{ "id": 1447511, "name": "Jackie BERRY, as Administrator of the Estate of Toni Berry, Deceased v. SALINE MEMORIAL HOSPITAL; and Terry Whittington, Administrator of Saline Memorial Hospital", "name_abbreviation": "Berry v. Saline Memorial Hospital", "decision_date": "1995-10-23", "docket_number": "95-144", "first_page": "182", "last_page": "189", "citations": [ { "type": "official", "cite": "322 Ark. 182" }, { "type": "parallel", "cite": "907 S.W.2d 736" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 16-46-105", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 25-19-105", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1995, "pin_cites": [ { "page": "(a)" }, { "page": "(b)(2)" } ], "opinion_index": 0 }, { "cite": "319 Ark. 383", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453567 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/319/0383-01" ] }, { "cite": "313 Ark. 706", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914656 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0706-01" ] }, { "cite": "231 Ark. 707", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1697128 ], "weight": 4, "pin_cites": [ { "page": "712-13" }, { "page": "847" } ], "opinion_index": 0, "case_paths": [ "/ark/231/0707-01" ] }, { "cite": "273 Ark. 511", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721127 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "513" }, { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/ark/273/0511-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 25-19-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "321 Ark. 588", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1449622 ], "weight": 4, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/321/0588-01" ] }, { "cite": "Ark. Code Ann. \u00a7 23-79-210", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1992, "opinion_index": 0 } ], "analysis": { "cardinality": 614, "char_count": 13125, "ocr_confidence": 0.864, "pagerank": { "raw": 3.4564292484523447e-07, "percentile": 0.880446118673328 }, "sha256": "2d6828cf447dd45e7f840b68c25edc4ccbd499190992dc4913800b7d26d1fd37", "simhash": "1:f30fc74a23de7cf7", "word_count": 2113 }, "last_updated": "2023-07-14T22:17:32.217899+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Jackie BERRY, as Administrator of the Estate of Toni Berry, Deceased v. SALINE MEMORIAL HOSPITAL; and Terry Whittington, Administrator of Saline Memorial Hospital" ], "opinions": [ { "text": "Robert H. Dudley, Justice.\nThis is an appeal from an order disqualifying a law firm from participating in a case. We affirm the disqualification order. The facts viewed in the light most favorable to appellee are as follows. Clark Brewster, a member of the law firm of Boswell, Tucker & Brewster, was a member of the Board of Governors of the Saline Memorial Hospital from July 1, 1989, to June 30, 1992. During this period, Brewster, as a member of the board, was privy to confidential and privileged information about the hospital\u2019s quality assurance activities and the peer reviews conducted by the medical staff. He additionally served as Chairman of the Joint Conference Committee, a committee composed of three members of the board and three members of the medical staff. This committee relayed concerns of the medical staff to the board about the quality assurance programs. This information was not known to the public and was disclosed to Brewster because of his fiduciary relationship to the hospital. He was not employed as the hospital\u2019s attorney, but he was asked questions by board members because of his profession.\nOn July 25, 1992, or twenty-five days after the attorney\u2019s term on the board ended, Toni Berry underwent emergency surgery at the Saline Memorial Hospital and, lamentably, died the next afternoon. Shortly after her death, her widower, Jackie Berry, employed Ted Boswell, senior partner in the firm of Boswell, Tucker & Brewster, to investigate a possible negligence action against the hospital. Ten months later the Boswell law firm filed a negligence action on behalf of Toni Berry\u2019s estate against St. Paul Fire & Marine Insurance Company, the insurer of Saline Memorial Hospital, which is a county-owned hospital. See Ark. Code Ann. \u00a7 23-79-210 (Repl. 1992). The gravamen of the complaint was that the hospital and certain of its employees committed medical malpractice. See Saline Memorial Hosp. v. Berry, 321 Ark. 588, 906 S.W.2d 297 (1995).\nOn November 15, 1994, the Boswell firm requested numerous records from the hospital under the Arkansas Freedom of Information Act, Ark. Code Ann. \u00a7\u00a7 25-19-101 to -107 (Repl. 1992 & Supp. 1995). The FOIA at times provides greater disclosure than do the discovery procedures afforded by the Arkansas Rules of Civil Procedure. Baxter County Newspapers v. Baxter Gen. Hosp. Staff, 273 Ark. 511, 622 S.W.2d 495 (1981). Among the many requested records were \u201crecords used by the nursing or hospital administration to determine patient acuity levels\u201d; \u201crecords of the employee-to-patient ratio reports from 1991, 1992, and 1993\u201d; and \u201crecords of the employee-per-occupied-bed reports for 1990, 1991, 1992, and 1993.