Opinion #93. Requesting Release of Medical Records from Adverse Party Represented by Counsel

Issued by the Professional Ethics Commission

Date Issued: February 15, 1989

Question

The question presented is whether an employer’s attorney would violate Rule 3.6(j) of the Maine Code of Professional Responsibility if the attorney made a request directly to an employee for the release of medical records, in accordance with the provisions of Title 39 M.R.S.A. Sec. 52‑A, knowing that the employee is represented in the matter by an attorney.

Opinion

Section 52‑A provides that an employee who makes a claim for compensation “shall upon request by the employer, execute a certificate . . . ” for the release of medical records. As amended by P.L. 1987, c. 559, sec. 21, the statute further imposes sanctions upon an employee “if he fails to execute such a certificate within 20 days after receiving a request made by certified mail, return receipt requested. . . .” To invoke the sanctions in the event of non‑compliance, the request must contain a notice to the employee that if he fails to execute the certificate within 20 days after receiving the request the statutory sanctions will apply.

The concern raised by the present inquiry stems from the directive of Rule 3.6(j), which prohibits a lawyer during the course of his representation of a client from communicating or causing another to communicate “on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.” The rule thus effectively mandates that all communication with an opposing party must occur exclusively through counsel, absent the applicability of one of the stated exceptions.

Section 52‑A, as amended, expressly commands that the request for execution of the certificate be made by certified mail, return receipt requested, upon the employee. This language constitutes a clear directive that the employee, and not the employee’s lawyer, personally receive the communication. The requirement that the communication be personally received makes it “authorized by law.”

A word of caution remains in order, however, in that the mere fact that direct communication is authorized by statute in no way detracts from the fundamental application of Rule 3.6(j) insofar as the rule continues to require that any communication concerning the subject matter of the representation involve opposing counsel. To comply with the rule, counsel for the employer in these circumstances must mail a copy of the certificate request to the employee’s lawyer, if the employee is known to be represented, at the same time that it is sent to the employee. The logic of this application of the rule is particularly compelling given the severe potential consequences to the employee’s claim in the event of non‑compliance, and the fact that the current prescribed form for the certificate request (WCC‑220 Rev. 5/88) contains no admonition to the employee to consult his attorney concerning whether or not to comply.


Enduring Ethics Opinion