LEO: Costs - Medical Records  LE Op. 1060


Costs - Medical Records.


March 31, 1988


You advise that your firm took on a personal injury case from another

attorney a month ago. The proper authorization forms were sent to the

doctor for release of medical records. In return, your office received a

request from the doctor to guarantee payment upon settlement and to pay

him $400 per day if he had to testify in court. Your firm agreed to the

above, but never received the doctor's records. You also advise that the

doctor called your clients and advised them to change attorneys since he

was not going to release records until his fee was paid. Your firm plans

to subpoena the records.


You wish to know whether you must pay the doctor for the records since

your firm will be forced to go to court to secure them.


Disciplinary Rule 5-103(B) [ DR:5-103] states that, "While representing

a client in connection with contemplated or pending litigation, a lawyer

shall not advance or guarantee financial assistance to his client, except

that the lawyer may advance or guarantee the expenses of litigation,

including court costs, expenses of investigation, expenses of medical

examination, and costs of obtaining and presenting evidence, provided the

client remains ultimately liable for such expenses." See also LE Op. 773

and LE Op. 820.


The Committee advises that pursuant to DR:5-103(B), should the doctor

release the records, you may advance the costs of the records provided

your client remains ultimately liable for such expenses. Whether you are

obligated to pay the doctor for the records which you have had subpoenaed

is a legal question beyond the purview of this Committee.


Committee Opinion March 31, 1988




See also LE Op. 1237.