concurring in part and dissenting in part.
|12I have determined that though I agree a violation of Arkansas Rule of Civil Procedure 35 and Arkansas Rule of Evidence 503 occurred after suit was filed and Phillip Malcom continued to represent Dr. Seguin and talk with her without the Bulsaras’ permission, I do not believe disqualification of Malcom from representing both doctors is an appropriate sanction.
I am led to this conclusion by the fact that in cases where Arkansas courts have considered violations of Arkansas Rule of Civil Procedure 35 and Arkansas Rule of Evidence 503, the remedy has been to limit or exclude the testimony of the treating physician on behalf of the defense and to impose monetary sanctions on the defense attorney. See Kraemer v. Patterson, 342 Ark. 481, 29 S.W.3d 684 (2000); See Harlan v. Lewis, 141 F.R.D. 107 (E.D.Ark.1992). This is true even where it was clear that the defense attorney engaged in impermissible and unethical conduct. See Harlan, 141 F.R.D. at 113.
In Harlan, the Arkansas district court explained that the purpose behind Rules 35 and 503 is to permit patients to retain some control over the manner in which information concerning their medical records and treatment is released.1 Harlan, 141 F.R.D. at 111. The Supreme Court of North Carolina has taken a similar view when it stated that the physician-patient privilege and the rule prohibiting ex parte contact differ in function as well as purpose. See Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990). In Crist, the court explained that “[t]he statutory privilege determines whether certain information may be disclosed. In contrast, the prohibition against unauthorized ex parte contact regulates only how defense counsel may obtain information from a plaintiffs treating physician, i.e., it affects defense counsel’s methods, not the substance of what is discoverable.” Id. at 45 (quoting Manion v. N.P.W. Medical Center of N.E. PA., Inc., 676 F.Supp. 585 (M.D.Pa.1987)).
This view places Arkansas among an enlightened “emerging consensus [of states adhering] to the position that defense counsel is limited to the formal methods of discovery enumerated by the jurisdiction’s rules of civil procedure, absent the patient’s express consent to counsel’s ex parte contact with her treating physician.” Harlan, 141 F.R.D. at 111 (quoting Crist, 389 S.E.2d at 45). This view, according to the federal district court, “strikes an appropriate balance between the parties’ ability to obtain all relevant information and the patient’s right to have irrelevant medical information remain confidential.” Id. This is so because “[tjhere is absolutely no relevant medical information which can be withheld under Arkansas” rules and “[a]ll relevant medical information is fully discoverable.” Id. Therefore, even though the physician-patient privilege is waived through the filing of a lawsuit, “the confidential nature of the physician-patient relationship remains, even though medical information is then subject to discovery.” Id. (quoting Crist, 389 S.E.2d at 46).
But again, in the above-cited cases, disqualification of counsel for the defendant physician was not the sanction imposed where a violation of a rule prohibiting ex-parte contact, such as Rules 35 and 503, occurred. In Crist, the sanction affirmed by the North Carolina Supreme Court was to prohibit the defense counsel from further ex parte interviews with the plaintiffs nonparty treating physician without the plaintiffs express consent. Crist, 389 S.E.2d at 47. The court in Crist also affirmed the trial court’s requirement that defense counsel fully disclose the substance of all private conversations between defense counsel and plaintiffs nonparty treating physicians because this remedy was “designed to enable plaintiff to prepare for evidence that might be offered at trial as a result of the ex parte discovery.” Id. at 48.
In Harlan, the federal district court indicated that it “seriously considered barring these treating physician/defense experts from testifying at all in light of defense counsel’s blatant refusal to acknowledge, much less comply with, Rules 503 and 35 and his improper attempts to influence testimony.” Harlan, 141 F.R.D. at 113. However, the court noted that this would severely limit the defendant doctor’s ability to present a defense. Id. at 114. Accordingly, the district court permitted the defendant to elicit expert opinions from the treating physicians, but prohibited defense counsel from meeting with the treating physician experts outside the presence of the plaintiffs’ attorney without the plaintiffs’ express consent. Id. The court further ordered the defense counsel to turn over to the plaintiffs’ counsel all notes, records, transcripts, and recordings of the ex parte interviews with the treating physicians if the defendant intended to use those treating physicians as expert witnesses. íd.
The Harlan court, as a final sanction, imposed monetary sanctions on defense counsel for violation of the Model Rules of Professional Conduct and the rules prohibiting ex parte contact. Id. at 113. The defense attorney in Harlan had made improper and unethical comments to the treating physician during the ex parte interviews in that he told the treating physician that he could be called as a witness; that he could be sued by the plaintiffs; and that if the treating physician did not testify for the plaintiffs, the suit would probably not be successful. Id. The district court concluded that by suggesting to the treating physician that he not testify, the defendant’s lawyer violated Rule 3.4 of the Model Rules of Professional Conduct, which prohibit a lawyer from obstructing another party’s access to evidence or from counseling a third party to conceal information having “possible evidentiary value.” Id. The court found that even if the Arkansas Rules permitted ex parte interviews with treating physicians, this conduct by defense counsel would be impermissible and unethical. Id. Accordingly, the district court sanctioned the defense attorney $2500, “an amount the Court consider[ed] paltry, in light of the conduct.” Id. The Eighth Circuit affirmed the decision of the district court and its imposition of sanctions. Harlan v. Lewis, 982 F.2d 1255 (8th Cir.1993).
