What doctors can learn from lawyers about conflicts of interest

Boston University Law Review

Volumn 81, Issue 2, 2001, Pages 445-456

  Moore, Nancy J ^a  

^a NONE

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EID: 0035637334     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (95)

1. See Frances H. Miller, Trusting Doctors: Tricky Business When It Comes to Clinical Research, 81 B.U. L. REV. 423 (2001) [hereinafter Miller, Trusting Doctors] (citing Sheryl Gay Stolberg, Biomedicine is Receiving New Scrutiny as Scientists Become Entrepreneurs, N.Y. TIMES, Feb. 20, 2000, at 26); see also Mark Barnes & Sara Krauss, Conflicts of Interest in Human Research: Risks and Pitfalls of "Easy Money" in Research Funding, 9 HEALTH L. REP. 1378, 1381 (2000) ("Among the most criticized research compensation practices has been the payment by research sponsors of per patient 'enrollment bonuses' to physicians.").
2. See Frances H. Miller, Trusting Doctors: Tricky Business When It Comes to Clinical Research, 81 B.U. L. REV. 423 (2001) [hereinafter Miller, Trusting Doctors] (citing Sheryl Gay Stolberg, Biomedicine is Receiving New Scrutiny as Scientists Become Entrepreneurs, N.Y. TIMES, Feb. 20, 2000, at 26); see also Mark Barnes & Sara Krauss, Conflicts of Interest in Human Research: Risks and Pitfalls of "Easy Money" in Research Funding, 9 HEALTH L. REP. 1378, 1381 (2000) ("Among the most criticized research compensation practices has been the payment by research sponsors of per patient 'enrollment bonuses' to physicians.").
3. See Frances H. Miller, Trusting Doctors: Tricky Business When It Comes to Clinical Research, 81 B.U. L. REV. 423 (2001) [hereinafter Miller, Trusting Doctors] (citing Sheryl Gay Stolberg, Biomedicine is Receiving New Scrutiny as Scientists Become Entrepreneurs, N.Y. TIMES, Feb. 20, 2000, at 26); see also Mark Barnes & Sara Krauss, Conflicts of Interest in Human Research: Risks and Pitfalls of "Easy Money" in Research Funding, 9 HEALTH L. REP. 1378, 1381 (2000) ("Among the most criticized research compensation practices has been the payment by research sponsors of per patient 'enrollment bonuses' to physicians.").
4. See Miller, Trusting Doctors, supra note 1, at 435 n.76 (discussing the risks inherent to situations where a physician has a direct financial interest in the outcome of an experimental study); see also Barnes & Krauss, supra note 1, at 1378 ("Also of significant concern is that physician-researchers and/or host institutions may take 'stakes' - such as stock options or equity ownership - in the companies whose drugs, devices, or gene therapy products are being tested by those physicians and/or those hospitals.").
5. See Miller, Trusting Doctors, supra note 1, at 435 n.76 (discussing the risks inherent to situations where a physician has a direct financial interest in the outcome of an experimental study); see also Barnes & Krauss, supra note 1, at 1378 ("Also of significant concern is that physician-researchers and/or host institutions may take 'stakes' - such as stock options or equity ownership - in the companies whose drugs, devices, or gene therapy products are being tested by those physicians and/or those hospitals.").
6. Federal law does not forbid physicians from having ownership interests in products under investigation or in companies owning such products. See Barnes & Krauss, supra note 1, at 1379 (stating that the most restrictive federal regulation of financial conflicts of interest merely imposes certain financial disclosure obligations on organizations and their researchers). I am unaware of any state laws to the contrary. Enrollment incentives might violate the federal Anti-Kickback Law if they are intended to induce physicians to purchase drugs or services to be paid for by Medicaid or Medicare, but not if they "are at all related to the value of research services performed." Id. at 1381. Typically, there are actual costs associated with the research, and it may be difficult to separate actual costs from any added "incentive payment." See, e.g., OFFICE OF INSPECTOR GENERAL, DEPARTMENT OF HEALTH AND HUMAN SERVICES, RECRUITING HUMAN SUBJECTS: PRESSURES IN INDUSTRY-SPONSORED CLINICAL RESEARCH (2000) [hereinafter RECRUITING HUMAN SUBJECTS].
