QUESTION: Attorney represents a health care provider in a medical malpractice case. Client is being sued for professional negligence. Attorney discovered from Client that the attorney representing the plaintiffs in the case had previously represented Client in a disciplinary proceeding before the state licensing board. The previous representation ended in a number of years ago. The disciplinary proceeding did not involve the plaintiffs in the pending malpractice claim, but there are allegations in the malpractice action that Client is incompetent, and that Client’s alleged employer was negligent in employing Client due to incompetence. Confidential information gained in the prior representation could be used against Client in the present litigation. Attorney filed a motion to disqualify plaintiff’s counsel. Does Attorney have an obligation to report this pursuant to Rule 4-8.3?
ANSWER: The responses to the motion to disqualify and the evidence at any hearing on the motion should serve to clarify the facts of the situation. (1) If the court specifically finds that there is no conflict, or further facts lead Attorney to believe that opposing counsel had a good faith belief that there was no conflict, Attorney does not have an ethical obligation to report opposing counsel. (2) If the court disqualifies opposing counsel, but Attorney believes that opposing counsel had a good faith belief that there was no conflict, Attorney does not have an ethical obligation to report opposing counsel. (3) If the court disqualifies opposing counsel and Attorney believes that opposing counsel did not have a good faith belief that there was no conflict, Attorney has an obligation to report opposing counsel. However, under Rule 4-8.3(c), that duty is conditioned on consent by Client. In any event, as part of Attorney’s duty under Rule 4-1.4, Attorney should advise Client of the option to file a complaint with OCDC.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

© Copyright 2023