The Florida Bar

Ethics Opinion

Opinion 74-8

June 14, 1974
Advisory ethics opinions are not binding.
It is improper for a lawyer to represent a client in a suit against a hospital when a member of the
lawyer’s firm is also a member of the commission for the hospital district in which the defendant
hospital is located.

EC 8-8, DR 5-105(D), Canon 9, EC 9-2
Vice Chairman Sullivan stated the opinion of the committee:
A member of The Florida Bar is a member of the commission for a hospital
district. The commissioners meet monthly to determine overall policy but do not
participate in the day-to-day operation of any hospitals in the district. A
commissioner’s duties and responsibilities are in some ways analogous to those of
a member of the board of directors of a corporation.
A regular client of the commissioner-attorney’s firm intends to sue a hospital
in the district for malpractice arising out of allegedly negligent treatment in the
emergency room. The proposed lawsuit will not involve any acts or decisions of
the commission or of any commissioner. The hospital has malpractice insurance
which will fully cover any damages that may be recovered, and the insurance
company will have complete control of the lawsuit. The commission will make no
decisions regarding the handling of the litigation; there is no confidential
information that could or would be made available to the law firm because one of
its members is on the commission.

Another member of the firm asks whether his partner’s membership on the commission
presents a conflict of interest that will prevent his firm’s representing the client in the
malpractice action. We are of the opinion that a conflict of interest does exist and that such
representation would be improper.
We note that questions could arise regarding the insurance coverage, including solvency
of the insurer or a claim of non-cooperation, even though there is no question about coverage of
the risk and policy limits. Even if those problems do not arise, the fact that the hospital has
malpractice insurance does not necessarily isolate the commissioners from any responsibility or
involvement. Certainly, a substantial recovery by the plaintiff would raise the question of the
hospital’s insurance rates and result in publicity adversely affecting the hospital’s reputation.
The attorney’s commissioner-partner could, then, have a direct interest arising from his
responsibilities to the hospital district as well as the obvious interest in his law firm’s fee. The
commissioner should not represent the client in such an action. EC 8-8. Therefore, his partner
should not. DR 5-105(D).

The fact that the commissioner’s law firm is suing a hospital in the district over which the
commission has policy-making and supervisory responsibility will subject it to suspicion and
criticism even though the firm handles the case with complete propriety, as we assume it would.
We believe, then, that at a minimum the law firm’s participation in the case would create an
appearance of impropriety which precludes its accepting the representation. Canon 9, EC 9-2.