If a witness hired by a party makes ex parte contact with the opposing side's treating physician, does that violate the rules, and does Loudon v. Mhyre reach the agency?

Plain-English summary

The inquiry concerned an interpretation of Loudon v. Mhyre, 110 Wn.2d 675, and presented two issues. The first was whether that case applies to the Department of Labor & Industries. The committee was of the opinion that this is a legal question on which it can render no opinion.

The second issue was whether a witness hired by the Department violated the rules by having ex parte contact with a treating physician. The committee was of the opinion that if that witness were an agent of the attorney representing the Department, it would constitute conduct in violation of RPC 8.4(a), but the committee could render no opinion on the facts as presented.

Currency note

This opinion was issued in 1989, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Can a party use a hired witness to make ex parte contact with the other side's treating physician?

A: Under this 1989 opinion, if the witness is an agent of the party's attorney, the committee was of the opinion that the contact would violate RPC 8.4(a). It could not resolve the question on the facts presented.

Q: Why does the witness being the attorney's "agent" matter?

A: RPC 8.4(a) makes it misconduct for a lawyer to violate the rules through the acts of another. The committee tied the violation to the witness acting as the attorney's agent.

Q: Did the committee decide whether Loudon v. Mhyre applies to the agency?

A: No. It treated whether the case applies to the Department of Labor & Industries as a legal question on which it could render no opinion.

Background and rules framework

RPC 8.4(a), Washington's version of ABA Model Rule 8.4(a), makes it professional misconduct to violate the rules through the acts of another. RPC 4.2 is the no-contact rule. The committee framed the ex parte contact with a treating physician as potentially attributable to the Department's attorney under RPC 8.4(a) if the witness acted as the attorney's agent, while declining the underlying legal question about Loudon v. Mhyre's reach.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 8.4 (misconduct; violating the rules through the acts of another)
• ABA Model Rule 4.2 (communication with represented person)
• Washington RPC 8.4(a) and RPC 4.2

Cases:

• Loudon v. Mhyre, 110 Wn.2d 675 (1988), ex parte contact with a plaintiff's treating physician

See also

• WA Ethics Op. 1307: Adverse Party Contacts You Directly
• WA Ethics Op. 1317: Missing a Hearing and Contact With the Party

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=409

Original opinion text

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

The Committee reviewed your inquiry concerning an interpretation of Loudon v. Mhyre, 110 Wn.2d 675. Your inquiry concerned two issues, the first being whether that case applies to the Department of Labor & Industries. The Committee was of the opinion that that constitutes a legal question on which the Committee can render no opinion.

Your second inquiry concerned whether the actions of a witness hired by the Department in having ex parte contact with a treating physician violated the rules. The Committee was of the opinion that if that witness were an agent of the attorney representing the Department, then it would constitute conduct in violation of RPC 8.4(a), but could render no opinion on the facts as presented.