7. Federal law does not forbid physicians from having ownership interests in products under investigation or in companies owning such products. See Barnes & Krauss, supra note 1, at 1379 (stating that the most restrictive federal regulation of financial conflicts of interest merely imposes certain financial disclosure obligations on organizations and their researchers). I am unaware of any state laws to the contrary. Enrollment incentives might violate the federal Anti-Kickback Law if they are intended to induce physicians to purchase drugs or services to be paid for by Medicaid or Medicare, but not if they "are at all related to the value of research services performed." Id. at 1381. Typically, there are actual costs associated with the research, and it may be difficult to separate actual costs from any added "incentive payment." See, e.g., OFFICE OF INSPECTOR GENERAL, DEPARTMENT OF HEALTH AND HUMAN SERVICES, RECRUITING HUMAN SUBJECTS: PRESSURES IN INDUSTRY-SPONSORED CLINICAL RESEARCH (2000) [hereinafter RECRUITING HUMAN SUBJECTS].
8. The American Medical Association's Principles of Medical Ethics do not address conflicts of interest, either in practice or in research. See AMA, Code of Medical Ethics and Current Opinions, in RENA A. GORLIN, CODES OF PROFESSIONAL RESPONSIBILITY: ETHICS STANDARDS IN BUSINESS, HEALTH, AND LAW 339, 341 (4th ed. 1999). There are two advisory opinions of the AMA Council on Ethical and Judicial Affairs that generally address a physician's ethical responsibilities in clinical research. One opinion sets forth comprehensive guidelines for physicians engaging in clinical investigation of new drugs and procedures; it mentions conflicts of interest only by stating that "the integrity of the process is maintained by an avoidance of real or apparent conflicts of interest." See id., Opinion 2.07, at 350.
9. The American Medical Association's Principles of Medical Ethics do not address conflicts of interest, either in practice or in research. See AMA, Code of Medical Ethics and Current Opinions, in RENA A. GORLIN, CODES OF PROFESSIONAL RESPONSIBILITY: ETHICS STANDARDS IN BUSINESS, HEALTH, AND LAW 339, 341 (4th ed. 1999). There are two advisory opinions of the AMA Council on Ethical and Judicial Affairs that generally address a physician's ethical responsibilities in clinical research. One opinion sets forth comprehensive guidelines for physicians engaging in clinical investigation of new drugs and procedures; it mentions conflicts of interest only by stating that "the integrity of the process is maintained by an avoidance of real or apparent conflicts of interest." See id., Opinion 2.07, at 350.
10. The other opinion specifically addresses conflicts of interest in biomedical research. Rather than providing guidelines directly for physicians, however, it simply states that "[a]ll medical centers should develop specific guidelines for their clinical staff on conflicts of interest[,]" and further, that these guidelines should include a rule that "once a clinical investigator becomes involved in a research project for a company or knows that he or she might become involved, she or he, as an individual cannot ethically buy or sell the company's stock until the involvement ends and the results of the research are published or otherwise disseminated to the public." Id., Opinion 8.031, at 389. Although the rationale for the suggested guideline is not given, I assume that the intent is to prohibit illegal insider trading. Thus, the suggested guidelines do not prohibit physicians from having financial ties to companies whose products they are investigating; rather, they merely require that such ties be disclosed to the medical center where the research is conducted. See id. The suggested guidelines also require that "any remuneration received by the researcher from the company whose product is being studied must be commensurate with the efforts of the researcher on behalf of the company." Id. This guideline does not clearly prohibit incentive payments, as it appears to permit compensation for more than the actual costs of a physician's participation in a clinical study. See id. at 389.
11. As Professor Miller notes, federal law requires only that physicians disclose financial conflicts to the institution sponsoring the study; it does not require disclosure to the subjects of the investigation. See Miller, Trusting Doctors, supra note 1, at 439-40; see also supra note 4. But see Moore v. Regents of the Univ. of Cal., 793 P.2d 479 (Cal. 1990) (setting forth a rule requiring disclosure of researcher financial conflicts of interest). This common law breach of fiduciary duty case is discussed by Professor Miller. See Miller, Trusting Doctors, supra note 1, at 439.
12. As Professor Miller notes, federal law requires only that physicians disclose financial conflicts to the institution sponsoring the study; it does not require disclosure to the subjects of the investigation. See Miller, Trusting Doctors, supra note 1, at 439-40; see also supra note 4. But see Moore v. Regents of the Univ. of Cal., 793 P.2d 479 (Cal. 1990) (setting forth a rule requiring disclosure of researcher financial conflicts of interest). This common law breach of fiduciary duty case is discussed by Professor Miller. See Miller, Trusting Doctors, supra note 1, at 439.
