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Conflicts-of-Interest Disqualification in Medical Malpractice Litigation
Published online by Cambridge University Press: 28 April 2021
Extract
Less than two decades ago it was thought sufficient to say, “When a practitioner is in doubt on an ethical question, the best answer is usually No.” A more recent commentator has suggested, however, that “[s]uch platitudes have become increasingly inadequate to guide the attorney facing conflicts of interests in the private practice of law.“ Because of the general vagueness of the American Bar Association's Model Code of Professional Responsibility, and of state codes based on it, courts have begun to fashion a vast “common law” of conflicts of interest. A particularly controversial entry to this body of common law is the opinion of Justice Paul Liacos, sitting as single justice in the Massachusetts case of White v. Kaplan. This article examines the opinion and its theoretical suppon.
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References
Frank, J.P., The Legal Ethics of Louis D. Brandeis, Stanford Law Review 17:683, 709 (1965), quoted in Note, Developments in the Law: Conflicts of Interest in the Legal Profession, Harvard Law Review 94(6):1244, 1284 (April 1981) (hereinafter cited as Conflicts). The author wishes to acknowledge his heavy reliance on the analysis set forth in the Conflicts article in preparing this article. It is highly recommended reading for those who wish to explore this topic in more depth.Google Scholar
Conflicts, supra note 1, at 1284. See also Patterson, L.R., The Function of a Code of Legal Ethics, University of Miami Law Review 35(4):695 (July 1981).Google Scholar
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Conflicts, supra note 1 at 1476 (emphasis added). The procedural device of permitting the disqualification of an attorney on conflict of interest grounds only if this issue is raised by a former or present client has been severely criticized as a “binary standard” that is “inappropriate” and an “unfortunate rubric,” because it fails to take into account that inadequate advocacy must be eliminated to preserve the integrity of the trial as a lawmaking process, and “ignores the court's role in policing egregious misconduct on the part of attorneys practicing before it.” Id. at 1480. See Estates Theatres, Inc. v. Columbia Pictures Indus., 345 F. Supp. 93, 98 (S.D. N.Y. 1972): “When the propriety of professional conduct is questioned, any member of the Bar who is aware of the facts which give rise to the issue is duty bound to present the matter to the proper forum.”Google Scholar
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Justice Liacos relied primarily on two cases for his Canon 9 analysis: Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973) (lawyer who had previously represented Burlington Industries disqualified when he attempted to represent Ernie, a Burlington subsidiary, in litigation against Patentex; the matters at issue in the two suits were deemed to be “substantially related” and the court found the invocation of Canon 9 “particularly appropriate”); Hull v. Celanese Corp., 513 F.2d 568 (9th Cir. 1975) (in-house counsel for Celanese switched sides to become a plaintiff—rather than an attorney—for the other side in the same litigation; the court held that Canon 9 prohibited the switch even though there was no evidence that any confidential information had been transmitted, because such information might be transmitted and “the breach of confidence would not have to be proved; it is presumed in order to preserve the spirit of the Code”). Even though the drafters of the Model Rules rejected the Canon 9 goal of avoiding “the appearance of impropriety” as a disciplinary standard, the courts will likely continue to consider it as a factor in determining whether an attorney ought to be disqualified. Courts have the power to disqualify lawyers (even absent proof of an ethical violation) in order to protect the parties or to maintain the integrity of the bar and the judicial system. N.J. Moore, Conflicts of Interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and Controversy, Texas Law Review 61(2):211, 228–29, n. 93 (Oct. 1982).Google Scholar
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See Annas, G.J., Glantz, L.H. and Katz, B.F., Informed Consent to Human Experimentation (Ballinger, Cambridge, Mass., 1977), 42–54. And see Note, The Client's Right to Consent to Potential Conflicts of Interest, Capital University Law Review 11(3):625 (Spring 1982); and Comment, Dual Representation in Unrelated Matters Permitted with Client Consent When Firm Can Protect Client's Best Interests, Washington University Law Quarterly 60(3):1155(Fall 1982).Google Scholar
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Id. at 1503. See Borman v. Borman, 393 N.E.2d 847 (Mass. 1979): [T]he code is self-executing. We expect lawyers to know and comply with its provisions. If an attorney is unsure whether in a given case his conduct violates the code, he should terminate the questionable conduct or seek the advice of the appropriate Committee on Ethics and Professional Responsibility. If he persists in questionable conduct he risks disciplinary action including disbarment. When a lawyer, exercising his best judgment, determines that his employment will not bring him into conflict with the code, disqualification may occur only if the trial court determines that his continued participation as counsel taints the legal system or the trial of the cause before it. (Id. at 856 [emphasis added].)Google Scholar