In Kraemer v. Patterson, the circuit court entered an order permitting the defense to retain the plaintiffs treating physician as a defense expert. Kraemer, 342 Ark. at 484, 29 S.W.3d at 686. The circuit court also specifically permitted the defense to meet with the treating physician without the plaintiffs attorney being present. Id. at 485, 29 S.W.3d at 686. Before any meeting took place, however, the plaintiff filed a petition for writ of certiora-ri with this court. Id. This court held that Rule 503(d)(3)(B) by its plain language forbids ex parte communication with the patient’s physician in the absence of the patient’s consent. Id. at 492, 29 S.W.3d at 690. This court also held that the circuit court erred in authorizing ex parte contact between the treating physician and the defense counsel without the plaintiffs consent. Id. We noted specifically, however, that the holding did not forbid the use of the treating physician as a defense expert. Id. at n. 3.
Then there is the Illinois Court of Appeals’ decision in Baylaender v. Method, 230 Ill.App.3d 610, 171 Ill.Dec. 797, 594 N.E.2d 1317 (1992), which is cited by the majority and Dr. Bulsara. The Baylaen-der case does not support the majority’s sanction of disqualification of Malcom as counsel for Dr. Watkins. In Baylaender, which is factually similar to the instant case in that counsel for the defendant doctor also represented the treating physician, the “only feasible remedy” was to bar the treating physician’s testimony for the defense. Baylaender, 594 N.E.2d at 1327. The court found such a sanction to be appropriate “to countervail the prejudice to the plaintiff resulting from the breach of the fiducial and confidential relation between [the treating physician] and the plaintiff which was precipitated in this case.” Id. The Baylaender decision did not mandate disqualification of defense counsel.
In the instant case, we are presented with different facts than have been considered by this court before due to the fact that Malcom was retained to represent both Dr. Watkins (the defendant) and Dr. Seguin (a treating physician) prior to the lawsuit being filed. Nevertheless, disqualifying Malcom from representing Dr. Watkins for purposes of a new trial goes too far in my judgment. Even in the Harlan case, where the defense counsel engaged in what the federal district court called “impermissible and unethical” conduct, the remedy was to prohibit defense counsel from meeting with the treating physicians without the plaintiffs consent; to order defense counsel to turn over all notes and records of the ex parte communications with the treating physicians, if the defense was going to call those treating physicians as expert witnesses; and to impose monetary sanctions against the defense attorney for his “blatant refusal to acknowledge, much less comply with, Rules 503 and 35 and his improper attempts to influence testimony.” Harlan, 141 F.R.D. at 113.
The real issue in the instant case appears to be that Malcom violated Arkansas Rules of Professional Conduct by continuing to represent both doctors after the lawsuit was filed. For example, it seems that by representing both Dr. Watkins and Dr. Seguin, Malcom was violating Rules 1.7 and 1.9 of the Arkansas Rules of Professional Conduct. Rule 1.7, entitled “Conflict of Interest: Current Clients,” provides that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest where the representation “will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person.” Ark. R. Prof’l Conduct 1.7(a)(2) (2011) (emphasis added). Rule 1.9 reads that a “lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.” Ark. R. Prof’l Conduct 1.9(a) (2011) (emphasis added).
It appears that Malcom’s representation of Dr. Watkins would be materially limited by his responsibilities to another client, Dr. Seguin, and vice-versa, in that it would be virtually impossible to keep information he learned through his representation of Dr. Seguin separate from his defense of Dr. Watkins. However, although Dr. Bul-sara makes a general argument about conflict of interest, his argument is not really developed in this appeal. Dr. Bul-sara simply makes conclusory statements, such as “[r]epresenting Dr. Seguin’s interests directly conflicts with Mr. Malcom’s representation of Dr. Watkins’ interest,” “Malcom simply could not represent both clients in this case,” and “[w]hile Rule 1.7(b) allows some conflicts to be waived ... [t]his conflict would surely be ‘noncon-sentable,’ ” without providing an explanation or support for these statements.
