several months after Defendant's dismissal from the hospital staff, there was a medical staff reorganization and Plaintiff was then admitted to staff privileges by the hospital. At the time these events occurred, the inquiring attorney's partner was president of the hospital and chairman of the hospital's board of directors. On July 15, 1969, some four months after the initial controversy between the hospital and Defendant arose, the inquiring attorney withdrew from this partnership and set up his own practice.
After the litigation between Defendant and the hospital had been concluded and Plaintiff had been granted staff privileges, Plaintiff brought an action against Defendant for conspiracy by Defendant and other doctors to keep Plaintiff off the medical staff of the hospital. The inquiring attorney has been retained by Defendant and these doctors to defend them in that action. Plaintiff objects to the inquiring attorney's representing Defendant, asserting that his prior status as a partner of the hospital president during the period from February to July 1969 presents a conflict of interest which precludes the inquiring attorney from ethically representing Defendant.
Certainly there would be no ethical proscription on the inquirer's representing Defendant, if Plaintiff should give his consent. But, in view of Plaintiff's objections, the critical issue is whether the inquiring attorney or his former partner had access to confidential or privileged information relating to Plaintiff's claim during the time the inquirer was a partner of the hospital's president.
The inquiring attorney and his former partner both disclaim that the former partnership represented Plaintiff during this period of time and also deny that the inquiring attorney received or had access to any confidential or privileged information which related to Plaintiff's claims of conspiracy. For purposes of this opinion, the committee assumes these representations to be true, as the committee does not undertake to decide issues of fact.
Since the inquiring attorney did not receive or have access to such confidential or privileged information, it is the committee's opinion that the inquiring attorney is not precluded by ethical considerations from representing Defendant in this action. See Florida Opinions 66-60, 67-16, 68-10, and 69-32. However, the Committee does caution the inquiring attorney that the circumstances of his representation in this case are likely to subject him to suspicion and adverse criticism, and that he must exercise utmost good faith and be absolutely certain that his former partner did not provide legal representation to Plaintiff during the time in question and did not gain any privileged or confidential information from Plaintiff or the hospital concerning the matters now in dispute. Any such disclosure to the inquiring attorney's former partner during the period while the inquirer was a member of that firm also would disqualify the inquiring attorney from continuing the representation of Defendant, whether or not he personally received such information.
One member of the Committee, referring to Florida Opinion 71-14, feels that the inquiring attorney would be better advised to discontinue the representation unless he can obtain consent from Plaintiff to continue his representation of Defendant.