MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1995-12
Conflict of Interest: Representation of divorced spouses in separate matters where one spouse has an interest in the outcome of the matter involving the other spouse
You state that you currently represent Mr. X in a social security disability claim, and in connection therewith you have access to Mr. X's medical records. When Mr. X was still married to Ms. Y, you were consulted by both parties regarding a claim for personal injuries sustained by Ms. Y. At that time the parties' divorce was imminent, and you advised them that a claim for loss of consortium was worthless. Accordingly, you obtained a written retainer agreement from only Ms. Y in connection with her personal injury claim, and you continue to represent her in that action.
Subsequently, the parties were divorced, and you recently were informed that Mr. X was assigned a 5O percent interest in the proceeds of Ms. Y's claim.
You have advised Mr. X to obtain separate counsel to advise him with respect to his interests in Ms. Y's personal injury claim, and you ask us for advice on the following matters:
1. Do you have a conflict of interest due to your representing the parties in their separate cases?
2. Was it appropriate for you to advise Mr. X to obtain separate counsel regarding Ms. Y's personal injury claim, or should you have taken some ""less drastic"" action?
3. In the event Mr. X engages counsel to intervene in Ms. Y's personal injury suit to file a claim for loss of consortium, what are your ethical obligations with respect to Mr. X's medical records, which you perceive to be in conflict with a claim for loss of consortium?
Rule 1.7 of the Maryland Rules of Professional Conduct states the general rules pertaining to conflicts of interests. Absent client consent, representation which will be directly adverse to another client, or if the representation may be materially limited by the lawyer's responsibilities to another client, a third person, or the lawyer's own interests is prohibited. Under the facts given, it is not apparent that your representation of the parties on their respective claims against others would result in a conflict of interest.
The fact that Mr. X was assigned a 50% interest in proceeds of Ms. Y's claim would not, in-and by itself, present a conflict of interest in your continuing to represent the parties on their separate claims. Generally, an assignment of the proceeds of a claim vests equitable title to the assigned funds in the assignee, here Mr. X. Hernandez v. Suburban Hospital, 319 Md. 226 (1990). It appears that both of the parties would have an identical interest in maximizing Ms. Y's claim.
However, there may be issues arising as a result of the assignment, such as its interpretation and whether the proceeds assigned were net of attorneys' fees, for example, which could result in a direct conflict between Ms. Y and Mr. X. As to these you could not represent one client against the other, since you could not simultaneously represent both clients on unrelated matters and at the same time act on behalf of one as an advocate against the other. Rule 1.7. Thus, it was appropriate for you to advise Mr. X to seek his own counsel to advise him as to his interests in Ms. Y's claim. Similarly, you should advise Ms. Y that you could not represent her against Mr. X in the event of a dispute regarding the assignment.
In the event Mr. X engages counsel and intervenes in the action on Ms. Y's personal injury claim, it appears that the basis therefore would be: (1) that as an assignee, Mr. X is a party in interest and has a right to be named as a party. Maryland Rules 2-201 and 2-241; See, Summers v. Freishtat, 274 Md. 404 (1975); and (2) that Mr.X and Ms. Y can assert in a joint action a claim for inquiries to the marriage relationship. Deems v. Western Maryland Ry. Co., 247 Md. 95 (1967). Whether or not Mr. X is entitled or is required to intervene on these, or any other grounds, is a matter of law, as to which we offer no opinion.
Under Rule 1.6, information relating to your representation of Mr. X, including but not limited to, his medical records, cannot be disclosed by you, except for certain exceptions stated in the Rule, unless Mr. X consents or unless the disclosures are impliedly authorized by Mr. X. However, it is not apparent in what way the mere fact that you have access to Mr. X's medical records would present a conflict, in the event a joint action by Mr. X and Ms. Y can be and is brought on a claim for loss of consortium.