Can a defense lawyer in Utah contact a plaintiff's treating physician ex parte, outside formal discovery?

Plain-English summary

Opinion 22-05 addresses the same question as the Committee's 1999 Opinion 99-03: whether a defense attorney may have ex parte communications with a plaintiff's treating medical provider. The 1999 opinion had stated that no ethical rule prohibits ex parte contact with a plaintiff's treating physician when the plaintiff's physical condition is at issue. The Committee now formally withdraws 99-03, explaining that its conclusion no longer reflects Utah law.

The opinion walks through the controlling case law. In Sorensen v. Barbuto (2008), the Utah Supreme Court held that a physician who engages in ex parte communications with an attorney adverse to the physician's patient violates the physician's fiduciary duty of confidentiality, and the Court expressly vacated Opinion 99-03, instructing lawyers to confine their contact with an adversary's treating physician or therapist to formal discovery. In Wilson v. IHC Hospitals (2012), the Court reaffirmed that holding (allowing ex parte contact only with treating physicians who were employees of a defendant being held vicariously liable) and confirmed that violations may be sanctioned. In Lee v. Williams (2018), the Court of Appeals clarified that the prohibition reaches any ex parte communication related to the merits or substance of the patient's case, not only communications about the patient's healthcare.

Because the Committee saw a clear conflict between 99-03 and these decisions, and because Rule 11-522 permits the Committee to withdraw prior opinions, the opinion withdraws Advisory Opinion 99-03. The opinion notes that lawyers may still obtain relevant medical information from a treating physician through traditional formal discovery.

In practice

The opinion holds that, under current Utah law as set out in Sorensen, Wilson, and Lee, a defense lawyer must confine contact with an adverse party's treating physician to formal discovery, and that ex parte communication related to the merits or substance of the patient's case violates that rule even if confidential medical details are not actually discussed. Per the opinion, the Committee's earlier contrary guidance in 99-03 is withdrawn and should not be relied upon.

Common questions

Q: Does Opinion 99-03 still allow ex parte contact with a plaintiff's treating physician?

A: No. The opinion formally withdraws 99-03 and explains that the Utah Supreme Court vacated it in Sorensen v. Barbuto.

Q: How may a defense lawyer obtain information from the plaintiff's treating physician?

A: Through formal discovery. The opinion notes the Sorensen court did not foreclose obtaining relevant medical information from a treating physician through traditional forms of formal discovery.

Q: Does the prohibition apply only to conversations about the patient's medical care?

A: No. The opinion explains that Lee v. Williams extended the bar to any ex parte communication related to the merits or substance of the plaintiff's case, while incidental contact (such as scheduling a deposition or small talk) does not violate the rule.

Background and rules framework

This opinion is a withdrawal of a prior advisory opinion rather than an interpretation of a specific Rule of Professional Conduct. Its substantive content rests on Utah appellate decisions (Sorensen v. Barbuto, Wilson v. IHC Hospitals, and Lee v. Williams) governing ex parte contact with a litigation adversary's treating medical providers. The Committee acted under Rule 11-522 of the Utah Rules governing its procedures, which permits the Committee to withdraw prior opinions.

Citations and references

Cases:

• Sorensen v. Barbuto, 2008 UT 8, 177 P.3d 614, physician's ex parte contact with adverse counsel breaches fiduciary duty; vacating Op. 99-03
• Wilson v. IHC Hospitals, Inc., 2012 UT 43, 289 P.3d 369, reaffirming Sorensen; employee-physician exception; sanctions
• Lee v. Williams, 2018 UT App 54, 420 P.3d 88, bar extends to any ex parte communication touching the merits

Other opinions cited:

• Utah Ethics Advisory Op. 99-03 (1999): withdrawn by this opinion

See also

• Utah Ethics Op. 22-06: Coaching a Client During a Call With a Represented Person

Source

• Landing page: https://www.utahbar.org/ethics-opinions/2022-05/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/2022-05-Withdrawing-99-03.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor errors may remain; the linked PDF is authoritative.

Ethics Advisory Opinion Committee

Ethics Opinion 22-05

Issued August 11, 2022

Withdraws Adv. Op. 99-03

ISSUE

1. May a defense attorney engage in ex parte communications with a plaintiff's treating medical provider? This is the identical question addressed in Adv. Op. 99-03.

OPINION

2. Issued in 1999, Adv. Op. 99-03 stated "[n]o ethical rule prohibits ex parte contact with plaintiff's treating physician when plaintiff's physical condition is at issue." In the case of Sorensen v. Barbuto, 2008 UT 8, ¶ 25, 177 P.3d 614, 621, the Utah Supreme Court expressly vacated this Opinion, however Adv. Op. 99-03 remains in the published opinion of the Ethics Advisory Opinion Committee (the "Committee"). The Committee now formally withdraws Adv. Op. 99-03.