Additionally, Dr. Bulsara abandons his argument made below concerning Malcom’s violation of another rule of professional conduct, Rule 3.4, which provides that a lawyer shall not “unlawfully obstruct another party’s access to evidence.” Ark. R. Profl Conduct 3.4(a). In his brief in support of his motion for withdrawal of counsel, Dr. Bulsara argued that because Malcom could not ethically represent a nonparty, treating physician and a defendant physician concurrently, his advising Dr. Seguin to refrain from speaking to Mrs. Bulsara obstructed Dr. Bulsara’s access to relevant information and was a violation of Rule 3.4. This is similar to the argument made in Harlan, which the district court and the Eighth Circuit accepted. This court has made it clear that disqualification of counsel is a drastic measure to be imposed only where clearly required by the circumstances. Craig v. Carrigo, 340 Ark. 624, 12 S.W.3d 229 (2000). It is an available remedy to a circuit court “to protect and preserve the integrity of the attorney-client relationship.” Id. at 633, 12 S.W.3d at 235 (quoting Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990)). This court has recognized, however, that the Rules of Professional Conduct are applicable in disqualification proceedings. Wilburn v. State, 346 Ark. 137, 56 S.W.3d 365 (2001). Therefore, if Dr. Bulsara 119had fully developed or preserved his arguments on appeal that Malcom violated the rules of professional conduct, then an argument in favor disqualification would be more plausible. However, Dr. Bulsara failed to develop, or even present, these arguments adequately on appeal.
In sum, I do not think that Rule 35 and Rule 503 relied on by the majority support the remedy of disqualification. At best, these rules and the cases interpreting them or similar rules, provide alternative ways to right the prejudice to the plaintiff by prohibiting the treating physician from testifying for the defense, by prohibiting ex parte contact between the defense and the treating physician, by forcing the defense to turn over to the plaintiff any notes or records resulting from the ex parte communication, and by imposing monetary sanctions for defense counsel’s “blatant refusal to acknowledge, much less comply with, Rules 503 and 35 and his improper attempts to influence testimony.”
Finally, although I disagree that Mal-com should be disqualified as counsel for Dr. Watkins, I do agree that a new trial is warranted. It is clear to me that there has been a blatant violation of Rules 35 and 503. For example, Rule 35(c)(2) expressly prohibits ex parte communications between counsel for a party (Malcom, who represented Dr. Watkins) and a nonparty, treating physician (Dr. Seguin)-unless the treated party (Mrs. Bulsara, who is a beneficiary of the estate) expressly consents. She did not. Rule 35(c)(2) speaks in terms of parties; therefore, a violation of this rule does not occur until a complaint has been filed and a lawsuit has begun. As evidenced by both Dr. Seguin’s affidavit and letters written by Malcom on behalf of Dr. Seguin, it is undisputed that Malcom and Dr. Seguin remained in contact, and, in fact, he continued to represent Dr. Seguin, after the lawsuit was filed. Although it is not clear the exact information that was shared between Dr. Seguin and Mal-com before or after the filing of the complaint, the rules cited above are clear that any communication between the attorney and the treating physician after the suit is filed is prohibited. Therefore, it does not matter what exactly was shared between the two because any communication after the filing of suit results in a violation of the rules.
At the time the lawsuit was filed, Mal-com should have ceased all communication with Dr. Seguin and advised her to seek other counsel. His failure to do so, and, indeed, his continued representation of Dr. Seguin after the complaint was filed, while he remained counsel for Dr. Watkins, resulted in a violation of Rule 35(c)(2) and Rule 503. In cases such as these, it is exceedingly difficult to quantify prejudice. However, Dr. Bulsara has shown a reasonable possibility of prejudice by the simple fact that information was shared between Malcom and Dr. Seguin. Dr. Bulsara has demonstrated further prejudice in light of Malcom’s refusal to permit Dr. Bulsara to communicate with Dr. Seguin, unless Mal-com was present, essentially obstructing his access to information. Because Mal-com effectively participated in an ongoing violation of Arkansas Rule of Civil Procedure 35(c)(2) and Arkansas Rule of Evidence 503, which resulted in prejudice to Dr. Bulsara, a new trial is warranted. Rather than prohibit Malcom from representing Dr. Watkins on remand, however, I would grant the alternative remedy sought by Dr. Bulsara, which is to require Malcom to turn over all notes, records, transcripts, and recordings of the ex parte interviews with Dr. Seguin. This sanction for the violation of the rules is appropriate in order to enable |21Pr. Bulsara “to prepare for evidence that might be offered at trial as a result of the ex parte discovery.” Crist, 389 S.E.2d at 48.
Accordingly, I respectfully concur in part and dissent in part.
. It is important to note that we adopted the current version of Arkansas Rule of Civil Procedure 35 and Arkansas Rule of Evidence 503 in light of the decision in Harlan. See Ark. R. Civ. P. 35 rprts. nn. (1998 amend.) (“Consistent with the result reached in Harlan, the first sentence of paragraph (2) provides that a party or his or her attorney cannot interview or otherwise informally contact another party's treating physician or psychotherapist without that party's consent. This new provision reflects the intent of the original version of the rule, i.e., to limit the communications with a party's physician or psychotherapist to the formal discovery process.”).