Can a defense lawyer contact the plaintiff's treating physician ex parte (without plaintiff's counsel present) when the plaintiff's physical condition is at issue?

Plain-English summary

Opinion 99-03 addressed whether a defense lawyer may make ex parte contact with a plaintiff's treating physician. The Committee concluded that it is neither uncommon nor improper for an attorney to make ex parte contacts with witnesses involved in a controversy, including the adversary's witnesses, and that where the witness-physician is not separately represented by another lawyer in the matter, no provision of the Rules prohibits the defense attorney from contacting the plaintiff's treating physician.

The Committee drew on ABA Formal Opinion 93-378, which held that no provision of the Model Rules directly prohibits ex parte contacts with the other side's witnesses in civil matters. It identified ethical limits that still apply: under Rule 4.3 (dealing with unrepresented persons), the lawyer may not leave the witness in ignorance of the lawyer's relationship to the case, and under Rule 4.1(a) the lawyer may not convey, directly or indirectly, that the witness must speak with the lawyer. As with any witness not under subpoena, the physician may decline to discuss the case, and the opposing party may have asked the physician not to do so (Rule 3.4(f)).

The Committee identified additional prohibited conduct: using an ex parte contact to obtain information protected by the physician-patient privilege would violate Rules 3.4(c), 4.4, and 8.4(d); and it would be improper to persuade the witness not to testify, to circumvent discovery and evidence rules, to ask a non-client to refrain from voluntarily giving relevant information, or to use the contact to embarrass, delay, or burden the doctor. The opinion noted that the mere possibility of misconduct does not justify a blanket prohibition, that a court may limit or condition ex parte contacts, and that the nature and extent of the physician-patient privilege is a matter of legal interpretation outside the Committee's function.

Currency note

This opinion has been withdrawn. The Utah Supreme Court vacated Opinion 99-03 in Sorensen v. Barbuto, 2008 UT 8, 177 P.3d 614, and the Committee formally withdrew it in Opinion 22-05, issued August 11, 2022. Under that line of authority, lawyers must confine contact with an adversary's treating physician to formal discovery. This page is retained for historical research only and is not current guidance.

This opinion was issued in 1999, before the Utah State Bar's adoption of the 2005 revisions to the Rules of Professional Conduct (the Ethics 2000-based amendments approved by the Utah Supreme Court on September 29, 2005). 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: Does any ethics rule forbid contacting the other side's treating physician without opposing counsel present?

A: No. The opinion concluded that where the treating physician is not separately represented, no provision of the Rules of Professional Conduct prohibits a defense attorney from making ex parte contact with the plaintiff's treating physician.

Q: What can the lawyer not do during that ex parte contact?

A: Per the opinion, the lawyer may not mislead the physician about the lawyer's role (Rule 4.3), imply the witness must talk (Rule 4.1(a)), seek privileged information (Rules 3.4(c), 4.4, 8.4(d)), persuade the witness not to testify, or use the contact to embarrass, delay, or burden the doctor.

Q: Can the plaintiff's lawyer tell the treating physician not to talk to the defense?

A: Yes, within limits. The opinion noted that, as with any witness not under subpoena, the opposing party or its lawyer may properly ask the witness not to discuss the case (citing Model Rule 3.4(f)).

Background and rules framework

The opinion interpreted Utah Rule of Professional Conduct 4.3 (dealing with an unrepresented person, Model Rule 4.3) as the principal constraint on witness contacts, together with Rule 4.1 (truthfulness to others, Model Rule 4.1), Rule 3.4 (fairness to opposing party and counsel, Model Rule 3.4), Rule 4.4 (respect for the rights of third persons, Model Rule 4.4), and Rule 8.4(d) (conduct prejudicial to the administration of justice, Model Rule 8.4). The analysis turned on the distinction between the act of contacting an opposing witness, which the Rules permit, and abuses of that contact, which the Rules separately prohibit.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.3 / Utah Rule 4.3 (dealing with an unrepresented person)
• Model Rule 4.1 / Utah Rule 4.1 (truthfulness in statements to others)
• Model Rule 3.4 / Utah Rule 3.4 (fairness to opposing party and counsel)
• Model Rule 4.4 / Utah Rule 4.4 (respect for rights of third persons)
• Model Rule 8.4 / Utah Rule 8.4(d) (conduct prejudicial to the administration of justice)

Cases:

• American Protection Insurance Co. v. MGM Grand Hotel-Las Vegas, 748 F.2d 1293 (9th Cir. 1984), duty not to cause another to reveal client confidences
• State ex rel. Stufflebam v. Appelquist, 694 S.W.2d 882 (Mo. App. 1985), ex parte interviews within proper discovery

Other opinions cited:

• ABA Formal Op. 93-378: no Model Rule directly prohibits ex parte contacts with the other side's witnesses in civil matters

See also

• ABA Formal Op. 91-359: Contact With a Former Employee of an Adverse Party
• Ala Ethics Op. 1994-04: Ex Parte Contact With Employees of an Adverse Party
• Utah Ethics Op. 22-05: Withdrawal of Opinion 99-03 on Ex Parte Contact With a Treating Physician
• Utah Ethics Op. 97-02: Confidentiality of an Accused Client's Information

Source

• Landing page: https://www.utahbar.org/ethics-opinions/1999-03/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/1999-03.pdf

Original opinion text

Reproduced from the official source for research purposes. The two-column PDF has been reassembled into reading order by paragraph; the linked source is authoritative.

