Can a lawyer informally interview the opposing party's expert witnesses or treating physicians outside the presence of opposing counsel?

Plain-English summary

Opinion E-91-4 responded to a request that the committee reconsider its earlier Formal Opinion E-83-13 on communications with an opposing party's expert witnesses. The committee reaffirmed E-83-13, with caveats, and modified it to account for the Wisconsin Supreme Court's decision in Klieger v. Alby, 125 Wis. 2d 468, 373 N.W.2d 57 (1985). In Klieger, the court addressed whether a defendant's attorney could conduct private pretrial interviews with a plaintiff's treating physician and held that Wisconsin law prohibits it. The committee read the holding as more expansive than the narrow discovery question and treated it as controlling on contacts "with a plaintiff's treating physician."

For ex parte communications with expert witnesses whose communications with a party or a party's counsel would not be protected by a similar legal privilege, the committee reaffirmed E-83-13. It cautioned, however, that a lawyer making such contact should first explain the lawyer's role in the matter and then exercise reasonable care to refrain from seeking privileged information where a privilege applies, quoting its companion Formal Opinion E-91-1. The committee also pointed to SCR 20:4.3, the rule governing a lawyer's dealings with an unrepresented person.

Currency note

This opinion was issued in 1991, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). 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 Treat this page as historical context, not current guidance.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: Could a defendant's lawyer privately interview the plaintiff's treating physician?

A: No. The committee concluded that Klieger v. Alby held Wisconsin law prohibits a defendant's attorney from conducting private pretrial interviews with a plaintiff's treating physician, and modified Formal Opinion E-83-13 accordingly.

Q: Could a lawyer contact an opposing party's other expert witnesses?

A: Yes, with care. For experts whose communications are not protected by a similar legal privilege, the committee reaffirmed E-83-13 but cautioned the lawyer to first explain the lawyer's role and to exercise reasonable care to refrain from seeking privileged information.

Q: What rule governs this kind of contact?

A: The committee pointed to SCR 20:4.3, which addresses a lawyer's dealings with an unrepresented person.

Background and rules framework

The opinion interpreted SCR 20:4.3 / Model Rule 4.3 (dealing with an unrepresented person) in the context of contacting an opposing party's expert witnesses and treating physicians, as limited by the Wisconsin Supreme Court's decision in Klieger v. Alby. It built on the committee's prior Formal Opinions E-83-13 and E-91-1.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:4.3 / Model Rule 4.3 (dealing with an unrepresented person)

Statutes:

• Wis. Stat. sec. 804.01 (discovery scope)

Cases:

• Klieger v. Alby, 125 Wis. 2d 468, 373 N.W.2d 57 (1985), bars private pretrial interviews with a plaintiff's treating physician

Other opinions cited:

• Wisconsin Formal Op. E-83-13 (reaffirmed and modified)
• Wisconsin Formal Op. E-91-1 (caution on seeking privileged information)

See also

• WI Ethics Op. E-93-3: Prosecutor Contact With Defendant
• WI Ethics Op. E-91-6: Government Lawyer Contact Rule
• ABA Formal Op. 472: Communication With Limited-Scope Client

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-91-4.pdf