13. As Professor Miller notes, federal law requires only that physicians disclose financial conflicts to the institution sponsoring the study; it does not require disclosure to the subjects of the investigation. See Miller, Trusting Doctors, supra note 1, at 439-40; see also supra note 4. But see Moore v. Regents of the Univ. of Cal., 793 P.2d 479 (Cal. 1990) (setting forth a rule requiring disclosure of researcher financial conflicts of interest). This common law breach of fiduciary duty case is discussed by Professor Miller. See Miller, Trusting Doctors, supra note 1, at 439.
14. See Ezekiel Emanuel, David Wendler and Christine Grady, What Makes Clinical Research Ethical, 283 JAMA 2701 (2000) (setting forth seven requirements that "should be sufficient to ensure that the vast majority of clinical research is ethical"), discussed by Miller, Trusting Doctors, supra note 1, at 436.
15. See Ezekiel Emanuel, David Wendler and Christine Grady, What Makes Clinical Research Ethical, 283 JAMA 2701 (2000) (setting forth seven requirements that "should be sufficient to ensure that the vast majority of clinical research is ethical"), discussed by Miller, Trusting Doctors, supra note 1, at 436.
16. See infra note 51 and accompanying text.
17. See Miller, Trusting Doctors, supra note 1 at 436 ("This complete failure to address conflicts of personal interest between clinical investigator and research subject in an article purporting to synthesize ethical research principles constitutes a startling omission in today's market-oriented medical arena.").
18. See Nancy J. Moore, Entrepreneurial Doctors and Lawyers: Regulating Business Activities in the Medical and Legal Professions, in CONFLICTS OF INTEREST IN CLINICAL PRACTICE AND RESEARCH 171 (Roy G. Spece, Jr. et al. eds., 1996) (discussing the regulation of the medical profession as compared to the legal profession) [hereinafter Moore, Doctors and Lawyers]; see also Nancy J. Moore, Limits to Attorney-Client Confidentiality: A "Philosophically Informed" and Comparative Approach to Legal and Medical Ethics, 36 CASE W. RES. L. REV. 177 (1986) [hereinafter Moore, Attorney-Client Confidentiality] (comparing the medical and legal professions' treatment of confidentiality).
19. See Nancy J. Moore, Entrepreneurial Doctors and Lawyers: Regulating Business Activities in the Medical and Legal Professions, in CONFLICTS OF INTEREST IN CLINICAL PRACTICE AND RESEARCH 171 (Roy G. Spece, Jr. et al. eds., 1996) (discussing the regulation of the medical profession as compared to the legal profession) [hereinafter Moore, Doctors and Lawyers]; see also Nancy J. Moore, Limits to Attorney-Client Confidentiality: A "Philosophically Informed" and Comparative Approach to Legal and Medical Ethics, 36 CASE W. RES. L. REV. 177 (1986) [hereinafter Moore, Attorney-Client Confidentiality] (comparing the medical and legal professions' treatment of confidentiality).
20. See Moore, Doctors and Lawyers, supra note 9, at 179.
21. See AMA, Code of Medical Ethics and Current Opinions, supra note 4, at 341. As noted earlier, there are several advisory opinions of the AMA Council on Ethical and Judicial Affairs that address conflicts of interest in clinical research. In addition, a section of the AMA Code of Medical Ethics entitled "Fundamental Elements of Patient-Physician Relationship" states that patients are entitled "to be advised of potential conflicts of interest that their physicians might have."
22. Id. at 341-42. The AMA adopted this section in 1990. I have not found any opinions of the Council on Ethical and Judicial Affairs addressing this proposition.
23. See, e.g., BARRY FURROW ET AL., HEALTH LAW (2d ed. 2000) (containing no entry for conflicts of interest in index nor any discussion of physician conflicts in the chapter on research); ROBERT M. VEATCH, A THEORY OF MEDICAL ETHICS (1981) (containing no entry for conflicts of interest in index). But see ARTHUR L. FRANCE, BIOETHICS: HEALTH CARE, HUMAN RIGHTS, AND THE LAW (1999) (containing brief section on conflicts of interest in medical research, limited to discussion of common law breach of fiduciary duty set forth in Moore; additional reference in index to conflicts of interest refers generally to disclosure obligations of physicians); TERRANCE C. MCCONNELL, MORAL ISSUES IN HEALTH CARE: AN INTRODUCTION TO MEDICAL ETHICS 4-44 (1982) (containing no entry for conflicts of interest in index, but containing a section entitled "Confidentiality and Conflicting Loyalties," including a case study raising a classic conflict of interests between two patients).
