Legal Ethics Opinion No. 1409

Communication With Witness--Defense Attorney Engaging in Ex Parte
               Communication With Plaintiff's Wife

You have indicated that Attorney represents a Defendant
governmental agency which has been named by a former employee in
a Title VII suit alleging illegal reprisal and race
discrimination.  Plaintiff seeks a remedy based, in part, upon
his inability to work due to the emotional distress/disability
suffered as a result of the alleged discrimination.  You further
advise that, although there is no active divorce action pending,
Plaintiff has been separated from his wife for approximately l7
years, but the separation was not continuous and they
periodically lived together for undetermined periods of time.

You indicate that, although Defendant's Attorney would not
inquire into the content of any privileged communication, he
seeks to engage in ex parte communication with Plaintiff's wife. 
You have requested that the committee opine as to the propriety
of such communication which would be made in order to determine
if Plaintiff has any history of mental illness or factors which
would predispose him to mental illness.

The appropriate and controlling Disciplinary Rules relative to
your inquiry are DR 7-l03(A)(2) which requires that, in the
course of his representation of a client, a lawyer shall not give
advice to a person who is not represented by a lawyer, other than
the advice to secure counsel, if the interests of such person are
or have a reasonable possibility of being in conflict with the
interests of his client; and DR 7-l03(B) which mandates that, in
dealing on behalf of a client with a person who is not
represented by counsel  lawyer shall not state or imply that the
lawyer is disinterested and shall make reasonable efforts to
correct any misunderstanding the person may have as to the
lawyer's role in the matter.

The committee has consistently opined that it is not per se
improper for a defense attorney to make ex parte contact with
plaintiff's fact witnesses without plaintiff's or plaintiff's
counsel's knowledge or permission.  In the case of a plaintiff's
treating physician, where defense counsel sought to obtain
factual information as to the patient's treatment, physical
condition, and anticipated future damages, the committee
suggested that common courtesy would indicate that the
defendant's counsel contact the plaintiff's counsel before
interviewing the physician.  See LEOs #l042, l058.  In addition,
the committee reiterated the admonitions against an attorney
advising the plaintiff's treating physician, whose interests may
be adverse to defense counsel's client, or indicating to the
physician that he is obligated to disclose such information when
in fact he may be or is not under any such obligation.  See LEO
#l235.  Conversely, the committee has earlier opined that when an
individual has been a party to a concurrent or prior action to
the action in question, and has or had prior representation at
that time, it would be improper for an attorney to communicate
with that individual on the subject of that litigation without
either the consent of the prior attorney or authorization by law. 
See LEOs #l28l, l389.

Under the facts you have provided, Plaintiff's estranged wife was
not a party to any prior or simultaneous action and thus was not
represented by counsel who should be contacted for consent. 
Thus, the committee is of the opinion that, although Plaintiff's
estranged wife may be an indirect beneficiary of any remedies
awarded to Plaintiff, she does not enjoy status as a"party" to
the action, as the term is used in DR 7-l03.  See also Banks v.
Rockwell International North American Aircraft Operations, 666
F.Supp. l053, l058 (S.D.Ohio l987).  

Therefore, under the facts you have provided, the committee is of
the opinion that it would not be improper for Defendant's
Attorney to engage in ex parte communication with Plaintiff's
[estranged] wife. 

Committee Opinion
March 12, 1991