\u201d The hospital complied with most of the requests, but refused to release statements taken from witnesses as part of a quality assurance or peer review proceeding. In its response to the Boswell firm\u2019s request, the hospital replied that the quality assurance and peer review records:\nare specifically excluded from disclosure and are absolutely privileged communications pursuant to Arkansas statutes. These would be the only such records in the hospital\u2019s possession. Those made and kept by St. Paul or this [law] firm [Friday, Eldredge & Clark] and are not public records.\nThe Estate of Toni Berry then filed this separate suit under the FOIA and, among other things, requested the circuit court to order the hospital to disclose all records denied \u201con any alleged quality assurance privilege. . . .\u201d\nThe Hospital filed a motion seeking to disqualify the Boswell firm from representing the estate in this FOIA suit on the following basis:\nThe confidential information gathered by Clark Brewster while serving on the hospital\u2019s Board and the decisions related to the operation of the hospital are directly at issue in the present lawsuit. The representation of the Plaintiff in an action directly adverse to the interests of the hospital is improper, presents an unavoidable conflict of interest and gives the appearance of impropriety that undermines the public\u2019s perception of the legal profession and defeats the public policy principles against such actions.\n[He] was in a fiduciary relationship with Saline Memorial Hospital and continues to owe a duty of loyalty which will be breached if allowed to represent interests adverse to those of the hospital.\nThe trial court ruled that the Boswell law firm was disqualified because:\n[Clark Brewster\u2019s] membership on the board of Governors of Saline Memorial Hospital, at the time Quality Assurance and Peer Review policies and procedures were approved and adopted by the board, is a matter related to the issues in the pending FOIA action. Mr. Brewster\u2019s law firm represents interests directly adverse to the hospital which will necessarily involve issues related to the very policies and procedures which Mr. Brewster approved and implemented as a member of the Board.\nThe Boswell firm appeals from the ruling.\nAppellant first contends the trial court erred in disqualifying the law firm because the firm was not in an attorney-client relationship with the hospital. We could summarily dispose of the argument by stating that the trial court did not rule that an attorney-client relationship existed. Even so, we answer in more detail. The trial court ruled that a conflict of interest existed between the attorney and the hospital, and that ruling was correct. Rule 1.7(b) of The Model Rules of Professional Conduct provides that a lawyer \u201cshall not represent a client if the representation of that client may be materially limited by the lawyers\u2019s responsibility to another client or to a third person,\u201d unless the client or the third person consents. Model Rule 1.10 states that, while lawyers are associated in a firm, \u201cnone of them shall knowingly represent a client when any of them practicing alone would be prohibited from doing so by Rule 1.7.\u201d The Comment to Rule 1.7 discusses several possible conflicting relationships such as the business interests of the lawyer and membership on a board of directors.\nA member of a hospital\u2019s board of directors holds a fiduciary relationship with the hospital. Warren v. Wheatley, 231 Ark. 707, 331 S.W.2d 843 (I960). One who is in such a relationship may not assume a position in which his personal interest might conflict with his fiduciary duty as a member of the board. Id. at 712-13, 331 S.W.2d at 847. When a lawyer is on the board of a hospital, the lawyer owes a fiduciary duty to the hospital, and the lawyer should not take any action that conflicts with that duty, such as filing a suit against the hospital. After the lawyer\u2019s term on the board ends, the lawyer should not take any action to the detriment of the hospital when that action is based upon confidential information the attorney gained during the fiduciary relationship.\nThe holding in this case must be read in context of this case only. The Model Rules of Professional Conduct are not really designed for disqualification trials; rather, they are designed for regulating conduct through the Committee on Professional Responsibility. The rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer\u2019s self-assessment, or for sanctioning a lawyer under the Committee on Professional Conduct, does not imply that an antagonist in a collateral proceeding even has standing to seek enforcement of a rule. See The Preamble to the Model Rules of Professional Conduct. In addition, in this case the trial court\u2019s ruling on disqualification does not conflict with the Arkansas Freedom of Information Act. We can envision situations where a disqualification ruling might present a conflict with the FOIA, and a weighing of those conflicts then would be required.\nAppellant next argues that any materials reviewed by Brewster, and all actions taken by him as a member of the board, were subject to public scrutiny under the FOIA; therefore, there was no breach of confidentiality. The argument is one that is based upon Mr. Brewster\u2019s recollection of the facts. It fails because we must view the facts, and all reasonable inferences from them, in the light most favorable to appellee. We do not reweigh the evidence, we only determine whether the trial court\u2019s finding was clearly against the preponderance of the evidence. Riddick v. Streett, 313 Ark. 706, 858 S.W.2d 62 (1993). In such a review it is permissible to consider only testimony that supports the finding. Griffin v. Woodall, 319 Ark. 383, 892 S.W.2d 451 (1995).