24. See, e.g., BARRY FURROW ET AL., HEALTH LAW (2d ed. 2000) (containing no entry for conflicts of interest in index nor any discussion of physician conflicts in the chapter on research); ROBERT M. VEATCH, A THEORY OF MEDICAL ETHICS (1981) (containing no entry for conflicts of interest in index). But see ARTHUR L. FRANCE, BIOETHICS: HEALTH CARE, HUMAN RIGHTS, AND THE LAW (1999) (containing brief section on conflicts of interest in medical research, limited to discussion of common law breach of fiduciary duty set forth in Moore; additional reference in index to conflicts of interest refers generally to disclosure obligations of physicians); TERRANCE C. MCCONNELL, MORAL ISSUES IN HEALTH CARE: AN INTRODUCTION TO MEDICAL ETHICS 4-44 (1982) (containing no entry for conflicts of interest in index, but containing a section entitled "Confidentiality and Conflicting Loyalties," including a case study raising a classic conflict of interests between two patients).
25. See, e.g., BARRY FURROW ET AL., HEALTH LAW (2d ed. 2000) (containing no entry for conflicts of interest in index nor any discussion of physician conflicts in the chapter on research); ROBERT M. VEATCH, A THEORY OF MEDICAL ETHICS (1981) (containing no entry for conflicts of interest in index). But see ARTHUR L. FRANCE, BIOETHICS: HEALTH CARE, HUMAN RIGHTS, AND THE LAW (1999) (containing brief section on conflicts of interest in medical research, limited to discussion of common law breach of fiduciary duty set forth in Moore; additional reference in index to conflicts of interest refers generally to disclosure obligations of physicians); TERRANCE C. MCCONNELL, MORAL ISSUES IN HEALTH CARE: AN INTRODUCTION TO MEDICAL ETHICS 4-44 (1982) (containing no entry for conflicts of interest in index, but containing a section entitled "Confidentiality and Conflicting Loyalties," including a case study raising a classic conflict of interests between two patients).
26. See, e.g., BARRY FURROW ET AL., HEALTH LAW (2d ed. 2000) (containing no entry for conflicts of interest in index nor any discussion of physician conflicts in the chapter on research); ROBERT M. VEATCH, A THEORY OF MEDICAL ETHICS (1981) (containing no entry for conflicts of interest in index). But see ARTHUR L. FRANCE, BIOETHICS: HEALTH CARE, HUMAN RIGHTS, AND THE LAW (1999) (containing brief section on conflicts of interest in medical research, limited to discussion of common law breach of fiduciary duty set forth in Moore; additional reference in index to conflicts of interest refers generally to disclosure obligations of physicians); TERRANCE C. MCCONNELL, MORAL ISSUES IN HEALTH CARE: AN INTRODUCTION TO MEDICAL ETHICS 4-44 (1982) (containing no entry for conflicts of interest in index, but containing a section entitled "Confidentiality and Conflicting Loyalties," including a case study raising a classic conflict of interests between two patients).
27. See Miller, Trusting Doctors, supra note 1, at 426-28 (discussing the role of "trusting" in physician-patient relationship);
28. CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 146 (1986) (discussing role of trust in the attorney-client relationship).
29. For a discussion of legislative and administrative regulation of the medical profession, in addition to self-regulation through medical codes, see Moore, Doctors and Lawyers, supra note 9, at 181-84. The legal profession has far more ability to regulate itself than the medical profession. See id.
30. Miller, Trusting Doctors, supra note 1, at 431 (discussing Kenneth J. Rothman, Conflict of Interest: The New McCarthyism in Science, 269 JAMA 2782, 2782-84 (1993))
31. Miller, Trusting Doctors, supra note 1, at 431 (discussing Kenneth J. Rothman, Conflict of Interest: The New McCarthyism in Science, 269 JAMA 2782, 2782-84 (1993))
32. . 16 Id. Physicians responded similarly to a proposal to ban referrals of patients to health care facilities in which the physicians have an economic interest. See Moore, Doctors and Lawyers, supra note 9, at 178-79: Thus, physicians who voted to reverse their original vote banning self-referrals apparently did so because they were angered by the implication that they could not be trusted to act professionally in caring for their patients. These physicians understand that it is unethical to recommend unnecessary procedures or to refer patients to inappropriate facilities; however, they 'object to the implication that every physician that [sic] is involved in investing in some kind of facilities is guilty of a violation of ethics.' (Footnotes omitted.)
