In a malpractice case, can a lawyer tell the client's treating physician not to talk to opposing counsel after privacy and privilege bars are lifted?

Plain-English summary

Opinion 360 (published August 2011) responds to a medical malpractice lawyer's inquiry. In the lawyer's case, a court entered a qualified protective order that, together with the privilege waiver that accompanies the litigation, lifted the legal bars on ex parte communications between defense counsel and the plaintiff's treating physician. The lawyer asked whether plaintiff's counsel could ask the treating physician not to have ex parte communications with opposing counsel, and whether counsel could require that any such communications occur only with plaintiff's counsel present.

The opinion concludes the question is governed principally by Rule 3.4(f), which bars a lawyer from requesting a person other than a client to refrain from voluntarily giving relevant information to another party, unless the person is a client's relative, employee, or other agent (and the lawyer reasonably believes that person's interests will not be adversely affected). A treating physician is none of those, so no exception applies, and Rule 3.4(f) prohibits plaintiff's counsel from requesting that the physician decline to speak with defense counsel or condition any communication on plaintiff's counsel being present. The opinion also notes a threshold point under Rule 4.4(a): a lawyer may not use methods of obtaining evidence that violate a third person's legal rights, so defense counsel may not elicit information from the physician that remains privileged or otherwise legally protected (for example, information unrelated to the litigation), even though the absolute bars to disclosure have been removed.

The opinion concludes there are things plaintiff's counsel may do. Counsel may inform the treating physician that the physician has no obligation to speak with opposing counsel and may decline to do so or insist on plaintiff's counsel being present. Counsel may also demand that the physician comply with any confidentiality obligations that have not been removed and may state the client's position about the scope of information that may legally be disclosed.

In practice

Under the D.C. rules as they stood at the time of the opinion, once privacy and privilege bars to ex parte physician contact have been lifted, Rule 3.4(f) prevents a lawyer from asking the client's treating physician to refrain from speaking with opposing counsel or from conditioning communications on the lawyer's presence, because a treating physician is not the client's relative, employee, or agent. The opinion concludes the physician is, for this purpose, like any other non-party witness.

The opinion concludes the lawyer may still inform the physician that there is no obligation to speak with opposing counsel and that the physician may decline or insist on the lawyer's presence, may demand compliance with confidentiality obligations that remain in effect, and may state the client's position on the permissible scope of disclosure. It also notes Rule 4.4(a) independently limits opposing counsel from eliciting still-protected information. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.

Common questions

Q: Can I tell my client's treating physician not to talk to opposing counsel?

A: The opinion concludes no. Once the legal bars to such communication are removed, Rule 3.4(f) prohibits a lawyer from requesting that the physician refrain from speaking with opposing counsel, because the physician is not the client's relative, employee, or agent.

Q: Can I require that the physician only speak to opposing counsel if I am present?

A: The opinion concludes no. Counsel may not request or instruct that communications take place only if the lawyer is present, although the lawyer may inform the physician that the physician is free to insist on counsel being present.

Q: What can I tell the treating physician?

A: The opinion concludes the lawyer may inform the physician that he or she has no obligation to speak with opposing counsel and may decline or insist the lawyer be present, may demand the physician honor any confidentiality obligations still in effect, and may state the client's position on the scope of information that may legally be disclosed.

Q: Do any limits still apply to what opposing counsel can ask the physician?

A: The opinion concludes yes. Under Rule 4.4(a), opposing counsel may not use methods of obtaining evidence that violate the physician's or patient's legal rights, so counsel may not elicit information that remains privileged or otherwise legally protected despite the removal of the absolute bars.

Background and rules framework

The opinion interprets D.C. Rule 3.4(f) (a lawyer shall not request a person other than a client to refrain from voluntarily giving relevant information to another party, subject to the relative/employee/agent exception) and Rule 3.4(a), read with Rule 4.4(a) (respect for the rights of third persons, including legal restrictions on obtaining evidence) and Rule 4.3 (dealing with an unrepresented person). The opinion assumes, but does not opine on, the underlying legal questions about privacy laws (for example, HIPAA) and the physician-patient privilege that determine what the physician may disclose.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 3.4(a), 3.4(f) / Model Rule 3.4 (fairness to opposing party and counsel; requesting a person to withhold information)
• D.C. RPC 4.4(a) / Model Rule 4.4 (respect for rights of third persons)
• D.C. RPC 4.3 / Model Rule 4.3 (dealing with an unrepresented person)

Statutes and regulations:

• 45 C.F.R. 160.103 (HIPAA definition of protected health information)
• D.C. Code 14-307 (physician-patient privilege)

Cases:

• Street v. Hedgepath, 607 A.2d 1238 (D.C. 1992), waiver of the physician-patient privilege by placing physical condition at issue

See also

• CA Op. 1975-33: Defense Contact With Plaintiff's Doctor
• ABA Formal Op. 93-378: Contacting Opposing Experts
• DC Ethics Op. 380: Witness Conflicts of Interest

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-360