Inquiry is made concerning the ethical propriety of defense counsel in a
personal injury action interviewing plaintiff's non-defendant treating
physician concerning the medical care and treatment given to the plaintiff.
The legal and ethical aspects of doctor-patient privilege, if any exists, are not proper
matters to be addressed in this opinion. Therefore, this opinion only deals with the
ethical conduct of the attorney.
Disciplinary Rule 7-104(A)(1) of the Code of Professional Responsibility prohibits a
lawyer from communicating with an adverse party without the prior consent of opposing
counsel. Formal Ethics Opinion 83-F-46 states that DR
7-104(A)(1) does not apply to witnesses. The opinion holds that a lawyer may interview
witnesses or prospective witnesses for opposing sides without the prior consent of
Formal Ethics Opinion 82-F-29 states that it is incumbent on disciplinary counsel to
reveal the thrust of his interrogation when interviewing the wife, secretary, clerk,
investigator, employee, partner, associate or any person holding a confidential
relationship with the respondent attorney. The opinion states that failure to do so would
be deceitful or misrepresentative and a violation of Disciplinary Rule 1-102(A)(4).
There is no impropriety in defense counsel interviewing plaintiff's non-defendant treating
physician concerning the medical care and treatment given to the plaintiff, provided there
is full disclosure of counsel's role in requesting the interview and there is no fraud, deceit
or misrepresentation practiced by the attorney.
This 14th day of January , 1985.
Charles T. Herndon, III
T. Maxfield Bahner
G. Wilson Horde
APPROVED AND ADOPTED BY THE BOARD