Utah Ethics Opinions 1999. 99-03. USB EAOC Opinion No. 99-03

UTAH STATE BAR Ethics Advisory Opinion Committee

Opinion No. 99-03 Approved May 28, 1999

Issue: May a defense lawyer make ex parte contact with plaintiff's treating physician?

Opinion: No ethical rule prohibits ex parte contact with plaintiff's treating physician when plaintiff's physical condition is at issue.

Analysis: It is neither uncommon nor improper, under the Utah Rules of Professional Conduct, for an attorney to make ex parte contacts with witnesses involved in a controversy, including witnesses for the adversary. When that witness is a medical doctor, especially one who has treated the plaintiff in a litigation, concerns may be raised about the physician's and both lawyers' ethical responsibilities to maintain confidences and to abide by other professional responsibilities.

In cases where the witness-physician is not separately represented by another lawyer in the matter, there is no provision of the Rules of Professional Conduct that prohibits a defense attorney from making an ex parte contact with the plaintiff's treating physician.

Although there may be a potential for ethical misconduct arising out of such a contact, such misconduct can be separately addressed and remedied in accordance with the appropriate rules. In an opinion issued in 1993, the American Bar Association held that no provision of the Model Rules of Professional Conduct directly prohibits ex parte contacts with the other side's witnesses in civil matters. The ABA opinion discusses the ethical rules in light of expert witnesses as well as fact witnesses:

There are nonetheless some ethical limitations that apply to contacts with any witness, and some additional limitations that may have different application to expert witnesses. Among the former, the principal limitations are the obligations of candor imposed by Rule 4.3 on dealing with unrepresented persons. When a lawyer contacts any witness, lay or expert, actual or potential, a lawyer must not knowingly leave the witness in ignorance of the lawyer's relationship to the case that gives occasion to the contact. Further, the lawyer may not, consistent with Rule 4.1(a), convey the message, directly or indirectly, that the witness must speak to the lawyer. As with any other witness not under subpoena, an expert witness may choose not to discuss the case with the lawyer. In fact, the opposing party or its lawyer may properly have asked the expert not to discuss the case with the inquiring lawyer. See Model Rule 3.4(f).

The ABA opinion also warns about attempts to induce an opposing witness to reveal confidences:

[B]oth fact witnesses and experts may be in possession of confidences of the opposing party, or work product of that party's lawyer, about which it would be improper to inquire. See American Protection Insurance Co. v. MGM Grand Hotel-at Vegas, 748 F.2d 1293, 1301 (9th Cir. 1984), holding that "A corollary of the attorney's duty not to reveal confidences of a client is the duty not to seek to cause another to do so." (fn1)

Using an ex parte contact to attempt to obtain information protected by the physician-patient privilege would violate Utah Rules of Professional Conduct 3.4(c), 4.4, and 8.4(d). Other considerations arise when the physician's role is to appear as an expert witness; the Committee notes that an expert witness may be privy to opposing counsel's legal theories and thought processes and there may be little information from that physician-expert that would not be protected by the appropriate confidential privileges.

In addition to the concerns raised in ABA Opinion 93-378, it would also be improper for the attorney to attempt to persuade the witness not to testify; (fn2) to disobey or to circumvent the appropriate court rules concerning discovery and evidence; (fn3) to ask a person other than a client to refrain from voluntarily giving relevant information to another party; (fn4) or use the ex parte contact in a way that may tend to embarrass, delay or burden the doctor. (fn5) Overreaching by counsel in the ways discussed above is prohibited by the ethics rules, as is similar improper influence on the part of plaintiff's counsel.

The mere possibility of misconduct by an attorney during an ex parte contact with a physician does not justify a blanket prohibition on such ex parte contacts. Thus, it would not be appropriate to assume that an ex parte interview conducted by either plaintiff or defendant would be outside the bounds of proper discovery. (fn6) An attorney must conform to the rules of the court and particular rules of evidence and discovery in each case. The court may limit or condition ex parte contacts, but as a matter of professional ethics and the existing rules, there is no bar to such ex parte contacts. Many states have come to the same opinion that attorneys for a defendant in a personal injury case have the right to interview plaintiff's treating physician ex parte. (fn7)

The attorneys involved in an ex parte contact of an opposing witness may appropriately be concerned about the extent of a physician-patient privilege. The nature and extent of that privilege is carefully defined in statute, rule and court decision and is, therefore, a matter for legal interpretation. It is not the function of this Committee to offer legal advice regarding the extent of the privilege; in situations where the question is a close one, the matter should be addressed by the parties in concert with the court, applying applicable rules of discovery and evidence.

Footnotes

1. ABA Comm. On Ethics & Prof. Responsibility, Formal Op. 93-378. The opinion also reminds attorneys that Rule 3.4(b) prohibits attorneys from "counsel[ing] or assist[ing] a witness to testify falsely."

2. "A lawyer shall not . . . unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act." Utah Rules of Professional Conduct 3.4(a).

3. "A lawyer shall not . . . knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists." Id. 3.4(c).

4. "A lawyer shall not . . . request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) The person is a relative or other agent of a client; and (2) The lawyer reasonably believes that the person's interests will not be adversely affected from giving such information." Id. 3.4(f).

5. "In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person." Id. 4.4.

6. State ex rel. Stufflebam v. Appelquist, 694 S.W.2d 882 (Mo. App. 1985).

7. See, e.g., Mich. Ethics Op. 60 (Dec. 1980); Mich. Ethics Op. 177 (July 1958); Wash. State Bar Ethics Op. 108 (April 1962); Wash. State Bar Ethics.

Rule Cited: 4.3