Opinion 97-13
(November 1997)
The inquirer advises that his daughter, who is a physician, owns a business that does various neurological and diagnostic testing. The inquirer has concerns regarding a potential conflict of interest that might occur if he represents a client who has been treated by a doctor who utilized the services of the inquirer's daughter's company, or if the inquirer has a client who he refers to his daughter for testing. The inquirer advises that he does not have any ownership or financial interests in the daughter's business.
Pennsylvania Rule of Professional Conduct 1.7b provides in part that,
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after full disclosure and consultation....
The Committee advises that the basic conflict here is the possibility that the inquirer's desire to see his daughter succeed professionally and financially, would operate to the detriment of the inquirer's client(s) should the inquirer use his daughter's services when otherwise, for whatever reasons he would not. In addition, there is an issue that the family relationship between the inquirer and his daughter may raise questions regarding the impartiality of the test results which could operate to the detriment of the client.
It is the opinion of the Committee that providing the inquirer is able to satisfy the requirements of both Rule 1.7b(1) & (2), that he may use his daughter's test results and services in the course of representing his clients. The Committee cautions that the once the inquirer meets the requirement of Rule 1.7(b)(1), his disclosure to his client under Rule 1.7(b)(2) must include the information that the testing service is owned by his daughter, and the impact that this information might have on the value of the test results as it relates to the client's case. Should the client indicate to the inquirer that the client does not want to waive the conflict, then the inquirer may not use his daughter's services and/or test results. Should the client agree to waive the conflict, the inquirer is then free to use the daughter's services and/or test results.
The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.