Public Health Law Map - Beta 5 - Medical and Public Health Law Site

of the facts diligently or appreciate how a jury will view the physician’s actions. These
misperceptions increase the risk of poor legal advice. Just as physicians are cautioned
about treating their close friends and family members, so should physicians take care
to ensure that their attorneys are objective.
1. Doing Business with Your Clients
Whenever a client is in a business venture with an attorney, there is potential for
confusion of roles. If the attorney acts only as a businessperson, there is no conflict
of interest. However, if the attorney also provides legal services or makes legal
decisions, there is a conflict with the other participants in the venture. It is not
unusual for attorneys to be partners or shareholders in business ventures in which the
attorney also provides legal advice. The attorney may be an investor as well as
counsel, or he or she may provide legal services as his or her contribution to the
venture.
As long as the interests of all of the participants are the same, this conflict will not be
a problem. But in most ventures, the interests of the participants are not the same. It
is best if the legal work for the business is done by an attorney who has no financial
or other interest in the business. If this is impractical, the nonattorney participants
should have an uninvolved separate attorney review the basic business documents.
They should also consult with their personal attorney whenever there are changes in
the business organization.
2. Conflicts with Other Clients
Attorneys who represent clients with adverse interests eventually will be forced to
compromise the interests of at least one of the clients. This is a particular problem in
legal specialty areas such as medical law. There are advantages to the client in hiring
a law firm that has experience in the problems at hand. In medical law, this often
means a law firm with experience in representing health care providers. Twenty
years ago, there were few conflicts between medical clients. Now, with the
competition between hospitals and between individual physicians, it is important to
ask the identity of the law firm’s other medical care clients. (This is not privileged
information.) If the law firm represents real or potential competitors, it is best to hire
a different law firm. Sometimes it is impossible to find another law firm with the
appropriate expertise. It is then up to the law firm and the client to discuss the
potential conflicts and establish a plan for avoiding them. This is especially
important in medical malpractice defense.
a) Medical Malpractice Defense
In most medical malpractice cases, the physician is insured. A condition of this
insurance is that the insurance company pays for the defense of a case. This
benefits the insurance company because it is mostly its money that is at risk. It
benefits the physician because attorneys are expensive, and a principal reason
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