\nContrary to Mr. Brewster\u2019s recollection, there was proof from another member of the board, Max Blake, that information was supplied to Mr. Brewster during his tenure on the board that related to quality assurance and peer review and this information was not public information. Moreover, one of the hospital\u2019s responses to the FOIA request, which prompted this FOIA suit, was that \u201cstatements taken from witnesses as part of a Quality Assurance or Peer Review proceeding are specifically excluded from disclosure and are absolutely privileged communications pursuant to Arkansas statues.\u201d Appellant does not deny that he seeks records related to quality assurance and peer review. Indeed, one of the issues to be decided by the circuit court when the merits of this FOIA case are reached is whether peer review and quality assurance records are excluded from the FOIA. We observe, without deciding the issue and without indicating how the circuit court should rule when it reaches the merits, that this is a valid issue. The FOIA provides that all records of county hospitals are to be open to the public \u201cexcept as otherwise specifically provided by this section or by law. . . .\u201d Ark. Code Ann. \u00a7 25-19-105(a) (Supp. 1995). One of the exceptions provided \u201cby this section\u201d is for \u201cmedical records.\u201d Ark. Code Ann. \u00a7 25-19-105(b)(2). Another statute, Ark. Code Ann. \u00a7 16-46-105 (Repl. 1994), provides that peer review and quality assurance records \u201cshall not be subject to discovery or admissible in any legal proceeding and shall be absolutely privileged communications.\u201d Id. \u00a7 16-46-105(a). See also Baxter County Newspapers, 273 Ark. at 513, 622 S.W.2d at 496.\nRegardless of the ultimate ruling on the merits of the issue, the only ruling made by the trial court that is now on appeal is that:\n[Brewster\u2019s] membership on the Board ... at the time Quality Assurance and Peer Review policies and procedures were approved and adopted by the board is a matter related to the issues in the pending FOIA action. Mr. Brewster\u2019s law firm represents interests directly adverse to the hospital which will necessarily involve issues related to the very policies and procedures which Mr. Brewster approved and implemented as a member of the board.\nThe ruling was not clearly erroneous.\nAppellant\u2019s final assignment is that the trial court erred because there was no appearance of impropriety or olfactory offense sufficient to warrant disqualification of counsel. The argument is without merit. Some of the Model Rules of Professional Conduct are imperatives, cast in the terms \u201cshall\u201d or \u201cshall not.\u201d These rules define proper conduct for purposes of professional discipline. Others, generally cast in the term \u201cmay,\u201d are permissive and define areas under the rules in which the lawyer has professional discretion. See \u201cScope\u201d of Model Rules of Professional Conduct. However, Rule 1.7, the primary rule at issue in this case, is cast in imperative terms. It provides that a lawyer \u201cshall not represent a client if the representation of that client may be materially limited by the lawyer\u2019s responsibility to ... a third person.\u201d (Emphasis added.) A member of the law firm held a fiduciary relationship with the hospital, and the trial court ruled that there was a substantial relationship between the lawyer\u2019s responsibilities as a result of the fiduciary relationship and the information sought in the FOIA petition. Since the Model Rule is cast in imperative terms, the trial court did not abuse its discretion in finding a conflict of interest and disqualifying the law firm retained by appellant.\nAs a sub-point, appellant asks us to reconsider our position on the \u201cappearance of impropriety\u201d standard, as we are only one of three states retaining that standard. See David Ivers, Note, Prohibition Against Appearance of Impropriety Retained Under Model Rules of Professional Conduct, 13 U. Ark. Little Rock L.J. 271 (1991). We have recently used the standard in another disqualification case, see Saline Memorial Hosp. v. Jackie L. Berry, 321 Ark. 588, 906 S.W.2d 297 (1995), and we continue to think that it is appropriate in disqualification cases.\nAffirmed.", "type": "majority", "author": "Robert H. Dudley, Justice." } ], "attorneys": [ "Boswell, Tucker & Brewster, by: Ted Boswell, Clark S. Brewster, and John T. Holleman, for appellant.", "No response." ], "corrections": "", "head_matter": "Jackie BERRY, as Administrator of the Estate of Toni Berry, Deceased v. SALINE MEMORIAL HOSPITAL; and Terry Whittington, Administrator of Saline Memorial Hospital\n95-144\n907 S.W.2d 736\nSupreme Court of Arkansas\nOpinion delivered October 23, 1995\n[Petition for rehearing denied November 20, 1995.]\nBoswell, Tucker & Brewster, by: Ted Boswell, Clark S. Brewster, and John T. Holleman, for appellant.\nNo response." }, "file_name": "0182-01", "first_page_order": 208, "last_page_order": 215 }