33. As Professor Miller notes, although it is generally believed that physicians owe fiduciary duties to their patients, there is some question whether fiduciary law applies to the same extent as it does to other fiduciaries. See Miller. Trusting Doctors, supra note 1, at 427 n.24 and accompanying text. Professor Miller strongly advocated a stricter application of fiduciary principles to physician behavior. See, e.g., Frances H. Miller, Secondary Income From Recommended Treatment: Should Fiduciary Principles Constrain Physician Behavior?, in THE NEW HEALTH CARE FOR PROFIT, 153 (Bradford H. Gray ed., 1983).
34. As Professor Miller notes, although it is generally believed that physicians owe fiduciary duties to their patients, there is some question whether fiduciary law applies to the same extent as it does to other fiduciaries. See Miller. Trusting Doctors, supra note 1, at 427 n.24 and accompanying text. Professor Miller strongly advocated a stricter application of fiduciary principles to physician behavior. See, e.g., Frances H. Miller, Secondary Income From Recommended Treatment: Should Fiduciary Principles Constrain Physician Behavior?, in THE NEW HEALTH CARE FOR PROFIT, 153 (Bradford H. Gray ed., 1983).
35. See, e.g., American Bar Association, MODEL RULES OF PROFESSIONAL CONDUCT, Rules 1.7-1.12 (2000) . See generally WOLFRAM, supra note 13, at 312-494 (discussing the rules adopted for lawyers regarding conflicts of interest).
36. See, e.g., American Bar Association, MODEL RULES OF PROFESSIONAL CONDUCT, Rules 1.7-1.12 (2000) . See generally WOLFRAM, supra note 13, at 312-494 (discussing the rules adopted for lawyers regarding conflicts of interest).
37. See generally Tamar Frankel, Fiduciary Law, 71 CAL. L. REV. 795 (1983) (providing a comprehensive discussion of the underlying justifications of fiduciary law): WOLFRAM, supra note 13, at 313-14 (discussing the underlying justifications of lawyer conflict of interest rules). Other papers in this conference have questioned both the necessity and the desirability of using fiduciary law for these purposes. I take no position here on that extraordinarily interesting issue. For the purposes of this paper, I take as a given the application of the traditional fiduciary model to physician-patient and attorney-client relationships.
38. See generally Tamar Frankel, Fiduciary Law, 71 CAL. L. REV. 795 (1983) (providing a comprehensive discussion of the underlying justifications of fiduciary law): WOLFRAM, supra note 13, at 313-14 (discussing the underlying justifications of lawyer conflict of interest rules). Other papers in this conference have questioned both the necessity and the desirability of using fiduciary law for these purposes. I take no position here on that extraordinarily interesting issue. For the purposes of this paper, I take as a given the application of the traditional fiduciary model to physician-patient and attorney-client relationships.
39. See Moore, Attorney-Client Confidentiality, supra note 9, at 183.
40. Marc A. Rodwin, The Organized American Medical Profession's Response to Financial Conflicts of Interest: 1890-1992, 70 MILBANK Q. 703, 705 (1992) (discussing AMA's view of conflicts of interest "as matters of personal ethics").
41. See Moore, Attorney-Client Confidentiality, supra note 9, at 183.
42. See id. (citing AMA reaffirmance of status of Principles of Medical Ethics not as laws, but as standards of conduct which define the essentials of honorable behavior for the physician).
43. See id. ("[T]he rider habitually attached by the British Medical Association when giving 'advice' to its members explicitly states that it is open to the doctor to act in accordance with the dictates of his conscience.").
44. Cf. Nancy J. Moore, The Usefulness of Ethical Codes, 1989 ANN. SURV. AM. L. 7, 12 (discussing the views of philosopher John Ladd, who views ethics as '"an open-ended, reflective and critical intellectual activity.' one which cannot be captured in the promulgation of even voluntary rules, guidelines or standards").
45. See AMA, Code of Medical Ethics and Current Opinions, supra note 4, Principles of Medical Ethics, at 341 (Principle IV: "A physician shall respect the rights of patients, of colleagues, and of other health professionals, and shall safeguard patient confidences within the constraints of the law.").
46. See Moore, Attorney-Client Confidentiality, supra note 9, at 186 ("[T]he medical community has been unable, or unwilling, to formulate relatively specific standards governing the permissibility of disclosures which address . . ." certain controversial questions, such as the extent to which the possibility of patient harm to others overrides the confidentiality principle.).
