Ethics Opinon 1987-3

I
QUESTIONS PRESENTED

When confidential or privileged (medical) records are subpoenaed to court and mistakenly delivered to a party (his attorney's office) rather than directly to the court, pursuant to a subpoena duces tecum (Evidence Code section 1560), may the receiving attorney examine and copy the records?

II
SUMMARY

When records are subpoenaed to court pursuant to a subpoena duces tecum and mistakenly delivered to a party rather than the court, that party has an obligation to return the records to the sender without reading or copying the records. The knowing review by an attorney of any records mistakenly delivered to a party pursuant to a subpoena duces tecum in either criminal or civil proceedings may constitute an invasion of privacy of the subject of the records and may be a violation of the attorney's ethical obligation.

This opinion is not meant to apply to the practice of production of records for deposition in civil proceedings and only applies where the production of records are ordered to the court on the face of the subpoena.

III
DISCUSSION

Evidence Code section 1560 requires that business records subpoenaed to court pursuant to a subpoena duces tecum for use in trial be separately enclosed in a sealed inner envelope or wrapper which is then placed in a sealed outer envelope. Evidence Code section 1560(d) further provides:

"Unless the parties to the proceeding otherwise agree, or unless the sealed envelope or wrapper is returned to the witness who is to appear personally, the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, upon the direction of the judge, officer, body or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at the trial, deposition or hearing."

In a hypothetical case, confidential medical records of an alleged victim are subpoenaed by the defense lawyer in a criminal proceeding pursuant to Evidence Code section 1560. Instead of the records being delivered directly to court, the doctor delivers his records to the defense attorney's office. What is the obligation of the attorney? Can the attorney open the envelope addressed to him, observe the contents are records which had been subpoenaed, make a copy for his file and then send the original confidential medical records to the court (as required by the subpoena duces tecum)?

IV
APPLICABLE LAW

In addition to the safeguards to protect confidentiality provided by Evidence Code section 1560, Evidence Code section 990 et seq. codify the physician-patient privilege. Business and Professions Code section 6068(a) requires a lawyer to support the laws of the State of California. Therefore, a lawyer has an ethical obligation not to knowingly violate other Evidence Code provisions or the physician-patient privilege.

Although the initial means used by the attorney in the hypothetical case, i.e., the subpoena duces tecum, did not violate the rights of the patient, the attorney's review and copying of the confidential medical records would breach the patient's rights. Where a subpoena duces tecum calls for delivery of the records directly to the court, and not to the attorney's office, if an attorney receives and examines the medical records, the patient loses the benefit of any protective orders the court might issue if the documents were forwarded directly to the court by the recipient of the subpoena. For example, the court would first determine to what extent, if any, a bringing of a criminal complaint may have waived the victim's physician-patient privilege. An attorney receiving the record has a duty, on realizing the records are misdirected, to not read the records or copy them and to return them to the sending physician or forward the documents directly to the court.

Use of a subpoena duces tecum to intentionally obtain and review confidential records, without a waiver of the privilege, may be a violation of the law governing physician-patient privilege. (See California State Bar Formal Opinion No. 1975-33 which, to prevent violation of rule 7-101 of the Rules of Professional Conduct advises notification to opposing counsel before an attorney discusses a patient with a physician, even though there is a waiver by a patient filing a personal injury action.)

Finally, the use of a subpoena duces tecum to obtain and review privileged documents may constitute contempt under Code of Civil Procedure section 1209, which provides:

"(a) The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:

. . . .

4. Abuse of the process of proceedings of the court, or falsely pretending to act under authority of an order or process of the court;

5. Disobedience of any lawful judgment, order or process of the court . . . ."

Ethical Obligations

In addition to the general obligation of a member of the State Bar to uphold the laws of the State, codified in Business and Professions Code section 6068(a), the American Bar Association Model Rules of Professional Conduct, to which California authorities have looked for guidance, provides in Rule 4.4 that:

"In representing a client, a lawyer shall not . . . use methods of obtaining evidence that violate the legal rights of a [third] person."

V
CONCLUSION

An attorney who discovers that confidential records subpoenaed directly to the court have erroneously been sent to him by a physician, rather than to the court as required by the subpoena, has a duty to send the subpoenaed records back to the office of the physician. It would also be prudent for the attorney to send a covering letter stating the records were misdirected, have not been read by the attorney, and advising the physician to send them directly to the court in compliance with the language of the subpoena.

Nothing in this opinion is meant to alter the procedure set forth in Code of Civil Procedure section 1985.3 or to interfere with stipulations in civil proceedings to turn over records by the parties.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees, or the San Diego County Bar Association, or its agents, employees, or members.

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.