Opinion 92-4
(May 1992)

You have requested guidance on the question of whether an attorney may accept the representation of a patient, referred to the attorney by the patient's physician, for the purpose of petitioning a Worker's Compensation insurance carrier to pay overdue medical bills for the patient's treatment. Your request specifically notes that the attorney would be paid by the physician, and that the monies recovered as a result of the patient's petition would be paid to the physician.

You have provided the Committee with the following facts:

Patient is receiving worker's compensation pursuant to a notice of compensation payable issued by the employer's Worker's Compensation insurance carrier. The carrier has not paid the physician's bills for quite some time, and the physician wishes to take action to compel payment. However, governing Worker's Compensation law provides that only a claimant (i.e., patient) may file a petition against the employer's carrier to compel such payment; a medical care provider may not. In your scenario, the patient shall be only a nominal plaintiff, with the recovery being paid to the physician, who shall pay the attorney's fee. You have advised the Committee that governing Worker's Compensation law does not permit the physician to accept an assignment of the patient's recovery in lieu of payment. Therefore, the physician and patient have agreed, inter se, that the physician shall accept, as full payment, all funds awarded to the patient pursuant to the patient's petition, whatever that sum may be. The Committee has not researched the question of whether this contractual arrangement is, de jure, an assignment, and expresses no opinion on that question.

The Rules of Professional Conduct do not expressly prohibit a tripartite relationship such as the one you pose. However, such a relationship is fraught with potential problems under the Rules, and great care must be taken to avoid these problems. Of primary concern is the fact that, while the attorney is nominally representing and rendering services to the patient, it is the physician who is paying the fee and eventually recovering the funds. Rule 5.4(c) addresses the problem presented:

A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.

Under this Rule, if the physician seeks to influence the attorney's conduct of the case in a manner which, in his judgment, is not in the best interest of the patient, the attorney must give precedence to the interests of the patient. Moreover, both the physician and the patient should be advised of this possibility at the outset of the representation, as Rule 1.2(a) and (c) requires the client's consent as to any limitations on, or special circumstances concerning, the scope of the representation.

Attention should also be paid to Rule 1.7(b), which prohibits a lawyer from representing one client if that representation would materially limit the lawyer's responsibilities to another client or a third person, unless the attorney reasonably believes that no adverse effect would result and the client consents after full disclosure. This Rule, like Rule 5.4(c), would be implicated if the physician and the patient disagreed, for example, over whether or not to accept a settlement offer.

Be mindful that discussions with the physician about confidential aspects of the patient's case could run afoul of Rule 1.6, which prohibits a lawyer from revealing information relating to the representation of a client, unless the client consents. In addition to requiring full disclosure and client consent before an attorney can accept payment from someone other than the client himself, Rule 1.8(f) requires that client confidentiality is maintained no matter who is paying for the attorney's services. The Committee is assuming that you have complied with Rule 1.8(f)

This situation could be avoided if the attorney is engaged by both the physician and the patient, but such a multiple client representation may only be undertaken in a manner consistent with the provisions of Rule 1.7(b)(2):

When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

In sum, while the situation presented by your inquiry is not expressly prohibited, it presents several concerns which must be the subject of adequate disclosure to and consultation with the physician and the patient, before the representation can proceed.

   

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.