Conflict of interest—a phrase that is taken seriously in the legal field. In fact, the first step after an initial consultation with any attorney is the process of doing a “conflict check” within the law firm to make sure there are no existing clients in direct conflict with the representation of the new client. It is this special relationship that I address here: guidance for attorneys and clients from the Rules of Professional Conduct (RPC), specifically in the context of medical malpractice. The RPC’s act to support the public policy that clients should receive legal counsel without a conflict of interest on the part of the attorney. In fact, it is this sacred bedrock principle that clients rely on so they can freely divulge their deepest vulnerabilities in exchange for the proper legal advice. To that end, the importance of requiring attorneys to fully disclose any current or prior relationships that may interfere with representation is paramount and a well-accepted requirement under the Rules.

The issue that has troubled me for almost two decades has been the more complex “tri-partite” relationship in medical malpractice litigation between the attorneys, the doctor-policyholder and the insurance carrier. In such cases, doctors are assigned attorneys by the insurance carrier, creating a triangular relationship among the three parties. But, a fundamental cloud is created when the current RPC fails to define “client” as the insurance company in this relationship. The assumption being made is that the doctor understands the nuances of this relationship. To me, it is clear that they do not. This is made more monumental by the emotional and financial nature of such lawsuits.

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