Could plaintiff’s counsel speak directly with treating physicians employed by the defendant medical facility?

Plain-English summary

A malpractice plaintiff retained two treating physicians as fact and expert witnesses. Both worked for the defendant medical facility, and one was a vice president. Facility counsel told the plaintiff’s lawyer not to speak with them because they were employees of the represented corporate defendant.

The committee applied DR 7-104(A)(1)'s bar on contact with represented parties. On the stated facts, neither doctor had personal knowledge of the incident underlying the claim or appeared able to bind or speak for the facility about that incident. Their relevant knowledge came from treating the plaintiff, so employment alone did not require the corporation’s lawyer’s consent to discuss that treatment and their expert opinions.

The vice president could be a representative for privilege purposes under Vermont Rule of Evidence 502. The committee therefore limited direct discussions to treatment and expert opinions, excluding privileged communications with corporate counsel or the facility’s control group.

Currency note

This opinion was issued in 1997 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history says the Rules of Professional Conduct replaced the Code and applied to lawyer conduct after September 1, 1999; the court later made comprehensive amendments in 2009. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Did the doctors’ employment alone bar direct contact?

A: No. The committee permitted contact about treatment and expert opinions on the facts presented.

Q: Did the result change because one doctor was a vice president?

A: No as to treatment and expert opinions, but counsel could not seek privileged internal communications involving that officer.

Q: Could counsel ask about communications with the facility’s lawyers?

A: No. The committee said such privileged communications remained protected.

Background and rules framework

The opinion applied DR 7-104(A)(1), discussed ABA Formal Opinion 95-396 and Model Rule 4.2, and distinguished the privilege protections of Vermont Rule of Evidence 502.

Citations and references

Vermont Code of Professional Responsibility:

• DR 7-104(A)(1).

Evidence rule and statute cited:

• Vermont Rule of Evidence 502(A)(2); 12 V.S.A. §1613.

Other opinion cited:

• ABA Formal Opinion 95-396.

See also

• Vermont Ethics Op. 95-17: Contact with employer officers in related claims

Source

• Landing page: VBA topic page
• Original PDF: Vermont Advisory Opinion 97-02
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”