Opinion #82. Communication with Opposing Party's Physician

Issued by the Professional Ethics Commission

Date Issued: November 4, 1987

Question

Is it a violation of the Maine Bar Rules for defendant’s counsel in a personal injury action to discuss plaintiff’s medical condition and treatment with the plaintiff’s treating physician without having obtained permission from plaintiff’s counsel to do so?

Opinion

It is the opinion of the Commission that under the circumstances described in the above inquiry, the Maine Bar Rules do not prohibit the defendant’s lawyer from discussing the plaintiff’s medical condition and treatment with plaintiff’s treating physician.[1]

The only Bar Rule which directly concerns the subject of a lawyer’s communications with witnesses is Bar Rule 3.7(g). None of the provisions of that Rule, however, address the question of the propriety of counsel’s communicating with an opposing party’s physician or other expert witnesses.

Our opinion is in accord with a 1979 opinion of the Professional Ethics Committee of the Maine State Bar Association in which that Committee concluded that the A.B.A. Code of Professional Responsibility did not prohibit plaintiff’s counsel from communicating privately with a medical expert who had been retained by defense counsel to examine plaintiff’s medical condition.[2] Several legal ethics committees of other bar organizations have reached the same result under various canons and rules. See, e.g., ABA Comm. on Ethics and Professional Responsibility, Informal Op. 892 (10/11/65); ABA Comm. on Ethics and Professional Responsibility, Formal Op. 127 (3/15/35); Ethics Comm. of Alaska Bar Assoc. Op. 84‑8 (8/25/84); Legal Ethics Comm. of Indianapolis Bar Assoc. Op. 5‑1985 (12/13/85); Comm. on Professional Ethics and Conduct of Iowa State Bar Assoc. Op. 83‑19 (12/13/83); Ethics Comm. of North Carolina State Bar Assoc. Op. 338R (10/18/83); Comm. on Professional Ethics of State Bar of Wisconsin Op. E‑83‑13 (11/83).[3]

Although the Maine Bar Rules themselves do not prohibit such ex parte contact with plaintiff’s treating physician, counsel should realize that the propriety of such conduct as a matter of law is a question which has not been decided by the Maine Supreme Judicial Court, and courts in other jurisdictions are sharply divided on this question of law. Some courts have concluded that such informal methods of obtaining information are not prohibited by discovery rules; that no party has a proprietary interest in any witness’s evidence; and that indeed such private interviews avoid the expense of formal discovery proceedings and play a useful role in formulating early evaluation and settlement of cases, thus promoting judicial economy. See, e.g., Doe v. Eli Lilly & Co., Inc., 99 F.R.D. 126 (D.D.C. 1983); Trans‑World Investments v. Drobny, 554 P.2d 1148 (Alaska 1976); Gailitis v. Bassett, 146 N.W.2d 708 (Mich. App. 1966).

On the other hand, a greater number of courts have ruled that such ex parte contacts with a plaintiff’s physician are impermissible for one or more of the following reasons: because discovery rules provide the exclusive mechanism for obtaining information from a medical witness; or because such ex parte interviews violate public policy promoting protection of the physician‑patient privilege, notwithstanding that the plaintiff may have waived that privilege as to certain matters respecting plaintiff’s condition by reason of having instituted a lawsuit in which plaintiff’s condition is at issue. See, e.g., Miles v. Farrell, 549 F.Supp. 82 (N.D. Ill. 1982); Hammonds v. Aetna Casualty & Surety Company, 243 F.Supp. 793 (N.D. Ohio 1965); Karsten v. McCray, 509 N.E.2d 1376 (Ill. App. 1987); Petrillo v. Syntex Laboratories, Inc., 499 N.E.2d 952 (Ill. App. 1986); Roosevelt Hotel Limited Partnership v. Sweeney, 394 N.W.2d 353 (Iowa 1986); Schwartz v. Goldstein, 508 N.E.2d 97 (Mass. 1987); Wenninger v. Muesing, 240 N.W.2d 333 (Minn. 1976); Jaap v. District Court of the Eighth Judicial District, 623 P.2d 1389 (Mont. 1981); Stoller v. Moo Young Jun, 118 A.D.2d 637, 499 N.Y.S.2d 790 (1986); State ex rel. Klieger v. Alby, 373 N.W.2d 57 (Wis. App. 1985).[4]

Given this split of judicial authority, it is evident that persuasive arguments can be made on either side of this important question of law. The decision of that question entails consideration of significant public policy issues, the scope and effect of the discovery rules and the Rules of Evidence,[5] as well as the questions of the possible liability of the physician and the admissibility of the physician’s testimony under circumstances where the physician has discussed the case privately with the defendant’s counsel. This Commission, however, is not authorized to determine and formulate rules of law or to decide such matters of public policy. Since our jurisdiction is limited to interpreting the provisions of the Maine Bar Rules, we decline to answer the question presented as a matter of law and conclude only that the Maine Bar Rules themselves do not prohibit the conduct which is the subject of this inquiry.


Footnotes

[1] The ethical propriety of interviewing an expert retained or specifically employed by another party in anticipation of litigation or preparation for trial may involve other considerations not applicable where the expert is the treating physician, see Me. R. Civ. P. 26(4), and is beyond the scope of this opinion.

[2] Maine State Bar Assoc. Ethics Op. 73 (2/2/79), in 13 Maine Bar Bulletin 67.

[3] Several other legal ethics committees have reached a contrary result or have imposed conditions on such interviews. See, e.g., Professional Ethics Comm. of Akron Bar Assoc. Op. 11 (12/83); Colorado Bar Assoc. Ethics Comm. Op. 71 (9/21/85) (plaintiff’s counsel must be notified and given an opportunity to be present); Comm. on Professional and Judicial Ethics of State Bar of Michigan Op. CI‑587 (12/19/80) (consent of plaintiff’s counsel required where interview attempts to obtain privileged information); Comm. on Professional Ethics of New York State Bar Assoc. Op. 577 (11/20/86) (provided lawyer may not attempt to discover from expert, without knowledge or consent of opposing counsel, matters which are protected by an evidentiary or work‑product privilege); Legal Ethics and Unlawful Practices Comm. of San Diego County Bar Assoc. Op. 1983‑9 (1983) (prior notification to plaintiff’s counsel required); Ethics Comm. of Board of Professional Responsibility of Tennessee Supreme Court Op. 85‑F‑86 (lawyer must fully disclose his role to physician and not engage in fraud, deceit or misrepresentation). See also Code of Professional Responsibility Comm. of Washington State Bar Assoc. Op. 180 (undated).

[4] A recent decision of the Supreme Court of New Jersey, while allowing defense counsel to privately interview plaintiff’s physician specified several conditions which must be met: defense counsel must provide plaintiff’s counsel with reasonable notice of the time and place of the proposed interview, must provide physician with a description of the scope of the interview, and must communicate with unmistakable clarity that the physician’s participation at an ex parte interview is voluntary. Stempler v. Speidell, 495 A.2d 857 (N.J. 1985). In that case, the court also solicited the views of the Civil Practice Committee with regard to amending the Court Rules to deal with this issue more formally.

[5] See Maine Rules of Evidence, Rule 503(e)(3) (no physician‑patient privilege under Rule 503 “as to communications relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which the condition of the patient is an element of the claim or defense of the patient . . . “).


Enduring Ethics Opinion