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Law firm disqualified based on attorney’s previous representation of doctor

November 13, 2014

In a case involving the conflicts that arise and obligations that remain when lawyers move from one firm to another, the Indiana Court of Appeals concluded that a law firm hired to represent plaintiffs in a medical malpractice lawsuit must be disqualified based on an attorney’s prior representation of the doctor being sued.

“We emphasize to the parties that we recognize that the imputed disqualification of an entire law firm is a serious penalty and that we do not make our decision lightly. That said, we must be cognizant that ‘public trust in the integrity of the judicial process requires that any serious doubt be resolved in favor of disqualification,’” Judge Terry Crone wrote, citing Robertson v. Wittenmyer, 736 N.E.2d 804, 806 (Ind. Ct. App. 2000). “This case squarely raises such serious doubt.”

An unnamed doctor filed a motion to disqualify the law firm Montross Miller Muller Mendelson & Kennedy from representing Robin Sykes and Thomas Williams’ in their lawsuit for negligence and loss of consortium against the doctor and an unnamed hospital.

The doctor claims that the law firm has an imputed conflict of interest because its attorney, Kathleen Clark, previously represented him as his primary lawyer in six medical malpractice cases. Clark represented him prior to her joining MMMMK. As an intake attorney, Clark interviewed the plaintiffs and recognized the doctor’s name as her former client, but still presented the claim to the firm, at which Michael S. Miller decided to take the case.

The doctor’s attorney raised concerns that the law firm’s representation violated Indiana Rules of Professional Conduct 1.9 and 1.10, but MMMMK said it had implemented “internal security procedures” to screen Clark from participating in the case. The firm had represented the plaintiffs for more than 11 months at this point. The doctor filed a motion to disqualify the firm based on Clark’s prior representation of him, but the trial court denied his motion.

On interlocutory appeal in XYZ, D.O., v. Robin Sykes and Thomas Williams, and ABC Hospital, 41A01-1402-CT-85, the Court of Appeals agreed with the doctor, relying on a three-step test adopted in Gerald v. Turnlock Plumbing, Heating & Cooling, LLC 768 N.E.2d 498, 502 (Ind. Ct. App. 2002), to determine whether a migrating lawyer, and in turn that lawyer’s new firm, should be disqualified from a present representation due to a prior representation.  

MMMMK claimed that the current matter is not substantially related to the prior representations, and so there is no conflict of interest implicated. But part of the plaintiffs’ claims may rely in part on the medical malpractice cases in which Clark represented the doctor in order to prove the negligent credentialing claim against the hospital. A similar claim was raised in the cases Clark handled. She also received confidential information from the doctor when representing him, Crone pointed out.

And, Because Clark was the doctor’s primary and, at times, only lawyer in the prior cases, she cannot be screened to avoid imputation of the conflict to MMMMK.  

 

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