Opinion 1667

The Committee discussed your inquiry regarding whether a conflict of interest exists because some of your firm’s clients have a specific doctor (Dr. X) as a necessary witness as treating physician while at the same time your firm is suing this same doctor as a party defendant in a contractual dispute on behalf of another client/plaintiff (Ms. F). The Committee concluded that because there is no attorney/client relationship between you, your law firm and Dr. X, the relevant conflict of interest rule is RPC 1 .7(b). Under this rule, you and your law firm may represent plaintiffs for whom Dr. X is a treating physician, while at the same time representing Ms. P suing Dr. X in an unrelated matter. No consent of Dr. X is required, but consent of the client/plaintiff for whom Dr. X is a treating physician and consent by Ms. P who is suing Dr. X is required if there is a reasonable basis for belief that your judgment, loyalty, or effectiveness would be limited in suing Dr. X on behalf of Ms. P because of fear of alienating Dr. X as a potential witness for other clients. This consent requirement includes Ms. P, as well as current and future clients for whom Dr. X was or will be a potential testifying witness.

Your advice to your firm’s associate regarding the handling of Ms. P’s case may be evidence that judgment, loyalty or effectiveness for Ms. P would be impaired. If you and/or your law firm has formed a bias against Dr. X, (as reflected in the inquiry letter) which would interfere in utilizing Dr. X’s testimony in future plaintiff’s actions where Dr. X was the treating physician, the conflict may be non-waivable if the independent judgment on behalf of your client is impaired because of the bias. It is also non-waivable if Dr. X has a bias.

It is possible that Dr. X reasonably misunderstood your role and your law firm’s role when he referred cases to you and when he cooperated with your firm on behalf of your plaintiff clients. If Dr. X reasonably misunderstood these roles, then you have an affirmative duty to explain the difference between an attorney/client relationship and an attorney/witness relationship on behalf of the client. RPC 4.3.

There is nothing ethically improper in you or your law firm refusing to represent other clients where Dr. X is the treating physician. That would obviously avoid the RPC 1 .7 potential violation. Similarly, there is no ethical impropriety in representing future clients where Dr. X is peripherally involved so long as RPC 1.7(b) and (c) are satisfied in the following way:

(1) There must in fact be no bias and/or attitude on the part of you or your law firm against Dr. X which would interfere with independent judgment in evaluating the role of Dr. X in the client’s case and in calling Dr. X as a witness.

(2) Assuming there is no such attitude or bias that would interfere with independent judgment, then a waiver under RPC 1 .7(b)(2) should be acquired in writing.

(3) While the rule does not require that the notice of the potential conflict be given in writing to the client, a wise lawyer does so.

There was no ethical impropriety in the manner in which you contacted Dr. X through counsel once this issue arose while the firm was representing a client in an adverse proceeding against Dr. X. Going through counsel was the appropriate way to accomplish that communication under RPC 4.2.

Finally, you asked how to refer Dr. X to the relevant medical authorities. The RPC Committee does not refer medical ethics complaints