47. AMA, Code of Medical Ethics and Current Opinions, supra note 4, Opinion 8.03, at 388.
48. This is also the view of at least one philosopher of medical ethics, who believes that one solution to conflict of interest problems is to better reduce physicians' inclinations to submit to temptation. See Edmund L. Erde, Conflicts of Interests in Medicine: A Philosophical and Ethical Morphology, in CONFLICTS OF INTEREST IN CLINICAL PRACTICE AND RESEARCH, supra note 9, at 12, 29.
49. See Rothman, supra note 15, at 2783, cited in Miller, Trusting Doctors, supra note 1, at 431 n.47.
50. See Rothman, supra note 15, at 2783, cited in Miller, Trusting Doctors, supra note 1, at 431 n.47.
51. Id. at 2783.
52. See Erde, supra note 29, at 30 ("[T]o have a [conflict of interest] is to be in a situation in which one might plausibly be thought to do something immoral due to a motivation that might tempt most role holders (or this individual).").
53. Geoffrey C. Hazard, Jr., Conflicts of Interest in the Classic Professions, in CONFLICTS OF INTEREST IN CLINICAL PRACTICE AND RESEARCH, supra note 9, at 85.
54. Id. at 85.
55. Cf. id. at 87 (stating that the professional's role requires the exercise of control along three different lines-self-control, mediation, and civic responsibility).
56. Cf. MICHAEL D. BAYLES, PROFESSIONAL ETHICS 78-79 (1983) (distinguishing between "largely unavoidable conflict[s]", such as those between a professional's interest in income and leisure and a client's interest in services, and conflicts of interest "with respect to specific professionals, clients and problems," which "can usually be avoided or removed").
57. In addition, lawyers are understandably more aware of the lawyer's role as fiduciary and the significance of conflict-of-interest doctrine in fiduciary law.
58. See, e.g., BAYLES, supra note 36, at 81 ("Physicians do not have as many conflicts of interest between clients as lawyers, because the health of one does not ordinarily adversely affect the health of others.").
59. See, e.g., Arnold Relman, The New Medical-Industrial Complex, 303 NEW ENG. J. MED. 963 (1980). But see Rodwin, supra note 21, at 704 (noting the medical profession's long history of conflicts of interest involving "fee-splitting, physician's dispensing of drugs they prescribe, and other self-referral practices").
60. See, e.g., Arnold Relman, The New Medical-Industrial Complex, 303 NEW ENG. J. MED. 963 (1980). But see Rodwin, supra note 21, at 704 (noting the medical profession's long history of conflicts of interest involving "fee-splitting, physician's dispensing of drugs they prescribe, and other self-referral practices").
61. See Rothman, supra note 15, at 2783, cited in Miller, Trusting Doctors, supra note 1, at 431 n.47 (stating that both the government and academic scientists face conflicts "in obtaining provocative results, since publicity and prominent publication may bring the rewards of promotion and further research funding"); see also Arnold S. Relman, Economic Incentives in Clinical Investigation, 320 NEW ENG. J. MED. 933 (1989) (conceding that professional ambition in medical scientists creates a risk of bias, but arguing that it also has "a redeeming social value absent from the pursuit of economic self-interest" and, in any event, "interest in professional advancement, unlike the pursuit of private gain, cannot be prevented by legislation or any social action").
62. See Rothman, supra note 15, at 2783, cited in Miller, Trusting Doctors, supra note 1, at 431 n.47 (stating that both the government and academic scientists face conflicts "in obtaining provocative results, since publicity and prominent publication may bring the rewards of promotion and further research funding"); see also Arnold S. Relman, Economic Incentives in Clinical Investigation, 320 NEW ENG. J. MED. 933 (1989) (conceding that professional ambition in medical scientists creates a risk of bias, but arguing that it also has "a redeeming social value absent from the pursuit of economic self-interest" and, in any event, "interest in professional advancement, unlike the pursuit of private gain, cannot be prevented by legislation or any social action").
63. See Rothman, supra note 15, at 2783, cited in Miller, Trusting Doctors, supra note 1, at 431 n.47 (stating that both the government and academic scientists face conflicts "in obtaining provocative results, since publicity and prominent publication may bring the rewards of promotion and further research funding"); see also Arnold S. Relman, Economic Incentives in Clinical Investigation, 320 NEW ENG. J. MED. 933 (1989) (conceding that professional ambition in medical scientists creates a risk of bias, but arguing that it also has "a redeeming social value absent from the pursuit of economic self-interest" and, in any event, "interest in professional advancement, unlike the pursuit of private gain, cannot be prevented by legislation or any social action").
