LEO: Communication with Witness — Expert LE Op. 1235
Communication with Witness — Expert Witness: Defense Attorney Engaging in Ex Parte Communication with Plaintiff's Physician; Engaging Plaintiff's Physician as Defendant's Expert.
May 30, 1989
You have asked the Committee to consider the following four situations, which the Committee will address in the order in which you have presented them in the inquiry.
1. The first situation involves a physician, who has been employed as an expert witness for the plaintiff, who will testify regarding the standard of care and causation in a medical malpractice suit. Under Rule 4:1(b)(4) of the Rules of Virginia Supreme Court, discovery of trial experts shall be by interrogatory only unless the court orders further discovery by other means.
You wish to know whether it is ethically permissible for defense counsel to knowingly sidestep that rule to discover facts known or opinions held by that expert by engaging in an ex parte interview. Your inquiry then raises several variations and inquires as to the ethical implications of each: Defense counsel's motion for leave to depose the plaintiff's expert is denied, but he communicates ex parte with the expert anyway; defense counsel uses devious tactics, such as identifying himself as a friend of the expert in order to attempt to get him on the phone and assuring the expert who questions the ethics of the communication that it is perfectly acceptable; and, finally, defense counsel attempts to educate the plaintiff's expert regarding what is required of him as a witness, what he would be qualified to testify about, and to question the expert's level of support for the plaintiff's case in an attempt to get the expert to rethink his position or change his testimony.
The appropriate and controlling disciplinary rules relative to this inquiry are DR:7-102(A)(8), DR:7-105(B)(5), and DR:1-102(A), which provide that in the representation of a client, a lawyer shall not knowingly engage in illegal conduct or conduct contrary to a disciplinary rule, and in appearing in his professional capacity before a tribunal a lawyer shall not intentionally or habitually violate any established rule of procedure or of evidence, where such conduct is disruptive of the proceedings. Furthermore, a lawyer may be charged with misconduct if he has violated any of the disciplinary rules, or engaged in deliberate wrongful conduct, or conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on a lawyer's fitness to practice law. (See DR:7-102(A)(8), DR:7-105(C)(5) and DR:1-102(A))
Since there are no specific disciplinary rules governing the communications by an attorney with an adverse or expert witness, and since the contacts you describe do not appear to fall under the rubric of formal discovery because they are not communications made under oath, the Committee is of the opinion that the conduct you describe is not per se improper. (See LE Op. 1042) Although the Committee has certain reservations about the conduct you describe as “devious,” it does not believe that it constitutes a violation of the Code of Professional Responsibility. With specific reference to your other variations, the Committee believes that so long as no advice is given to the doctor whose interests may be in conflict with those of the attorney's client, the conduct would not be improper. (See DR:7-103(A)(2))
2. In the second situation, the physician is not only engaged by the plaintiff to testify as an expert witness as above, but also is or was plaintiff's treating physician. You have provided information relative to the physician's ethical requirements to maintain the client's confidentiality and you ask if the defense attorney may engage in ex parte communication with the same expert witness/treating physician if defense counsel does not have authorization from the patient and has neither sought nor obtained leave of court to engage in an ex parte interview.
The Committee is of the belief that the question you raise turns on the physician's, and not the attorney's, ethical responsibilities. Because of that and because of the legal remedies available to the patient if those are breached, the matter is beyond the purview of the Committee.
3. You have further inquired if it is ethical for the defense counsel to have an ex parte communication with a physician who is not an expert retained by the plaintiff but who is the plaintiff's treating physician. If that is proper, may the defense counsel advise the physician that he may choose not to disclose any information which the court does not require him to divulge, or, in the alternative, may he advise the physician what information he is required to disclose? Also, if the contact is ethical, may defense counsel ask the physician questions which exceed the scope of the fact of his treatment of the patient/plaintiff?
The Committee would direct your attention to LE Op. 1042, LE Op. 1076, and LE Op. 1158, in which the Committee previously opined that the ex parte communication by defense counsel with the plaintiff's treating physician or fact witness in order to obtain factual information as to the patient's treatment, physical condition, and the anticipated future damages is totally ethical, providing such communication is not in violation of the Rules of Court regarding discovery. As in the situations posed above, the Committee is of the opinion that the conduct you describe is not improper since the contacts about which you inquire do not appear to be formal discovery because they are not communications made under oath. Furthermore, the circumstances you describe again turn on the physician's, and not the attorney's, ethical responsibilities about which the Committee is unable to opine. The Committee reiterates the caution indicated above in that the attorney may not advise the doctor whose interests may be in conflict with those of the attorney's client, since to do so may violate DR:7-103(A)(2). The Committee is of the opinion, however, that the lawyer may state his own opinion as to the permissibility of the doctor's answering the questions, but should also indicate that the doctor may wish to consult with his own counsel before answering. If the doctor is under no obligation to disclose the information, a lawyer's indicating that the physician is under such compulsion might again be violative of DR:7-103(A)(2). Finally, if in fact the doctor is not required to disclose information to the defense attorney, then to so indicate the converse to the doctor would be improper and violative of DR:1-102.
4. Finally, you have asked if it is ethical for defense counsel to retain plaintiff's treating physician as an expert to provide not only facts about the treatment, but also opinions on the standard of care and causation when such opinions are adverse to the patient's interests in litigation, and when the treating physician is not engaged as an expert for the plaintiff. You inquire if it is not medically ethical for the treating physician to give such an opinion, is it unethical for the attorney to retain the physician for that purpose? Conversely, if it were medically ethical, should the patient/plaintiff and his attorney be advised in advance of the defense counsel's employment of plaintiff's treating physician?
The questions you have raised in this fourth scenario are in some measure questions of both medical ethics and law which are not addressed in the Code of Professional Responsibility and are therefore outside the purview of the Committee. Nevertheless, so far as the attorney's conduct is governed by the Code of Professional Responsibility, subject to the admonitions above regarding DR:7-103(A)(2), the conduct you have described is not per se ethically impermissible. Since the lawyer is not required to convince himself as to the scope of the medical profession's ethics, the matters concerning medical ethics are inapplicable. There is, furthermore, no requirement that the defense attorney advise the patient and his attorney in advance of the employment of the physician, so long as the requirements of the rules of discovery are complied with at the appropriate time as to disclosure of expert witnesses.
Committee Opinion May 30, 1989
See also LE Op. 1389, and LE Op. 1409
LEO: Communication with Witness - Expert, LE Op. 1235 (1989)