The Florida Bar

June 28, 1972

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.

[Revised: 08-24-2011]