Bar Counsel Notes: Contact with witnesses

May defense counsel in a personal injury action discuss the plaintiffs medical condition with the plaintiffs treating physician without having received permission from the plaintiffs attorney to do so?

This question is addressed by Professional Ethics Commission Advisory Opinion #82 (11/4/87). The Commission found that for this very limited question, the Maine Bar Rules do not contain any rule specifically prohibiting such ex parte contact. The opinion is quite clear, however, that the Commission's jurisdiction is only limited to the interpretation of the Maine Bar Rules, and that the many persuasive arguments for a contrary result prohibiting such contact" ... entails consideration of significant public policy issues, the scope and effect of the discovery rules and the Rules of Evidence... ", all of which are beyond the Commission's jurisdiction. The opinion includes a very helpful list of many citations from other jurisdictions with both similar and contrary holdings on this issue. (At the outset, the Commission notes in footnote 1 that counsel's" .. .interviewing an expert retained or specifically employed by another party in anticipation 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.")

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.