Wednesday, August 01, 2012
Question: Can I hire Kerr, Russell and Weber (“KRW”) to represent me or would KRW representing both an MDA member and the MDA be a conflict of interest? Does it matter what type of services I need (e.g., review of an employment agreement, litigation, estate planning, setting up a practice, purchasing/selling a practice, etc.)? What if I need representation in a peer review matter or want to sue (or am being sued) by another MDA member?
Answer: These are common questions. For some reason, many seem to believe it is a conflict of interest for KRW to represent an MDA member because it also represents the MDA. This is almost always not true.
The only time KRW’s representation of an MDA member conflicts with its representation of the MDA is when the representation involves a matter adverse to the MDA (or another KRW client). An obvious example of such adversity to the MDA would be in a peer review case. KRW (which represents and advises MDA in all peer review matters) cannot represent the MDA in its investigation and/or prosecution of a peer review case while at the same time defending the member who is the subject of the investigation/prosecution. Another example of an impermissible conflict of interest would be litigation or another form of dispute between the MDA and a member.
Assuming the representation does not involve a peer review matter, a dispute with the MDA, or some other adverse matter between the member and the MDA, KRW can represent MDA members. In fact, KRW has represented a great many MDA members over the years. Through several of its 55 attorneys KRW has provided the full range of legal services to many MDA members, including practice sales and purchases, setting up dental practices, dissolving practices, disputes between partners, disputes between the practice and an employee and other employment matters, licensing investigations/complaints by the state, leasing and other landlord/tenant matters, purchases and sales of real estate, immigration matters, litigation, etc. The type of service sought does not matter so long as it is not a matter adverse to the MDA. With the exception of representation in an MDA peer review matter, the type of service needed does not matter — KRW’s representation of an MDA member does not conflict with the firm’s representation of the MDA (or another KRW client).
On several occasions KRW has represented an MDA member in a matter that is adverse to another MDA member. For example, KRW has frequently represented MDA members either seeking enforcement of a covenant not to compete against another member or has defended against another member’s attempted enforcement of a covenant not to compete. Other common disputes between MDA members have involved wrongful termination claims and other employment matters, partner disputes arising from buy in/buy out transactions, claims of breaches of purchase agreements, enforcement of payment obligations, claimed breaches of purchase agreements, shareholder agreements, etc. Sometimes these disputes have involved litigation. Other times negotiation and settlement was what was required.
Through an agreement with the MDA, KRW offers a legal services plan to MDA members. MDA members who hire KRW pay the lesser of 95 percent of KRW’s current standard hourly rates or the previous year’s standard hourly rates. All MDA members hiring KRW are provided and are required to sign a standard engagement letter explaining in detail the potential for a conflict of interest in peer review and certain other matters.
The matters that will result in a conflict of interest are rare. In most cases MDA members may hire KRW.