Opinions

Ethics Opinion 360

Contact With Non-Party Treating Physician Witness


The principal question presented is whether a lawyer may ask his or her client's treating physician not to have ex parte communications with opposing counsel in a medical malpractice case where legal restrictions on such communications based on privacy laws and/or physician-patient privilege have been removed.

Under D.C. Rule 3.4(f), the lawyer may inform his or her client's treating physician that the treating physician has no obligation to speak with opposing counsel and that the treating physician may decline to speak to opposing counsel without the lawyer also present. To the extent that privacy laws or applicable privileges may restrict the scope of information that the treating physician may disclose, the lawyer may also demand that the physician comply with confidentiality obligations that have not been removed and may state his or her client's position as to the scope of information that may be legally disclosed. The lawyer may not, however, request or instruct the physician not to have communications with opposing counsel or request or instruct that any communications take place only if the lawyer is present.

Applicable Rules:
  • Rule 3.4(a), (f) - Fairness to Opposing Party and Counsel
  • Rule 4.4(a) – Respect for Rights of Third Persons
  • Rule 4.3 – Dealing with Unrepresented Person

Inquiry
The Committee has received an inquiry from a lawyer who handles medical malpractice cases. In at least one case, the court has entered a qualified protective order which the lawyer describes as lifting restrictions on ex parte communications between defense counsel and the plaintiff's treating physician under the Health Insurance Portability and Accessibility Act (HIPAA). In such a situation, the plaintiff's counsel would prefer that the treating physician not have ex parte communications with defense counsel. The lawyer asks three questions about the information or requests the plaintiff's counsel may ethically convey to the client's physician. First, may the plaintiff's counsel request that the physician decline to speak with defense counsel? Second, if the answer to the first question is negative, may the plaintiff's counsel inform the treating physician that he or she is not required to speak with defense counsel if the physician does not want to? Third, may plaintiff's counsel request that the physician decline to speak with defense counsel unless plaintiff's counsel is also present?

Discussion
The question presented is primarily governed by Rule 3.4(f) of the D.C. Rules of Professional Conduct. Before addressing the applicability of Rule 3.4(f), however, we address briefly a threshold issue. Because the person who would be providing information is a treating physician, there is an initial issue regarding whether defense counsel's communications with the treating physician are restricted by Rule 4.4(a), which prohibits a lawyer from "knowingly us[ing] methods of obtaining evidence that violate the legal rights of [a third] person." Comment [1] to Rule 4.4(a) states that the lawyer's responsibility to a client

does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.

Such rights would also include legal protections applicable to the physician-patient relationship arising from privacy laws or any applicable physician-patient privilege.[1] Thus, Rule 4.4(a) would prohibit defense counsel from asking the treating physician questions eliciting information that would be privileged or otherwise legally protected.

In the scenario presented, we assume that any absolute bars to the treating-physician's disclosure to defendant's counsel of medical information relating to the plaintiff have been removed as a result of the qualified protective order referred to by the inquiring lawyer and/or by waivers of privilege resulting from the institution of the malpractice litigation. At the same time, however, we assume that there still may be legal restrictions that would preclude the physician from disclosing information unrelated to the litigation.[2]

Based on those assumptions, we now turn to the application of Rule 3.4(f), which provides as follows:

A lawyer shall not:

(f) 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 an employee or other agent of a client; and

(2) The lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

The first issue is whether the treating physician falls within any of the exceptions in Rule 3.4(f), which are limited to the lawyer's client, a client's relative, and a client's employee or other agent. Comment [9] to Rule 3.4 explains that "[p]aragraph (f) permits a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client." None of these exceptions would apply here. There is no indication that the treating physician is a relative or employee of the plaintiff; nor are any facts presented that would establish an agency relationship between the client and the physician.[3]

Accordingly, other than the possible legal restrictions on the scope of what the treating physician may disclose (an issue discussed further below), the treating physician is no different from any other witness who is neither a client nor a relative, employee, or other agent of a client, and the answer to the inquiring lawyer's first question is clear. Rule 3.4(f) prohibits plaintiff's counsel from requesting that the physician decline to speak with defense counsel.

As to the second question, although plaintiff's counsel may not request that the treating physician not communicate with opposing counsel, it is permissible for plaintiff's counsel to inform the treating physician that he or she is not required to speak with defense counsel if the physician does not want to do so. See Restatement (Third) of The Law Governing Lawyers §116 cmt. e (2000) ("A lawyer may inform any person of the right not to be interviewed by any other party …").

