Ethics Opinon 1983-9

I
QUESTION PRESENTED

In a pending medical malpractice action, may the attorney for defendant (Attorney A) consult with Plaintiff's treating physician concerning the medical issue in controversy without first notifying Plaintiff's attorney (Attorney B). The question assumes the treating physician has not been hired as a consultant to Plaintiff and Attorney B, and that a limited waiver of the physician-patient privilege by virtue of the filing of the lawsuit has occurred (Cal. Evid. Code 996).

II
SUMMARY

Although there is no specific disciplinary rule requiring Attorney A to disclose to Attorney B that he is consulting with the physician who treated Attorney B's client on a matter relating to the lawsuit in question, other opinions treating this question have required such disclosure. The Committee is in accord with such opinions and concludes that Attorney A should notify Attorney B, prior to such consultation to minimize chances that the consultation will exceed the scope of the waiver of the physician-patient privilege.

III
DISCUSSION

Rule 7-103 of the Rules of Professional Conduct provides:

"A member of the State Bar shall not communicate directly or indirectly with a party whom he knows to be represented by counsel upon a subject of controversy, without the express consent of such counsel. This rule shall not apply to communications with a public officer, board, committee or body."

This rule applies only to communications with a party. Since the physician is not a party, the rule is inapplicable to the situation at hand. Nor are there other Rules of Professional Conduct which apply. However, this does not necessarily mean such contact would be permissible. Rule 1-100 provides in part:

". . . . The prohibition of certain conduct in these rules is not to be interpreted as an approval of conduct not specifically mentioned."

Thus, further inquiry is merited. State Bar Ethics Opinion Number 1975-33 discusses this very problem and concludes:

"In a pending personal injury action, a communication by defense counsel with plaintiff's treating physician without prior consent of plaintiff's counsel regarding information in respect to which the physician/patient privilege has been waived, does not constitute a violation of a rule; but, because of the possibility of eliciting information not within the waiver, defense counsel's ethical duty requires that prior notice be given to plaintiff's counsel."

The rationale behind this conclusion is set forth in the body of the opinion as follows:

"(3) Because of the danger of invading the improper areas, however, it is our opinion that the defense counsel should notify the plaintiff or plaintiff's counsel in all cases before communicating with plaintiff's treating physician for the following reasons:

"(a) The privilege is sufficiently important to require the highest standard and conduct in order to prevent unwitting violation.

"(b) The defense counsel and the plaintiff's physician are not the proper persons to determine the existence of waiver. The best safeguard is notice to or participation of the patient, who is the holder of the privilege, or plaintiff's counsel.

"(c) Because of the importance of the privilege's protection, the burden of advance notice is not unduly onerous.

"(d) If the advance notice meets with refusal of the physician to discuss even the waived material, discovery procedures permit a method of obtaining the information in a context that provides notice to both the patient and the patient's counsel."

Canon 7 of the Model Code of Professional Responsibility of the ABA provides that a lawyer should represent a client zealously within the bounds of the law. EC 7-38 provides in part:

"A lawyer should be courteous to opposing counsel and should accede to reasonable requests regarding court proceedings, settings, continuances, waiver of procedural formalities, and similar matters which do not prejudice the rights of his client. He should follow local customs of courtesy or practice, unless he gives timely notice to opposing counsel of his intention to do so."

Nothing in Canon 7 or any of the Ethical Considerations imposes any express requirement for disclosure of communications with a non-party. Of course, Attorney A is obligated to not exceed the scope of the waiver in his discussion with the physician. Even though the privilege restricts the actions of the physician, and not Attorney A, an attorney is nevertheless obligated by Canon 7 to refrain from encouraging or participating in violation of the physician-patient privilege.

Although this Committee has no evidence of persistent abuse of the physician-patient privilege by attorneys in Attorney A's situation, there is certainly a potential for abuse inherent in every such contact. The Committee agrees that, on balance, the burden of prior notification is not so restrictive as to warrant its rejection. The Committee is also motivated by the desire to maintain consistency between opinions of the State Bar Ethics Committee and this Committee.

This opinion is advisory only, and is not binding upon the State Bar, the Board of Governors of the State Bar, its agents or employees.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.