Can a plaintiff's lawyer interview a defendant hospital's nurses about the facts of a malpractice claim, and does the attorney-client privilege block it?

Currency note

This opinion was adopted in 1985, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 Treat this page as historical context, not current guidance.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.

Plain-English summary

This opinion clarified Formal Ethics Opinions 83-F-46 and 83-F-46(a), which had held that non-management, non-administrative employees of a corporate defendant are witnesses who may be interviewed without the consent of the corporation's attorney under Disciplinary Rule 7-104, while management and administrative employees are treated as adverse parties. The inquiry urged the Board to apply Upjohn Co. v. United States, 101 S. Ct. 677 (1981), which held that the attorney-client privilege is not limited to management or administrative employees but may extend to any corporate employee, to the question whether hospital nurses may be interviewed in a malpractice case.

The opinion explained that 83-F-46 and 83-F-46(a) did not concern the attorney-client privilege. The privilege is embodied in Canon 4 ("A Lawyer Should Preserve the Confidences and Secrets of a Client"), while Disciplinary Rule 7-104 ("Communicating With One of Adverse Interest") sits under Canon 7; the two rest on "entirely different and diverse policy considerations." Quoting Upjohn, the opinion stressed that the privilege "only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney," so a party cannot conceal a fact merely by revealing it to a lawyer.

The opinion approved 83-F-46 and 83-F-46(a) and held that nurses employed by hospitals are individuals who may be interviewed by the plaintiff's attorney, without the consent of the hospital's attorney, on the facts of a medical malpractice claim against the hospital, provided that any communications between the hospital's attorney and the nurses remain subject to the attorney-client privilege.

Common questions

Q: Can a plaintiff's lawyer interview a defendant hospital's nurses about the facts?

A: Yes. The opinion held that "nurses employed by hospitals are individuals who may be interviewed by the plaintiff's attorney without the consent of the attorney for the hospital in a matter involving the facts of a medical malpractice claim against the hospital."

Q: Does the attorney-client privilege (per Upjohn) block those interviews?

A: No. The opinion explained that the privilege and the no-contact rule rest on "entirely different and diverse policy considerations," and that, under Upjohn, the privilege "only protects disclosure of communications; it does not protect disclosure of the underlying facts."

Q: What is still protected?

A: Per the opinion, "any communications between the hospital attorney and nurses are subject to the attorney-client privilege," even though the nurses may be interviewed about the facts.

Background and rules framework

The opinion clarified Disciplinary Rule 7-104 (communicating with a represented party) as applied in 83-F-46 and 83-F-46(a), distinguishing it from the attorney-client privilege embodied in Canon 4 of the Tennessee Code of Professional Responsibility. The modern correlates are Model Rule 4.2 (communication with a person represented by counsel) and Model Rule 1.6 (confidentiality of information), noted here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• DR 7-104 (communicating with a represented party) and Canon 4 (preserving client confidences and secrets), Tennessee Code of Professional Responsibility
• Model Rule 4.2 (communication with a represented person) and Model Rule 1.6 (confidentiality), modern correlates

Cases:

• Upjohn Co. v. United States, 101 S. Ct. 677 (1981), the attorney-client privilege may extend to any corporate employee but protects communications, not underlying facts
• City of Philadelphia v. Westinghouse Electric Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962), the privilege protects communications, not facts
• Diversified Industries, 572 F.2d at 611, the privilege does not shield facts
• State v. Circuit Court, 34 Wis. 2d 559, 150 N.W.2d 387 (1967), a party cannot conceal a fact by revealing it to a lawyer

See also

• Tennessee Op. 83-F-46: Interviewing a Corporate Defendant's Non-Management Employees
• Tennessee Op. 83-F-46(a): Contacting a Bank's Board of Directors
• ABA Formal Op. 95-396: The No-Contact Rule (Rule 4.2)

Source

• Landing page: https://www.tbpr.org/ethic_opinions/83-f-46b

Original opinion text

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

83-F-46(b) - Interviewing Nurses in Case against Hospital

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-46(b)

Inquiry is made for a clarification of Formal Ethics Opinion 83-F-46 and 83-F-46(a) relating to whether nurses employed by hospitals are individuals who may not be interviewed by the plaintiff's attorney in a malpractice claim against the hospital.

The inquiry is sought in order to urge the Ethics Committee and the Board to apply the ruling of Upjohn Co. v. United States, 101 S.Ct. 677 (1981) that attorney-client privilege is not limited to management or administrative level employees but may be extended to any corporate employee.

The attorney-client privilege is embodied in Canon 4 of the Code of Professional Responsibility which provides, "A Lawyer Should Preserve the Confidences and Secrets of a Client." The purpose of the privilege, as noted in the Upjohn case, is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer being fully informed by the client. One of the recognized purposes of the privilege is to encourage clients to make full disclosures to

their attorneys.

The Supreme Court in the Upjohn case stated:

The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney: 'The protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, 'What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.' Citing City of Philadelphia v. Westinghouse Electric Corp., 205 F.Supp. 830, 831 (ED Pa. 1962).

See also Diversified Industries, 572 F.2d at 611; State v. Circuit Court, 34 Wis. 2d 559, 580, 150 N.W.2d 387, 399 (1967) ('the courts have noted that a party cannot conceal a fact merely by revealing it to his lawyer') ....

Formal Ethics Opinions 83-F-46 and 83-F-46(a) did not relate to matters concerning attorney-client privilege. The opinions state that non-management or non-administrative level employees of a corporate defendant are deemed to be witnesses and not parties and that plaintiff's attorney is not prohibited, pursuant to Disciplinary Rule 7-104, from interviewing them without the knowledge or consent of the corporation or its attorney.

Disciplinary Rule 7-104, "Communicating With One of Adverse Interest", is found under Canon 7 of the Code which provides, "A Lawyer Should Represent a Client Zealously Within the Bounds of Law." The rules relating to attorney-client privilege and communicating with one of adverse interest are based upon entirely different and diverse policy considerations.

Formal Ethics Opinions 83-F-46 and 83-F-46(a) are hereby approved. Further, it is the opinion of this committee that nurses employed by hospitals are individuals who may be interviewed by the plaintiff's attorney without the consent of the attorney for the hospital in a matter involving the facts of a medical malpractice claim against the hospital; provided, however, that any communications between the hospital attorney and nurses are subject to the attorney-client privilege.

This 29th day of April , 1985.

ETHICS COMMITTEE:

Edwin C. Townsend, Chairman

W. J. Flippin

Henry H. Hancock

APPROVED AND ADOPTED BY THE BOARD