In a personal injury case, can defense counsel talk to the plaintiff's treating physician without the plaintiff's lawyer's consent?

Currency note

This opinion was issued in 1975, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former California Rules 1-100, 7-101, and 7-103 (the latter embodied in former Rule 12 when the request was received), the predecessors to the current rules on communicating with represented persons and the duties of advocacy (current Rules 4.2 and 4.4; Model Rules 4.2 and 4.4). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee considered whether, in a pending personal injury action, defense counsel may communicate with the plaintiff's treating physician without the consent of the plaintiff or plaintiff's counsel. It assumed the discussion would touch information otherwise privileged under Evidence Code sections 992-995, that filing the action had waived the privilege as to at least part of that information under Evidence Code section 996, and that the physician might also hold additional privileged information not subject to any waiver. The committee noted that conversation within the waiver would not violate the privilege, but conversation about unwaived matters would, and that both physician and counsel are barred from violating the patient's privilege (the physician having a duty to assert it on the patient's behalf, citing Roberts v. Superior Court and Rudnik v. Superior Court).

On the rule, the committee found that former Rule 7-103 (no communication with a party known to be represented, without opposing counsel's consent) did not cover the situation, because the physician is not a party. It cautioned that the failure of a rule to prohibit conduct does not mean the conduct is approved (former Rule 1-100). It reviewed the Inter-Professional Code (California Medical Association and State Bar) and out-of-state opinions (Michigan Opinions Nos. 68 and 177, Missouri Opinion No. 37, Washington Opinion No. 115, and ABA Opinion No. 14 (1929)), which split on the question.

The committee concluded that a discussion limited to waived material is not improper, that extreme care should be used to avoid unwaived material, and that, because of the danger of straying into improper areas, defense counsel should notify the plaintiff or plaintiff's counsel in all cases before communicating with the treating physician. It gave four reasons: the privilege warrants the highest standard of conduct to prevent unwitting violation; defense counsel and the physician are not the proper persons to determine the scope of waiver, so notice to or participation of the privilege holder is the best safeguard; the burden of advance notice is not unduly onerous; and if notice meets a refusal to discuss even waived material, discovery procedures provide a method that gives notice to both the patient and counsel.

Common questions

Q: Can defense counsel interview the plaintiff's treating physician without telling plaintiff's counsel?

A: The committee concluded defense counsel should give prior notice to the plaintiff or plaintiff's counsel in all cases before communicating with the treating physician, even though former Rule 7-103 does not technically forbid the contact because the physician is not a party.

Q: Does talking to the physician violate the no-contact rule?

A: No, not on its terms. The committee found former Rule 7-103 applies only to communications with a party, and the physician is not a party, so the rule does not cover the situation, though that does not mean the conduct is approved (former Rule 1-100).

Q: What may defense counsel and the physician discuss?

A: Only matters as to which the physician-patient privilege has been waived. The committee said a discussion limited to waived material is not improper, but extreme care must be used to avoid any unwaived privileged information.

Background and rules framework

The opinion interprets former California Rules 1-100 (scope), 7-101 (not advising violation of law), and 7-103 (communication with a represented party; embodied in former Rule 12 when the request was received), against Evidence Code sections 992-996 on the physician-patient privilege and its waiver. These concerns are now addressed by Model Rules 4.2 (communication with a represented person) and 4.4 (respect for the rights of third persons) and the California analogs (Rules 4.2 and 4.4).

Citations and references

Rules of Professional Conduct:

• Former California Rules 1-100, 7-101, and 7-103 (former Rule 12)
• Current analogs: Model Rules 4.2 and 4.4 / California Rules 4.2 and 4.4

Statutes:

• California Evidence Code sections 992-996 (physician-patient privilege and waiver)

Cases:

• Roberts v. Superior Court (1973) 9 Cal.3d 330 [107 Cal.Rptr. 309, 508 P.2d 309]
• Rudnik v. Superior Court (1974) 11 Cal.3d 924 [114 Cal.Rptr. 603, 523 P.2d 643]

Other opinions cited:

• Michigan State Bar Ethics Opinions Nos. 68 and 177; Missouri State Bar Ethics Opinion No. 37; Washington State Bar Ethics Opinion No. 115; ABA Committee on Professional Ethics and Grievances Opinion No. 14 (1929)

Other authorities:

• Inter-Professional Code of Professional Ethics (California Medical Association and State Bar of California)

See also

• CA Ethics Op. 1970-22: Conflicts in Joint Criminal Defense

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1975-33.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethical propriety of defense counsel's communication with plaintiff's physician, without consent of plaintiff's counsel, in a pending personal injury action.

In a pending personal injury action, a communication by defense counsel with plaintiff's treating physician, without prior consent of plaintiff's counsel, regarding information in respect to which the physician/patient privilege has been waived, does not constitute a violation of a rule; however, because of the possibility of eliciting information not within the waiver, defense counsel's ethical duty requires that prior notice be given to plaintiff's counsel.