64. See, e.g., Hazard, supra note 33, at 85 (naming "self-control" as one of several techniques used to address conflicts of interest facing professionals).
65. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 121 (1998). Conflict-of-interest doctrine, including not only disciplinary rules, but also the law of disqualification and civil liability based on breach of fiduciary duty, is restated in Chapter 8 of the new Restatement of the Law Governing Lawyers. See generally Nancy J. Moore, Restating the Law of Lawver Conflicts, 10 GEO. J. LEGAL ETHICS 541 (1997) (reviewing the proposed draft of the entire chapter) [hereinafter Moore, Lawyer Conflicts]. For purposes of this article, the most relevant provision of lawyer disciplinary codes is the rule generally addressed to concurrent conflicts of interest.
66. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 121 (1998). Conflict-of-interest doctrine, including not only disciplinary rules, but also the law of disqualification and civil liability based on breach of fiduciary duty, is restated in Chapter 8 of the new Restatement of the Law Governing Lawyers. See generally Nancy J. Moore, Restating the Law of Lawver Conflicts, 10 GEO. J. LEGAL ETHICS 541 (1997) (reviewing the proposed draft of the entire chapter) [hereinafter Moore, Lawyer Conflicts]. For purposes of this article, the most relevant provision of lawyer disciplinary codes is the rule generally addressed to concurrent conflicts of interest.
67. See MODEL RULES OF PROFESSIONAL CONDUCT, Rule 1.7(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 . . . .").
68. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS, § 125, Comment c (2000); see also Rothman, supra note 15, at 2783 (suggesting that a broad range of factors might create a conflict of interest including sexual orientation and religion).
69. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS, § 125, Comment c (2000); see also Rothman, supra note 15, at 2783 (suggesting that a broad range of factors might create a conflict of interest including sexual orientation and religion).
70. See id.
71. See Moore, Lawyer Conflicts, supra note 42, at 548-49 (describing the important steps an individual lawyer should take in analyzing a potentially impermissible conflict of interest).
72. See MODEL RULES OF PROFESSIONAL CONDUCT, Rule 1.8(c) ("A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, Child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee.").
73. See id., Rule 1.8(d) ("Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.").
74. Under the disciplinary code, a conflict is nonconsentable unless "the lawyer reasonably believes the representation will not be adversely affected." Id., Rule 1.7(b)(1); see also RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS, § 122(2)(c) (providing that notwithstanding the informed consent of client, a lawyer may not represent a client if "in the circumstances, it is not reasonably likely that the lawyer will be able to provide adequate representation to one or more of the clients").
75. Under the disciplinary code, a conflict is nonconsentable unless "the lawyer reasonably believes the representation will not be adversely affected." Id., Rule 1.7(b)(1); see also RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS, § 122(2)(c) (providing that notwithstanding the informed consent of client, a lawyer may not represent a client if "in the circumstances, it is not reasonably likely that the lawyer will be able to provide adequate representation to one or more of the clients").
76. See Moore Lawyer Conflicts, supra note 42, at 557. For a defense of the paternalism underline these rules, see generally Nancy J. Moore, Conflicts of Interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and Controversy, 61 TEX. L. REV. 211 (1982) [hereinafter Moore, Conflicts of Interest].
77. See Moore Lawyer Conflicts, supra note 42, at 557. For a defense of the paternalism underline these rules, see generally Nancy J. Moore, Conflicts of Interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and Controversy, 61 TEX. L. REV. 211 (1982) [hereinafter Moore, Conflicts of Interest].
78. One philosopher suggests that disclosing conflicts of interest to patients is not an adequate remedy because it does not resolve the conflict or solve the problem. See Erde, supra note 29 at 28 He further believes that the primary effect of disclosing conflicts would be to cause patients "to be very distrustful and very assertive in largely implausible ways." Id. But his definition of conflicts is so broad as to include virtually every motivation that might tempt a physician to put the physician's own interests above the patient's interests. See supra note 32 and accompanying text. Given such a broad definition of conflict of interest, disclosure is clearly not a workable solution, as it would serve merely to undermine the patient's trust in the professionalism of the physician.
79. See Barnes & Krauss, supra note 1, at 1378 (noting that the American Society of Gene Therapy "adopted a policy . . . that its members engaged in gene therapy research should have no equity, stock options or other ownership interests in the companies whose products they are testing in clinical trials").
