May a lawyer in a personal-injury case talk privately (ex parte) with the opposing party's treating physician?

Plain-English summary

The committee was asked whether a lawyer in a personal-injury case violates the Oklahoma Rules of Professional Conduct by communicating ex parte with an opposing litigant's treating physician. The inquiring lawyer pointed to a potential appearance of impropriety, the possibility of coercion through a defense lawyer's representation of a physicians' insurer group, and possible disclosure of irrelevant personal information, but identified no rule directly on point. The committee concluded the communication is not unethical: while unethical conduct may occur during such a communication, the fact of the communication, standing alone, does not violate the Rules.

The committee stressed that the inquiry implicated questions of law rather than ethics, including the physician-patient privilege, the exclusivity or non-exclusivity of statutory discovery methods, medical ethics, and privacy rights. It noted that a waiver of privilege results from putting a physical or mental condition in issue, but the scope of that waiver is not determinable under the Rules, and whether discovery methods are exclusive turns on legislative intent and judicial construction, citing Johnson v. District Court of Oklahoma County. The committee added that knowing and intentional violations of substantive law may also constitute ethical violations, but not every statutory violation is automatically an ethics violation.

The committee identified rules that could apply to specific circumstances (Rules 3.4, 4.3, 4.4, and 8.4) while cautioning that the Rules are not "procedural weapons." It pointed to Rule 3.4 as a general guide: regardless of whether a physician-patient relationship is involved, it is unethical to improperly influence witnesses or use tactics calculated to obstruct or conceal. If conduct is designed to improperly influence, there is an ethical violation, and the committee noted Rule 8.3's requirement that lawyers initiate a disciplinary investigation when they know of a violation.

Currency note

This opinion was issued in 1989 under the Oklahoma Rules of Professional Conduct (effective July 1, 1988), before the later Ethics 2000-based amendments to those Rules. Subsequent rule amendments, court decisions, and statutory changes governing discovery and the physician-patient privilege 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: Is it unethical to contact the other side's doctor without their lawyer present?

A: Not in itself. The committee concluded the bare fact of an ex parte communication with an adverse party's physician does not violate the Rules.

Q: What makes such a contact cross the line?

A: The committee said conduct designed to improperly influence the witness, or tactics calculated to obstruct or conceal, would violate Rule 3.4 and constitute an ethical violation.

Q: Does the opinion decide whether the privilege is waived or discovery is limited?

A: No. The committee treated privilege waiver and the exclusivity of statutory discovery methods as questions of law to be decided by the courts, not by the ethics rules.

Background and rules framework

The opinion interpreted the Oklahoma Rules of Professional Conduct, identifying Rules 3.4 (fairness to opposing party and counsel), 4.3 (dealing with unrepresented persons), 4.4 (respect for the rights of third persons), 8.4 (misconduct), and 8.3 (reporting misconduct) as potentially applicable, and relied on Johnson v. District Court of Oklahoma County, 738 P.2d 151 (Okla. 1987). These correspond to Model Rules 3.4, 4.3, 4.4, 8.4, and 8.3.

Citations and references

Rules of Professional Conduct:

• Oklahoma RPC 3.4 / Model Rule 3.4: fairness to opposing party and counsel; no improper influence of witnesses.
• Oklahoma RPC 4.3 / Model Rule 4.3: dealing with an unrepresented person.
• Oklahoma RPC 8.3 / Model Rule 8.3: reporting professional misconduct.

Statutes:

• 12 O.S. Supp. 1989 § 2011 (misstatements in pleadings or papers).

Cases:

• Johnson v. District Court of Oklahoma County, 738 P.2d 151 (Okla. 1987).

See also

• Okla. Bar Ethics Op. 294: Imputed conflicts within a public defender's office
• Okla. Bar Ethics Op. 301: Donating client files to a historical or educational institution
• Okla. Bar Ethics Op. 306: Contingent fee taken on a client's own med-pay coverage

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-304/

Original opinion text

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

Adopted November 17, 1989

INQUIRY

Is it unethical for a lawyer to have ex parte communications with the physician for an adverse party?

OPINION

The Legal Ethics Committee of the Oklahoma Bar Association was asked whether a lawyer in a personal injury case violates the Oklahoma Rules of Professional Conduct by communicating on anex parte basis with an opposing litigant’s treating physician. The lawyer requesting the opinion suggests that at least an appearance of impropriety results from the potential for abuse, possible coercion resulting from a defense lawyer’s representation of a physicians’ insurer group, or possible inappropriate disclosures of irrelevant personal information pertaining to the patient. The lawyer has not identified any rule as being directly applicable.

It is not unethical for a lawyer to have an ex parte communication with the physician for an adverse party. While there may be unethical conduct during such a communication, the fact of communication, standing alone, does not constitute a violation of the Rules of Professional Conduct.

The inquiry to the Committee implicates a number of issues such as physician_ patient privilege, the exclusivity or non-exclusivity of statutory discovery methods, medical ethics and rights of privacy. There are, therefore, questions of law rather than ethics alone that are inherent in the broad inquiry presented.

A waiver of privilege results from putting in issue a physical or mental condition; the scope of that waiver is not determinable by reference to the Rules of Professional Conduct. Whether discovery methods are intended to be exclusive or mandatory is determined by legislative intent and judicial construction rather than the ethics rules. See Johnson v. District Court of Oklahoma County, 738 P.2d 151 (Okla. 1987). Broad, undefined issues of constitutional rights and medical ethics that may be involved in a specific case are not resolved by generalized references to the rules.

The Committee does recognize, however, that during a communication between a lawyer and an opposing party’s physician, the opportunity for inappropriate conduct may arise and that unethical conduct may, or may not, occur. Nonetheless, the mere prospective possibility of inappropriate conduct, without facts indicating the content of the communication or suggesting any effort to exert improper influence, does not warrant ethical condemnation of all such communications.

The scope of substantive law provisions is to be determined by the courts. Knowing and intentional violations of substantive law may also, however, constitute ethical violations. For example, an attorney who intentionally misstated the facts or law in a pleading or other paper, may be found by the court to have violated 12 O.S. Supp. 1989 § 2011, and such conduct may also be found by disciplinary authorities to constitute an ethical violation. The same may hold true for a particular violation of any statute. However, not every such violation, whether of § 2011 or any other statute, is axiomatically an ethics violation. Questions of statutory violations and ethics violations thus stand on separate footing although the same facts may constitute a violation of both.

Certain rules may apply to the specific circumstances presented by an actual dispute. E.g., Rules 3.4, 4.3, 4.4. and 8.4. Nonetheless, the rules are not intended to be “procedural weapons” or to “augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.” Preamble: A Lawyer’s Responsibilities, Oklahoma Rules of Professional Conduct, effective July 1, 1988, by Order of the Oklahoma Supreme Court, March 10, 1988.

Rule 3.4 of the Oklahoma Rules of Professional Conduct serves as a general guide to answer many such questions that arise in an adversarial situation. As the Comment to Rule 3.4 notes, the adversary system contemplates the competitive marshalling of evidence. Regardless of whether a physician-patient relationship is involved in a lawsuit, it is unethical to improperly influence witnesses, or resort to tactics calculated to obstruct or conceal.

If there is conduct designed to improperly influence, then there is an ethical violation. In such an instance, there should be no presumption that a legal duty has been breached. Nor should there be an unwarranted resort to other than the disciplinary process contemplated by the Rules of Professional Conduct. Self-regulation of the legal profession requires that lawyers initiate a disciplinary investigation when they know of a violation of the rules. See Rule 8.3, Reporting Professional Misconduct and Comment.