Advisory Opinion:
1939
Year Issued:
2001
RPC(s):
RPC 1.6; 1.7; 1.8; 1.9
Subject:
Conflict of interest with former client
The inquiring lawyer asks if he may ethically represent a client in an action against a former client. The lawyer states that he collected debts that had been assigned to a collection agency and prosecuted an unlawful detainer action for a property management firm. The debts were owed by patients to hospital A and the detainer action was taken with respect to rental property owned by the hospital. The lawyer states he had no contact with the hospital but only with the collection agency and the property management firm. The lawyer is no longer engaged by the collection agency and that he has not handled any unlawful detainer actions for more than six months. The hospital is part owner of a medical clinic that employs a doctor or contracts with the doctor as an independent contractor. The lawyer asks if he may represent a client in a malpractice action against the doctor, the clinic and the hospital.
The committee opined that for purposes of responding to the inquiry, the committee does not determine whether the hospital was the inquirer’s client, either as to the collections or the unlawful detainer work described because there is insufficient information to make that determination. The committee simply assumes, without deciding, that such a relationship existed. Based upon the facts presented, we conclude that RPC 1.7, 1.8,
and 1.9 would not preclude the inquirer from representing the client in the malpractice action described.
RPC 1.7 and 1.8 would not apply because the hospital is not a current client. RPC 1.9 addresses conflicts regarding former clients and requires disclosure and consent of the former client when a lawyer, who has formerly represented that client in a matter, represents another person in the same or substantially related matter in which that person’s interests are materially adverse to the interests of the former client. Based upon the information provided, there is no basis for concluding that the collections and unlawful detainer matters are substantially the related to the malpractice claim of the current client. Accordingly, the inquirer may proceed without the consent of the hospital. Note, however, that RPC 1.6 and 1.9(b) prohibit the inquirer from revealing secrets or confidences relating to the hospital that may have been acquired in the unlawful detainer or collection actions, and from using those confidences or secrets to the hospital’s disadvantage, except as RPC 1.6 would permit.
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