80. Id. at 1379.
81. Cf. id. at 1378 ("[P]hysician-researchers are often the primary inventors of new devices, co-own intellectual property rights to those devices with their institutions, and are the primary clinical researchers in regard to their own devices.").
82. See Moore, Conflicts of Interest, supra note 49, at 226 (stating that the waiver of some conflicts is recognized because of the potential benefits of representation to the client), 236-40 (arguing that the justification for making some conflicts nonconsentable is concern that consent is not truly informed and voluntary).
83. See Miller, Trusting Doctors, supra note 1 at 434 ("With hindsight, a research subject's health may indeed turn out to be significantly improved by participating in an experimental study. The chances of improvement, however, are statistically unlikely in most experimental protocols. In fact, many experimental subjects are randomized to the conventional therapy or placebo arm of the clinical trial and receive no innovative treatment at all. To characterize Phase One and Phase Two stages of clinical trials as 'experimental therapy' is, at best, an exercise in mutual self-deception, and at worst, could constitute deliberate misrepresentation.").
84. See id.
85. See RECRUITING HUMAN SUBJECTS, supra note 3, at 22 (discussing the risk of information being passed from physician to be patient becoming distorted, either consciously or unconsciously); cf. Fred C. Zacharias, Waiving Conflicts of Interest, 108 YALE L.J. 407, 422 (1998) (speculating that code provisions providing for certain nonconsentable conflicts might be explained by a distrust of the information and explanation given by lawyers with "a vested economic interest in retaining their clients").
86. See RECRUITING HUMAN SUBJECTS, supra note 3, at 22 (discussing the risk of information being passed from physician to be patient becoming distorted, either consciously or unconsciously); cf. Fred C. Zacharias, Waiving Conflicts of Interest, 108 YALE L.J. 407, 422 (1998) (speculating that code provisions providing for certain nonconsentable conflicts might be explained by a distrust of the information and explanation given by lawyers with "a vested economic interest in retaining their clients").
87. See RECRUITING HUMAN SUBJECTS, supra note 3, at 22.
88. Id. at 23.
89. See Miller, Trusting Doctors, supra note 1, at 429-31.
90. This lack of a benefit is most striking when an additional payment per subject enrolled is offered as the enrollment deadline nears and additional subjects are still needed. In this case it seems obvious that the payments are made solely to encourage speedy enrollments. See RECRUITING HUMAN SUBJECTS, supra note 3 at 17; see also supra note 3 (discussing the difficulty of distinguishing actual costs from incentive payments).
91. This lack of a benefit is most striking when an additional payment per subject enrolled is offered as the enrollment deadline nears and additional subjects are still needed. In this case it seems obvious that the payments are made solely to encourage speedy enrollments. See RECRUITING HUMAN SUBJECTS, supra note 3 at 17; see also supra note 3 (discussing the difficulty of distinguishing actual costs from incentive payments).
92. See id. at 17 ("The distinction between payment and enrollment incentives, however, can get blurred in practice.").
93. Cf. Miller, Trusting Doctors, supra note 1, at 438-39 (discussing how various conflicting financial interests need to "be manage[d]. reduc[ed], or eliminat[ed]").
94. See Moore, Doctors and Lawyers, supra note 9, at 182-84 (discussing the greater role played by legislative and administrative bodies in regulating physicians than in regulating lawyers).
95. For example, one medical ethicist discusses a case in which a physician learns that his patient, David, is a homosexual. Five years later, he learns that his long-time patient, Joan, is engaged to marry David. The case is treated as one involving "conflicting loyalties, a case where the physician must divulge confidential information about one patient in order to benefit another patient." MCCONNELL, supra note 12, at 42-43. The author dismisses his own analogy to lawyers' conflict-of-interest doctrine by noting that "this sort of conflict cannot be anticipated by the medical worker," and then proceeds to resolve the conflict in favor of nondisclosure. Id. at 42-43. Of course, unanticipated conflicts arise quite frequently in legal practice, and conflict-of-interest doctrine requires that the lawyer withdraw from representing both clients when informed consent is impossible, as it would be in this case. See MODEL RULES OF PROFESSIONAL CONDUCT, Rule 1.7, Comment 2 (stating that when a conflict arises after representation has been undertaken, the lawyer should withdraw from the representation), Comment 5 (stating that if one client refuses to consent to disclosure essential to the other client's informed consent, the conflict is nonconsentable).