The third question is whether plaintiff's counsel may request that the treating physician not communicate with defendant's counsel unless plaintiff's counsel is also present. In other words, plaintiff's counsel would not be seeking to preclude communications entirely, but would be requesting that a condition be attached to any such communications – i.e., that they only occur if plaintiff's counsel is present. We conclude that, although plaintiff's counsel may inform the treating physician of the right to insist on the presence of plaintiff's counsel during any communications with defendant's counsel, plaintiff's counsel may not request that the physician communicate with defendant's counsel only if plaintiff's counsel is present. Although Rule 3.4(f) expressly prohibits only a request "to refrain from voluntarily giving relevant information to another party," it would be inconsistent with the intent of the rule to permit a lawyer to request that conditions be imposed on communications with opposing counsel that could discourage the witness from allowing the communication. Comments to Section 116(4) of the Restatement (Third) of The Law Governing Lawyers, which is generally similar to Rule 3.4(f), support this conclusion:

A lawyer may inform any person of the right not to be interviewed by any other party, but a lawyer may not request that a person exercise that right or attempt otherwise to induce noncooperation, except as permitted under Subsection (4).[4] A lawyer may also advise of the right to insist on conditions, such as that the lawyer or the person's own lawyer be present during any interview or that the interview be recorded.

Restatement (Third) of The Law Governing Lawyers §116 cmt. e (2000). See also D.C. Rule 3.4(a) ("A lawyer shall not: (a) obstruct another party's access to evidence or alter, destroy, or conceal evidence, or counsel or assist another person to do so, if the lawyer reasonably should know that the evidence is or may be the subject of discovery or subpoena in any pending or imminent proceeding . . . .").

We recognize that allowing lawyers to inform witnesses that they have no obligation to speak with opposing counsel, or that they can insist on the presence of other counsel as a condition, may result in a decision by the witness not to speak with opposing counsel. That possible result, however, is consistent with the intent of Rule 3.4(f), which is to allow the witness to make that decision based on what the witness perceives to be in his or her best interest. On the other hand, Rule 3.4(f) does not permit the lawyer to request that the witness make a particular decision.

We believe our conclusion is also consistent with and supported by Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966). In Gregory, the prosecutor in a capital case acknowledged that "'I instructed all the witnesses that they were free to speak to anyone they like. However, it was my advice that they not speak to anyone about the case unless I was present.'" Id. at 187. The court held that this conduct deprived defendant of a fair trial. Id. at 189; see also id. at 188 ("we know of nothing in the law which gives the prosecutor the right to interfere with the preparation of the defense by effectively denying defense counsel access to the witnesses except in his presence"). Gregory was decided primarily on the basis of criminal law and procedure in the context of a capital case and long before the D.C. Rules of Professional Conduct went into effect in 1991, so it has no direct applicability to the question before the Committee; however, our conclusion would preclude the same conduct that the Gregory holding precludes.[5]

There are several other issues raised by the scenario presented by the inquiry. First, if (as assumed) there are still some legal limits on the scope of information that the treating physician may disclose to defendant's counsel based on privacy laws and/or applicable privileges (notwithstanding the fact that legal impediments to the disclosure of certain information have been removed), it is proper for plaintiff's counsel to demand that the treating physician comply with legal confidentiality obligations and to inform the treating physician of plaintiff's position regarding the extent of those obligations. Restatement (Third) of The Law Governing Lawyers §116 cmt. e (2000) ("A lawyer may properly demand that a person who is not otherwise excepted from the Subsection observe a legal obligation of confidentiality to the lawyer's client. For example, a physician or member of the clergy who is considered to be an independent contractor may nonetheless owe a legal duty of confidentiality to the client, which the client's lawyer may properly insist that the person observe."). Second, as noted earlier, defendant's counsel should not solicit information the disclosure of which remains restricted. See D.C. Rule 4.4(a). Third, counsel for both sides should comply with Rule 4.3 in dealing with unrepresented persons.[6] See generally D.C. Ethics Opinion No. 287 (discussing Rules 4.3 and 4.4 in the context of ex parte contact with former employees of party-opponents).[7]

Conclusion
Under Rule 3.4(f), a lawyer may not request the client's treating physician to refrain from having ex parte communications with opposing counsel where legal impediments to such communications have been removed. The lawyer may, however, inform the physician that the physician has no obligation to speak with opposing counsel and that the physician may insist on the lawyer being present. The lawyer may also demand that the physician comply with any confidentiality obligations still in effect and may state his or her client's position regarding the scope of information that may be legally disclosed.

