ETHICS DOCKET NO. 1988-80

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1988-80

Referrals: Attorney Referring Client To Medical Clinic In Which Attorney Has An Ownership Interest

Your question concerns a lawyer ""who wishes to become an owner in a medical clinic which is staffed by a doctor and therapists who will provide medical care and therapy for persons injured in accidents."" The lawyer anticipates that, from time to time, one or more of his clients will ask him to recommend a doctor for treatment. You ask whether it would be unethical for the lawyer ""to advise these clients in writing that he has an interest in a medical clinic, and that they are entitled to seek medical treatment there, if they so desire.""

Under the Maryland Rules of Professional Conduct, business and other financial transactions between a lawyer and his or her client are governed by Rule 1.8. Rule 1.8 provides, in relevant part:

""(a) A lawyer shall not enter into a business, financial or property transaction with a client unless:

(1) the transaction is fair and equitable to the client; and

(2) the client is advised to seek the advice of independent counsel in the transaction and is given a reasonable opportunity to do so.

(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation.""

The Comment to Rule 1.8 explains the underlying rationale for these rules, as follows:

""As a general principle, all transactions between client and lawyer must be fair and reasonable to the client. 
In such transactions a review by independent counsel on behalf of the client is often advisable. The lawyer is required by paragraph (a) (2) to advise the client to seek advice of independent counsel and to give the client a reasonable opportunity to do so. Furthermore, a lawyer may not exploit information relating to the representation to the client's disadvantage. See paragraph (b). For example, a lawyer who has learned that the client is investing in specific real estate may not, without the client's consent, seek to acquire nearby property where doing so would adversely affect the client's plan for investment.""

We do not perceive anything in Rule 1.8, or the accompanying Comment, that precludes a lawyer from making the type of referral, with disclosure, described in your inquiry.

In several earlier opinions, this Committee considered some of the ethical problems inherent in a lawyer's practice of a second, ""law-related"" profession. The Committee warned that, even though dual professional practices are not per se unethical, they nonetheless raise serious concerns that the second profession, especially if ""law-related"", would be used to ""feed"" the law practice or could impair the lawyer's ability to exercise independent judgment on behalf of a client. See, e.g., Ethics Opinion 78-7 (use of insurance business to feed law practice); Ethics Opinion 83-48 (lawyer-accountant); Ethics Opinion 86-23 (""feeding"" law practice as financial advisor). We do not, however, consider the operation of a medical clinic as constituting a ""law-related"" profession and, therefore, do not believe those earlier opinions to be apposite.

Thus, for example, in ABA Informal Opinion 83-1497, the ABA Committee on Ethics and Professional Responsibility addressed the somewhat closer question of whether, under the Model Code of Professional Responsibility, a person licensed to practice both law and medicine could serve the same client as both lawyer and physician. The ABA Committee first stated that ""[t]he practice of medicine is not generally the practice of a law related profession."" The Committee nonetheless cautioned that, ""where the medical treatment or condition has a bearing on the legal matter"", it would be ""unlikely . . . that a lawyer/physician can serve a client/patient as both lawyer and physician without violation of the Model Code"" - citing, for example, the proscription (now found in Rule 3.7) against a lawyer acting as an advocate at a trial in which the lawyer is likely to be a necessary witness. Subject to that caution, the Committee concluded its opinion as follows:

""[T]he Model Code does not prohibit a lawyer/physician from practicing both law and medicine in the same small town, from separate offices in the same building or from the same office or from serving the same client/patient as both lawyer and physician, if the distinction between service as a lawyer and physician is made clear and the lawyer/physician otherwise complies with the Model Code with respect to service as lawyer and the furnishing of legal advice.""

(A copy of ABA Informal Opinion 83-1497 is enclosed for your review and guidance.)

Similarly, we conclude that the type of referral described by you would not be unethical so long as (i) the lawyer clearly discloses to the client the fact that the lawyer has a financial interest in the medical center, (ii) the lawyer advises the client to seek the advice and recommendations of independent third parties, (iii) a clear distinction is made at all times when dealing with the client between the legal services that the lawyer provides to the client and the medical services that the medical center provides to the client, and (iv) the lawyer otherwise complies fully with the Maryland Rules of Professional Conduct with respect to his or her service as a lawyer and the furnishing of legal advice.