Rules 1-100, 7-101 and 7-103 of the Rules of Professional Conduct of the State Bar.

The subject request for an opinion asks whether the provisions of rule 7-103 of the Rules of Professional Conduct of the State Bar, or any other ethical principles, determine that it is ethically improper for a defense counsel to communicate with the treating physician of the plaintiff without the consent or prior authorization of the plaintiff or his counsel.

For the purposes of this opinion, it is assumed that:

(1) The defense counsel seeks to engage the physician in a discussion of information which, but for a waiver, would be privileged under the rules of privileged communications between the patient and the physician under sections 992-995 of the Evidence Code (i.e., we are only considering privileged information).

(2) An action has been filed so that the privilege has been waived to at least part of the privileged information (with or without the physician's personal knowledge) under Evidence section 996.

(3) The physician may or may not possess additional privileged information as to which there has been no waiver.

It is further recognized that:

(1) To the extent conversations between the physician and the defense counsel deal with matters within the waiver, they would not violate the privilege.

(2) If, however, the conversations deal with unwaived matters, they would violate the privilege.

(3) Both physician and counsel are proscribed from violation of the patient-client's privilege:

(A) The physician has no power to waive the privilege for the patient and, in fact, has a duty to assert the privilege on behalf of the patient whenever the disclosure of privileged communication is sought in his presence. (See Roberts v. Superior Court (1973) 9 Cal.3d 330 [107 Cal. Rptr. 309, 508 P.2d 309]; Rudnik v. Superior Court (1974) 11 Cal.3d 924 [114 Cal. Rptr. 603, 523 P.2d 643].)

(B) Since, as a matter of law, the physician should not violate the privilege, rule 7-101 of the Rules of Professional Conduct may have some application:

"A member of the State Bar shall not advise the violation of any law, rule or ruling of a tribunal unless he believes in good faith that such law, rule or ruling is invalid. A member of the State Bar may take appropriate steps in good faith to test the validity of any law, rule or ruling of a tribunal."

The issue thus is whether all communication should be proscribed as improper since, although proper as to part, it may lead to a violation as to unwaived material. It does not appear that rule 7-103 of the Rules of Professional Conduct covers the issue.

Rule 7-103 provides:

"A member of the State Bar shall not communicate directly or indirectly with a party whom he knows to be represented by counsel upon a subject of controversy, without the express consent of such counsel. This rule shall not apply to communications with a public officer, board, committee or body."

This rule applies only to communications with a party. Since the physician is not a party, the rule does not cover the instant situation. Failure to prohibit conduct, of course, does not necessarily mean such conduct is approved (rule 1-100, Rules Prof. Conduct).

The Inter-Professional Code of Professional Ethics (see State Bar Journal, 751-753 November-December 1973, pp. 694-699) approved by the California Medical Association and the State Bar of California, appears to preclude any consultation without consent, whether the privilege is or is not waived, so far as the physician is concerned. It provides, in part:

"A. Physician may act only on behalf of one party.

"When a physician has consulted with or obtained confidential information from one party in a legal manner, he should not consult with the opposing party as an ethical matter." (Emphasis added.)

This provision would not appear to cover a treating physician but only consultations, and thus is not determinative.

The opinions of the ethics committees of bar associations in other jurisdictions are of interest:

Michigan State Bar Ethics Opinion No. 68 held that the defendant is permitted to interview plaintiff's physician but not to attempt to secure privileged information.

Michigan State Bar Ethics Opinion No. 177 stated it was unethical for lawyers to seek to obtain disclosure of privileged information where the existence of the privilege was questioned.

Missouri State Bar Ethics Opinion No. 37 held that any discussion between the defendant's attorney and the plaintiff's physician is improper.

Washington State Bar Ethics Opinion No. 115 permits discussion where there would be no violation of the physician-patient privilege.

American Bar Association Committee on Professional Ethics and Grievances, Opinion No. 14 (1929) permits discussion where the plaintiff's attorney has supplied the defendant's lawyer with the names and addresses of physicians. (Query if this may be deemed to be implied consent?)

It is the Committee's conclusion that:

(1) A discussion between physician and counsel limited to waived material is not improper.

(2) Extreme care should be used to avoid discussion of any unwaived material.

(3) Because of the danger of invading the improper areas, however, it is our opinion that the defense counsel should notify the plaintiff or plaintiff's counsel in all cases before communicating with plaintiff's treating physician for the following reasons:

(a) The privilege is sufficiently important to require the highest standard and conduct in order to prevent unwitting violation.

(b) The defense counsel and the plaintiff's physician are not the proper persons to determine the existence of waiver. The best safeguard is notice to, or participation of, the patient who is the holder of the privilege, or plaintiff's counsel.

(c) Because of the importance of the privilege's protection, the burden of advance notice is not unduly onerous.

(d) If the advance notice meets with refusal of the physician to discuss even the waived material, discovery procedures permit a method of obtaining the information in a context that provides notice to both the patient and the patient's counsel.