Published: August 2011

[1] The Committee does not opine on legal issues, but offers the following two examples of potential legal restrictions. First, under federal law, privacy rules under the Health Insurance Portability and Accessibility Act (HIPAA) generally prevent the unauthorized disclosure of "protected health information" of a patient, which is defined broadly. 45 C.F.R. § 160.103 (2011). Second, the District of Columbia has codified a physician-patient privilege, and a physician may not be permitted to disclose confidential patient information without the patient's consent, depending on the circumstances of a given case and a plaintiff's potential waiver of the privilege by placing her physical condition at issue in litigation. See D.C. Code §14-307; Street v. Hedgepath,607 A.2d 1238, 1246(D.C. 1992).

[2] Lawyers involved in a case such as that presented by the inquiry will need to determine the extent to which there may be legal restrictions on a witness's disclosure of information and the extent to which any such restrictions may have been waived, removed by court order, or otherwise lifted. Such legal issues are beyond the scope of this opinion.

[3] We do not rule out the possibility that in a particular case, a treating physician may have become an agent of his or her patient for particular purposes, but we have found no basis for treating the physician-patient relationship as an agency relationship as a general matter for purposes of Rule 3.4(f). See Restatement (Third) of The Law Governing Lawyers §116 cmt. e (2000) (implying that physicians generally do not fall within any of the exceptions to Section 116, which includes an exception for agents of the client).

[4] Section 116(4) states as follows: "A lawyer may not request a person to refrain from voluntarily giving relevant testimony or information to another party, unless: (a) the person is the lawyer's client in the matter; or (b) (i) the person is not the lawyer's client but is a relative or employee or other agent of the lawyer or the lawyer's client, and (ii) the lawyer reasonably believes compliance will not materially and adversely affect the person's interests." Section 116(4) of the Restatement (Third) of The Law Governing Lawyers.

[5] We also note that there was some discussion of Gregory in the context of Rule 3.4(f) when the D.C. Rules of Professional Conduct were being developed. The D.C. Court of Appeals asked Robert E. Jordan, III, Chair of the D.C. Bar Model Rules of Professional Conduct Committee that was responsible for the original version of these rules, to review the comments submitted on the proposed rules in 1988. He responded as follows to one of the comments on proposed Rule 3.4(f):

The Courts/Lawyers Section expresses concern that Rule 3.4(f), as written, does not reflect the limitation imposed on lawyers representing the government in a criminal case by Gregory v. United States, 125 U.S. App. D.C. 140, 369 F.2d 185 (1966), cert. denied, 396 U.S. 865 (1969). That decision concludes that it is improper for the government to interfere with defense efforts to obtain information, and the Section expresses concern that Rule 3.4(f) might be read as permitting a prosecutor to request that government employees such as investigative personnel or medical examiners not speak to defense counsel.
 
I doubt that government prosecutors would take the ethics rule as freeing them from such obligations as Gregory imposes, and I would not agree that a specific black letter addition be made to deal with the perceived problem. Furthermore, if any such addition were made, it should be to Rule 3.8, which lays out special rules applicable to prosecutors.
 
I suggest that the problem perceived by the Section can be remedied by adding to the Comment paragraph 10 the following:
 
Paragraph (f) does not alter any limitations, imposed upon prosecutors in criminal cases by judicial decisions or other law, with respect to impeding access to government employees who may have information relevant to defending against criminal charges.
 
If the Court wishes to deal with this problem, I recommend this solution.

Analysis of Comments Submitted to the District of Columbia Court of Appeals in Response to the Court's Order of September 1, 1988 (May 3, 1989), at 66-67. The D.C. Court of Appeals did not make any changes to the text of proposed Rule 3.4(f) or proposed comment [10] (now comment [9]) in response to the referenced comments.

[6] Rule 4.3 states:

(a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not:

(1) give advice to the unrepresented person other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer's client; or
(2) state or imply to unrepresented persons whose interests are not in conflict with the interests of the lawyer's client that the lawyer is disinterested.

(b) When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

[7] We assume from the inquiry that the treating physician is not represented by counsel and that Rule 4.2 is therefore not implicated.

August 2011