A comparative approach to conflicts of interest
In a recent article in the Penn State Law Review, Conflicts of Interest in Medicine, Research and Law: A Comparison, Stacey A. Tovino of the University of Nevada at Las Vegas law school reviews approaches to managing COIs in three different professional settings. The piece begins with an analysis of legal regimes regarding COIs in clinical medicine, and particularly those arising from the involvement of individuals who, whether due to age or otherwise, have impaired decision making capacities; then examines how different state laws address COIs in human subjects research (a context that, “[u]nlike treatment…is fraught with” COIs); and, finally, compares and contrasts the above-mentioned approaches with those used for managing COIs in the context of legal representation.
Tovino “finds that the law imposes more stringent duties relating to the identification and management of conflicts of interest in the context of legal representation compared to the contexts of clinical medicine and human subjects research.” Among other things, the latter standards do not “recognize and explicitly refer to the concept of ‘conflict of interest,’” to the extent the former does. They are also less stringent with respect to disclosure of conflicts than are the relevant legal representation standards, and the same is true regarding aspects of conflicts management. Based on this analysis, Tovino argues that “state laws governing conflicts of interest in clinical medicine and human subject research should consider borrowing approaches to conflicts management that are set forth in state rules of attorney professional conduct.”
I applaud Tovino’s exercise in comparative COI analysis. Indeed, in establishing this blog, one of my goals was to provide a compendium of information about the treatment of COIs in different industries or other business contexts (the beginnings of which are collected here) in the hope that those dealing with conflicts in one setting – whether as regulators, compliance personnel or in other roles – can benefit from the experience of others in doing so.
(Thanks to Bill Sachs of HCCS for letting me know about Tovino’s article.)