State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
Ethical propriety of defense counsel's communication with plaintiff's physician, without consent of plaintiff's counsel, in a pending personal injury action.
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; however, 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.
Rules 1-100, 7-101 and 7-103 of the Rules of Professional Conduct of the State Bar.
The subject request for an opinion asks whether the provisions of rule 7-103 of the Rules of Professional Conduct of the State Bar,1 or any other ethical principles, determine that it is ethically improper for a defense counsel to communicate with the treating physician of the plaintiff without the consent or prior authorization of the plaintiff or his counsel.
For the purposes of this opinion, it is assumed that:
(1) The defense counsel seeks to engage the physician in a discussion of information which, but for a waiver, would be privileged under the rules of privileged communications between the patient and the physician under sections 992-995 of the Evidence Code (i.e., we are only considering privileged information).
(2) An action has been filed so that the privilege has been waived to at least part of the privileged information (with or without the physician's personal knowledge) under Evidence section 996.2
(3) The physician may or may not possess additional privileged information as to which there has been no waiver.
It is further recognized that:
(l) To the extent conversations between the physician and the defense counsel deal with matters within the waiver, they would not violate the privilege.
(2) If, however, the conversations deal with unwaived matters ,they would violate the privilege.
(3) Both physician and counsel are proscribed from violation of the patient-client's privilege:
(A) The physician has no power to waive the privilege for the patient and, in fact, has a duty to assert the privilege on behalf of the patient whenever the disclosure of privileged communication is sought in his presence. (See Roberts v. Superior Court (1973) 9 Cal.3d 330 [107 Cal. Rptr. 309, 508 P.2d 309]; Rudnik v. Superior Court (1974) 11 Cal.3d 924 [114 Cal. Rptr. 603, 523 P.2d 643].)
(B) Since, as a matter of law, the physician should not violate the privilege, rule 7-101 of the Rules of Professional Conduct may have some application:
"A member of the State Bar shall not advise the violation of any law, rule or ruling of a tribunal unless he believes in good faith that such law, rule or ruling is invalid. A member of the State Bar may take appropriate steps in good faith to test the validity of any law, rule or ruling of a tribunal."
The issue thus is whether all communication should be proscribed as improper since, although proper as to part, it may lead to a violation as to unwaived material. It does not appear that rule 7-103 of the Rules of Professional Conduct covers the issue.
Rule 7-103 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 does not cover the instant situation. Failure to prohibit conduct, of course, does not necessarily mean such conduct is approved (rule 1-100, Rules Prof. Conduct).
The Inter-Professional Code of Professional Ethics (see State Bar Journal, 751-753 November-December 1973, pp. 694-699) approved by the California Medical Association and the State Bar of California, appears to preclude any consultation without consent, whether the privilege is or is not waived, so far as the physician is concerned. It provides, in part:
"A. Physician may act only on behalf of one party.
"When a physician has consulted with or obtained confidential information from one party in a legal manner, he should not consult with the opposing party as an ethical matter." (Emphasis added.)
This provision would not appear to cover a treating physician but only consultations, and thus is not determinative.
The opinions of the ethics committees of bar associations in other jurisdictions are of interest:
Michigan State Bar Ethics Opinion No. 68 held that the defendant is permitted to interview plaintiff's physician but not to attempt to secure privileged information.
Michigan State Bar Ethics Opinion No. 177 stated it was unethical for lawyers to seek to obtain disclosure of privileged information where the existence of the privilege was questioned.
Missouri State Bar Ethics Opinion No. 37 held that any discussion between the defendant's attorney and the plaintiff's physician is improper.
Washington State Bar Ethics Opinion No. 115 permits discussion where there would be no violation of the physician-patient privilege.
American Bar Association Committee on Professional Ethics and Grievances, Opinion No. 14 (1929) permits discussion where the plaintiff's attorney has supplied the defendant's lawyer with the names and addresses of physicians. (Query if this may be deemed to be implied consent?)
It is the Committee's conclusion that:
(1) A discussion between physician and counsel limited to waived material is not improper.
(2) Extreme care should be used to avoid discussion of any unwaived material.
(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 plaintiffs 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.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 Embodied in former rule 12 of the Rules of Professional Conduct at the time the request was received.
2 Evidence Code section 996. "Exception: Patient-litigant exception. There is no privilege under this article as to a communication relevant to an issue concerning the condition of the patient if such issue has been tendered by:
"(a) The patient;
(b) Any party claiming through or under the patient;
(c) Any party claiming as a beneficiary of the patient through a contract to which the patient is or was a party; or
(d) The plaintiff in an action brought under section 376 or 377 of the Code of Civil Procedure for damages for the injury or death of the patient."