BACKGROUND

3. In 2008, and in the case of Sorensen v. Barbuto, the Utah Supreme Court determined that a physician who has ex parte communications with an attorney adverse to that physician's patient is a violation of a physician's fiduciary duty of confidentiality. The Court went further and expressly vacated Adv. Op. 99-03 and instructed lawyers to confine their contact and communications with a "physician or therapist" who treated their adversary to formal discovery methods. The Court re-affirmed its holding on the matter in the 2012 case of Wilson v. IHC Hospitals, Inc., provided additional guidance on this issue, and concluded that an attorney who violated this prohibition would be subject to sanctions. Finally, in the 2018 case of Lee v. Williams, the Utah Court of Appeals clarified that the admonition against opposing counsel, or their offices, from engaging in ex parte communications applied, not only to the topic of a patient's healthcare, but also to any topic related to the merits or substance of the patient's case.

ANALYSIS

4. The 1999 Adv. Op. 99-03 stated "[n]o ethical rule prohibits ex parte contact with plaintiff's treating physician when plaintiff's physical condition is at issue."

5. Notwithstanding the existence and language of Adv. Op. 99-03, Sorensen v. Barbuto, 2008 UT 8, ¶ 25, 177 P.3d 614, 621 held that a physician violates his or her fiduciary duty of confidentiality to a patient by engaging in ex parte communications with an opposing attorney regarding that patient's healthcare. The physician in question who participated in the ex parte communication argued that he should be immune from liability because, as to attorneys at least, ex parte communications of the type were expressly permitted under Adv. Op. 99-03. See id. at ¶ 26. The Sorensen court recognized the clear incongruity between its holding and the language of the advisory opinion and stated: "Because it would be illogical to permit attorneys to lead physicians into breaching their duty of confidentiality, we vacate Utah State Bar Ethics Advisory Opinion Committee Opinion 99-03 and instruct lawyers to confine their contact and communications with a physician or therapist who treated their adversary to formal discovery methods." Id. The Court did not foreclose opposing counsel "from obtaining relevant medical information from a treating physician […] through traditional forms of formal discovery." Id. at ¶ 24.

6. The issue came up again in the case of Wilson v. IHC Hosps., Inc., 2012 UT 43, 289 P.3d 369, and the Utah Supreme Court re-affirmed its position. In Wilson, attorneys for the hospital met ex parte with three treating physicians who were all employed by IHC (a defendant in the case), and with a fourth treating physician who was not an IHC employee. Applying its Sorensen analysis, the Court determined that the ex parte communication with the non-employed physician was improper, but that the communications between IHC counsel and the three employed treating physicians were proper because the plaintiff was seeking to hold IHC vicariously liable for those three physicians' tortious acts. See id. at ¶¶ 8. This case also confirmed that an attorney's violation of the Sorensen prohibition would subject the attorney to possible sanctions as may be imposed by the trial judge.

7. Finally, in the case of Lee v. Williams, 2018 UT App 54, 420 P.3d 88, the Court dealt with the issue of a defense attorney holding an ex parte discussion with a nurse who provided medical treatment to the patient. Id. at ¶ 62. A hotly disputed issue was whether the treating doctor did or did not inform the patient about a medical injury which occurred during the doctor's management of the patient's pregnancy, and which might impact the mother's future pregnancies. Id. at ¶ 64. The issue of the patient's doctor's treatment habits was therefore an important issue in the case, and evidence suggested that the defense attorney and the nurse, despite allegedly not directly discussing the patient's healthcare, did discuss that doctor's habits. Id. Dismissing the defense counsel's argument to the contrary, the Court clarified that the prohibition first articulated in Sorensen, applied to ex parte discussions relating to both the patient's healthcare and the substance or merits of the patient's case saying:

Accordingly, we conclude that any ex parte communication between a defense attorney and a plaintiff's treating physician that is related to the merits or substance of the plaintiff's case in any respect violates the rule set forth in Sorensen, regardless of whether the confidential details of the patient's care are in fact discussed and regardless of whether actual prejudice results.

Id. at ¶ 67. Nonetheless, the Court conceded that conversations between a defense counsel and a treating provider about neither topic but simply about items such as "setting a date for scheduling a deposition, or a friendly conversation in a grocery store about the weather or the local football team's fortunes," would not violate the Sorensen prohibition. Id. at ¶ 66.

APPLICATION

8. Rule 11-522 permits the Committee to withdraw prior opinions.

9. Based on the above analysis and the guidance provided in Sorensen, Wilson, and Lee, the Committee sees a clear conflict in its prior opinion as articulated in 99-03 and therefore a withdrawal of opinion 99-03 is required.

10. These appellate decisions clearly articulate rules and guidance regarding ex parte communications between defense attorneys and an adverse patient's treating medical providers and the limits on those types of communications. This opinion therefore withdraws Advisory Op. No. 99-03.