When defense counsel subpoenas a plaintiff's treating physician and the physician starts discussing the plaintiff's treatment, may the lawyer listen, or must the lawyer stop the conversation?

Plain-English summary

Defense counsel in a personal-injury case subpoenaed the plaintiff's treating physician for trial. The physician then contacted the lawyer to discuss the subpoena and began discussing the plaintiff's medical condition, although the lawyer asked no questions about the treatment. The inquiry asked whether the lawyer could passively listen, or had an affirmative duty to tell the physician he could not take part in communications about the plaintiff's treatment without the plaintiff's consent, beyond arranging the physician's appearance as a witness.

The opinion concluded that the lawyer may not participate, passively or actively, in communications with the plaintiff's nonparty treating physician concerning the physician's treatment of the plaintiff unless the plaintiff consents, because doing so is contrary to public policy and therefore unethical, citing Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990), and RPC 162. The lawyer must affirmatively inform the physician that he may not participate in such communications. On the second inquiry, the opinion concluded that after the case has been called for trial and the physician subpoenaed as a defense witness, the lawyer may accept medical records mailed directly from the physician.

Currency note

This opinion was issued in 1994, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can defense counsel listen if a plaintiff's treating physician volunteers information about the treatment?

A: No. The opinion concluded the lawyer may not participate passively or actively in communications with the plaintiff's nonparty treating physician about the treatment without the plaintiff's consent.

Q: Does the lawyer have to do anything when the physician starts talking?

A: Yes. The opinion held the lawyer must affirmatively inform the physician that he may not participate in such communications.

Q: Can defense counsel still receive the physician's medical records?

A: Yes. The opinion concluded that, after the case is called for trial and the physician is subpoenaed as a defense witness, the lawyer may accept medical records mailed directly from the physician.

Background and rules framework

The opinion did not turn on a numbered Rule of Professional Conduct. It rested on North Carolina case law and public policy governing ex parte contact with a plaintiff's nonparty treating physician, citing Crist v. Moffatt, which barred such contact outside the recognized methods of discovery absent the patient's consent, and treating the State Bar's earlier opinion RPC 162 as consistent.

Citations and references

Cases:

• Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (N.C. 1990), ex parte contact with a plaintiff's nonparty treating physician

Other opinions cited:

• North Carolina RPC 162 (contact with a plaintiff's nonparty treating physician)

See also

• NC Ethics Op. RPC 162: ex parte contact with a plaintiff's treating physician
• NC Ethics Op. RPC 184: contacting the pathologist who performed a decedent's autopsy
• NC Ethics Op. RPC 193: communicating with an uninsured or underinsured defendant

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-180/

Original opinion text

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

Inquiry #1:

Attorney A is defense counsel in a personal injury case. When the case is set for trial, Attorney A subpoenas Plaintiff's treating physician ("Doctor") for trial. Doctor then contacts Attorney A to discuss the subpoena. Although Attorney A asks no questions regarding Plaintiff's medical treatment, Doctor begins to discuss Plaintiff's medical condition with Attorney A. May Attorney A passively listen while Doctor discusses Plaintiff's medical treatment, or does Attorney A have an affirmative duty to inform Doctor that he cannot participate in communications regarding the treatment of Plaintiff without Plaintiff's consent other than to arrange for Doctor's appearance at trial as a witness?

Opinion #1:

Attorney A may not participate, either passively or actively, in communications with Plaintiff's nonparty treating physician concerning the physician's treatment of Plaintiff unless Plaintiff consents. To do so is contrary to public policy and, therefore, unethical. See Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990) and RPC 162. Attorney A must inform Doctor that he may not participate in such communications.

Inquiry #2:

After the case has been called for trial and Doctor has been subpoenaed as a witness for the defense, may Attorney A accept medical records in the mail directly from Doctor?

Opinion #2:

Yes.