(Approved May 28, 1999)
Issue: May a defense lawyer make ex
parte contact with plaintiff’s treating physician?
Opinion: No ethical rule prohibits
ex parte contact with plaintiff’s treating physician
when plaintiff’s physical condition is at issue.
Analysis: It is neither uncommon nor
improper, under the Utah Rules of Professional Conduct, for an attorney
to make ex parte contacts with witnesses involved in a controversy,
including witnesses for the adversary. When that witness is a medical
doctor, especially one who has treated the plaintiff in a litigation,
concerns may be raised about the physician’s and both lawyers’
ethical responsibilities to maintain confidences and to abide by other
professional responsibilities.
In cases where the witness-physician is not separately
represented by another lawyer in the matter, there is no provision of
the Rules of Professional Conduct that prohibits a defense attorney
from making an ex parte contact with the plaintiff’s
treating physician.
Although there may be a potential for ethical misconduct
arising out of such a contact, such misconduct can be separately addressed
and remedied in accordance with the appropriate rules. In an opinion
issued in 1993, the American Bar Association held that no provision
of the Model Rules of Professional Conduct directly prohibits ex
parte contacts with the other side’s witnesses in civil matters.
The ABA opinion discusses the ethical rules in light of expert witnesses
as well as fact witnesses:
There are nonetheless some ethical limitations that apply
to contacts with any witness, and some additional limitations that
may have different application to expert witnesses. Among the former,
the principal limitations are the obligations of candor imposed by
Rule 4.3 on dealing with unrepresented
persons. When a lawyer contacts any witness, lay or expert, actual
or potential, a lawyer must not knowingly leave the witness in ignorance
of the lawyer’s relationship to the case that gives occasion
to the contact. Further, the lawyer may not, consistent with Rule
4.1(a), convey the message, directly
or indirectly, that the witness must speak to the lawyer.
As with any other witness not under subpoena, an expert witness may
choose not to discuss the case with the lawyer. In fact, the opposing
party or its lawyer may properly have asked the expert not
to discuss the case with the inquiring lawyer. See Model Rule 3.4(f).
The ABA opinion also warns about attempts to induce
an opposing witness to reveal confidences:
[B]oth fact witnesses and experts may be in possession of
confidences of the opposing party, or work product of that party’s
lawyer, about which it would be improper to inquire. See American
Protection Insurance Co. v. MGM Grand Hotel—at Vegas, 748
F.2d 1293, 1301 (9th Cir. 1984), holding that “A corollary of
the attorney’s duty not to reveal confidences of a client is
the duty not to seek to cause another to do so.”1
Using an ex parte contact to attempt to obtain
information protected by the physician-patient privilege would violate
Utah Rules of Professional Conduct 3.4(c),
4.4, and 8.4(d).
Other considerations arise when the physician’s role is to appear
as an expert witness; the Committee notes that an expert witness may
be privy to opposing counsel’s legal theories and thought processes
and there may be little information from that physician-expert that
would not be protected by the appropriate confidential privileges.
In addition to the concerns raised in ABA Opinion 93-378,
it would also be improper for the attorney to attempt to persuade the
witness not to testify;2to
disobey or to circumvent the appropriate court rules concerning discovery
and evidence;3to
ask a person other than a client to refrain from voluntarily giving
relevant information to another party;4or
use the ex parte contact in a way that may tend to embarrass,
delay or burden the doctor.5Overreaching
by counsel in the ways discussed above is prohibited by the ethics rules,
as is similar improper influence on the part of plaintiff’s counsel.
The mere possibility of misconduct by an attorney during
an ex parte contact with a physician does not justify a blanket
prohibition on such ex parte contacts. Thus, it would not be
appropriate to assume that an ex parte interview conducted
by either plaintiff or defendant would be outside the bounds of proper
discovery.6
An attorney must conform to the rules of the court and particular rules
of evidence and discovery in each case. The court may limit or condition
ex parte contacts, but as a matter of professional ethics and
the existing rules, there is no bar to such ex parte contacts.
Many states have come to the same opinion that attorneys for a defendant
in a personal injury case have the right to interview plaintiff’s
treating physician ex parte.7
The attorneys involved in an ex parte contact
of an opposing witness may appropriately be concerned about the extent
of a physician-patient privilege. The nature and extent of that privilege
is carefully defined in statute, rule and court decision and is, therefore,
a matter for legal interpretation. It is not the function of this Committee
to offer legal advice regarding the extent of the privilege; in situations
where the question is a close one, the matter should be addressed by
the parties in concert with the court, applying applicable rules of
discovery and evidence.
Footnotes
1.ABA Comm.
On Ethics & Prof. Responsibility, Formal Op. 93-378. The opinion
also reminds attorneys that Rule 3.4(b)
prohibits attorneys from “counsel[ing] or assisting[ing] a witness
to testify falsely.”
2.“A
lawyer shall not . . . unlawfully obstruct another party’s access
to evidence or unlawfully alter, destroy or conceal a document or other
material having potential evidentiary value. A lawyer shall not counsel
or assist another person to do any such act.” Utah Rules of Professional
Conduct 3.4(a).
3. “A
lawyer shall not . . . knowingly disobey an obligation under the rules
of a tribunal except for an open refusal based on an assertion that
no valid obligation exists.” Id. 3.4(c)
4. “A
lawyer shall not . . . request a person other than a client to refrain
from voluntarily giving relevant information to another party unless:
(1) The person is a relative or other agent of a client; and (2) The
lawyer reasonably believes that the person’s interests will not
be adversely affected from giving such information.” Id.
3.4(f).
5.“In
representing a client, a lawyer shall not use means that have no substantial
purpose other than to embarrass, delay, or burden a third person, or
use methods of obtaining evidence that violate the legal rights of such
a person.” Id. 4.4.
6.State
ex rel. Stufflebam v. Appelquist, 694 S.W.2d 882 (Mo. App. 1985).
7.See,
e.g., Mich. Ethics Op. 60 (Dec. 1980); Mich. Ethics Op. 177 (July
1958); Wash. State Bar Ethics Op. 108 (April 1962); Wash. State Bar
Ethics.
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