OF PHYSICIAN'S MEDICAL OPINION ON
                              PHYSICIAN'S LETTERHEAD FOR
                              PHYSICIAN'S SIGNATURE

You have presented a hypothetical situation in which the defense
counsel in a workers' compensation claim proceeding composed a
typed physician's medical report on a hospital's letterhead.  The
medical report thus composed had been sent by facsimile back and
forth between the defense counsel and the hospital emergency room
physician.  The physician, when contacted, conceded that he had
merely signed the medical report, and that the defense counsel,
or someone in his office, had prepared it for the physician's
signature.  The defense counsel filed the report with the
Workers' Compensation Commission and sent a copy to the
claimant's counsel.  Thereafter, the claimant's counsel and the
defense counsel reached a settlement that the Workers'
Compensation Commission approved.

Based on the facts presented, you have asked the committee to
opine whether it was ethically permissible for the defense
counsel to prepare the medical report on the hospital's
letterhead for the physician to sign and then present it as a
part of the evidence for an adjudication of the claimant's claim.

The appropriate and controlling Disciplinary Rules relative to
your inquiry are DR 1-102(A)(4) which prohibits a lawyer from
engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation which reflects adversely on a lawyer's fitness
to practice law; and DRs 7-102(A)(5) through (8) which provide,
respectively, that a lawyer shall not knowingly make a false
statement of law or fact; participate in the creation or
preservation of evidence when he knows or it is obvious that the
evidence is false; counsel or assist his client in conduct that
the lawyer knows to be illegal or fraudulent; or knowingly engage
in other illegal conduct or conduct that is contrary to a
Disciplinary Rule; and DR 7-105(C)(5), which provides that a
lawyer appearing before a tribunal shall not intentionally
violate an established rule of procedure or of evidence where
such conduct is disruptive of the proceedings.

The committee notes that Rule 2B2 of the Workers' Compensation
Commission Rules permits reports of physicians to be admitted in
evidence as testimony by physicians and provides that, upon
timely motion, any party shall have the right to cross-examine
the source of the medical report.  Rule 4:2 requires such medical
reports to be filed immediately with the Commission, with a copy
to opposing counsel.  Rule 2B3 provides that parties shall
specifically designate by author the medical reports to be
received in evidence.

The facts presented omit any statement of whether the defense
counsel, in compliance with Rule 2B3, had made a designation by
author of the medical report to be received in evidence.  The
appearance is that, because of the settlement, the claim had not
progressed to the point of the Rule 2B3 designation with the
Commission.  The meaning of designate by author under Rule 2B3
is, in any case, an issue of interpretation for the Commission
and not the committee.  The committee observes, however, that the
dictionary definition of "author" is "one that originates or
gives existence."  Webster's Ninth New Collegiate Dictionary

On the facts presented, it is significant that the medical report
had been sent back and forth between the defense counsel and the
physician.  It can be inferred that, although the defense counsel
was the scrivener, the physician reviewed the medical report for
accuracy before he signed it as his medical report.  Under those
circumstances, the defense counsel did not dictate the
physician's testimony in the report.  There is no suggestion in
the facts presented that the physician took exception to the
content of the report as an inaccurate or misleading presentation
of his own findings or opinions, nor is there any suggestion that
the physician did not adopt and voluntarily sign the report as
his own.

Lawyers often, if not routinely, prepare writings that others
sign.  A familiar illustration consists of affidavits presented
on summary judgment under Rule 56 of the Federal Rules of Civil
Procedure.  Traditionally, those affidavits are not prepared by
the affiants.  They are prepared by lawyers, in some cases by
lawyers for a party and in other cases, by lawyers for the
affiants themselves.  The practice is ethically permissible as
long as the affidavit honestly captures the affiant's testimony
as opposed to the lawyer "putting words in the affiant's mouth." 
Even though the lawyer composes the affidavit, the content
embodies the testimony of the affiant who knowingly and willingly
executes it.  The form of expression may be that of the lawyer,
but the substantive content is that of the affiant.

To the extent that the form of expression may accentuate
substantive content, examination of the affiant at depositions or
at trial has a leveling effect.  In the situation presented, it
is noted that Va. Code  65.2-703 permits discovery depositions,
and Rule 2B2 permits cross-examination of the source of a medical

Lawyers also commonly prepare the answers to an expert witness
interrogatory under Supreme Court Rule 4:1(b)(4)(A)(i).  In doing
so, lawyers use their own form of expression to present
information derived from the expert.  In turn, the lawyer's
client signs the answers under oath but has not composed them.

The committee is aware of your concern that the lawyer-composed
medical report was on the hospital's letterhead.  There is no
suggestion, however, that the emergency room physician's use of
the hospital's letterhead was unauthorized, or that the lawyer
had reason to believe presenting the medical report on the
letterhead was improper.  There is also no suggestion that the
lawyer misrepresented the medical report as having been written
by the physician personally.  On the facts presented, the lawyer
conceded when asked that his office had composed the medical

The fact of the lawyer's composition, which the physician
reviewed, adopted and signed, is not alone a misrepresentation or
dishonest conduct under DR 1-102(A)(4).  The committee cautions,
however, that the lawyer must be circumspect in his presentation
of the medical report.  It is one thing to write "I enclose the
medical report of Dr. X to be filed."  It is something else,
however, to write "I enclose the medical report that Dr. X
prepared to be filed."  The latter statement would be a
misrepresentation with respect to the fact of preparation.

In sum, the committee is of the opinion that defense counsel's
writing of the medical report for submission to and review,
adoption and signature by the physician does not violate the
Disciplinary Rules.  The applicable ethical constraint is that
the content of the lawyer-composed medical report must honestly
capture the testimony that the physician wishes to present (as
opposed to lawyer-created testimony that the lawyer wishes to
present irrespective of the physician's own testimony) and must
be reviewed, adopted and signed by the physician voluntarily.  In
addition, the lawyer must be alert to the DR 7-103(B) requirement
that, in dealing with an unrepresented person, a lawyer shall not
state or imply that he is disinterested and may have to clarify
his role in the matter to the physician.

Committee Opinion
December 10, 1998