You have presented a hypothetical situation in which defense
counsel, or a legal assistant at defense counsel's direction,
during the course of a pending personal injury action, contacts ex
parte (by phone or in writing) the plaintiff's treating physician,
without the consent of the plaintiff/patient, to advise the
treating physician that:

     a.  the attorney represents the patient's adversary in
     the lawsuit to which the physician's patient is a party;

     b.  the physician will soon be served with a subpoena
     duces tecum for the patient's medical records;

     c.  the subpoena (which has not yet been issued) will
     request the physician to produce the records at the
     defense attorney's office at a specific date and time;

     d.  if the doctor has any questions, please do not
     hesitate to contact the lawyer or his paralegal at the
     given number.

Under the facts you have presented, you have asked the committee to
opine as to the propriety
of the defense counsel's unauthorized ex parte communication with
his adversary's treating physician, in advance of the physician's
receipt of the subpoena, to the extent that such contacts might
foster or encourage ex parte contact between the physician and
attorney in violation of Virginia Code  8.01-399, as amended and
effective July 1, 1993.  You are also concerned that such
communication might cause the physician to produce the patient's
records before the return date on the subpoena and before the
patient's attorney can file or be heard on a motion to quash the
subpoena, or move the court to require that the records be returned
to the Clerk's Office, pursuant to Va. S. Ct. R. 4:9(c), so that
the patient's attorney may withdraw them for copying.

The pertinent statutory provision is Va. Code  8.01-399 (D) which

     "Neither a lawyer, nor anyone acting on the lawyer's
     behalf, shall obtain, in connection with pending or
     threatened litigation, information from a practitioner of
     any branch of the healing arts without the consent of the
     patient except through discovery pursuant to the Rules of
     the Court as herein provided."

The appropriate and controlling disciplinary rule relative to your
inquiry DR 7-105(C)(5) prohibiting an attorney from intentionally
or habitually violating any established rule of procedure or
evidence, where such conduct is disruptive of the proceedings.

The committee has previously opined in Legal Ethics Opinions Nos.
204, 1042, 1158 and 1235 that the ex parte communication by defense
counsel with the plaintiff's treating physician in order to obtain
factual information as to the patient's treatment, physical
condition, and anticipated future damages is not improper, provided
such communication does not violate the Rules of Court or trial
court rulings regarding discovery.  These prior opinions were
issued well before the 1993 amendment to Va. Code 8.01-399 which
now prohibits an attorney from obtaining nonconsensual ex parte
informal discovery of information from an adversary's treating
physician.  It is the opinion of the committee that Legal Ethics
Opinions 204, 1042, 1158 and 1235 are overruled by this material
change in the law regarding discovery.

Given the cited statute, it is the opinion of the committee that it
would be improper for an attorney to obtain information from an
adverse party's treating physician in violation of  8.01-399(D). 
Such conduct would violate the cited disciplinary rule. See, e.g.,
ABA Formal Opinion 93-78 (November 8, 1993) (lawyers must abide by
statutes prohibiting unauthorized ex parte communications with a
party's treating physician); Harlan v. Lewis, 982 F.2d 1255 (8th
Cir. 1993) (lawyer sanctioned for violating Arkansas law
prohibiting unauthorized ex parte communications between defense
counsel and a nonparty treating physician).

The Committee would observe that under the facts presented it
appears that the ex parte contacts with the plaintiff's physician
initiated by defense counsel or his/her legal assistant were
intended to provide information and as a courtesy rather than to
obtain information from the physician.  It is also not clear that
defense counsel has obtained any information as a result of these
letters.  Whether the communications which are the subject of this
request or any similar contacts between a lawyer (or his staff) and
a practitioner of any branch of the healing arts constitute a
violation of 8.01-399 is a question of law beyond the purview of
the committee. 

[DR 7-105(C)(5); LEOs #204, 1042, 1158, 1235; Virginia Code  8.01-
399(D); Va. S. Ct. R. 4:9(c); ABA Formal Opinion 93-78; Harlan v.
Lewis, 982 F.2d 1255 (8th Cir. 1993)]

Committee Opinion 
April 24, 1995