OBA Ethics Counsel
Ethics Opinion No. 304
Adopted November 17, 1989
Is it unethical for a lawyer to have ex parte communications with the physician for an adverse party?
The Legal Ethics Committee of the Oklahoma Bar Association was asked whether a lawyer in a personal injury case violates the Oklahoma Rules of Professional Conduct by communicating on an ex parte basis with an opposing litigant's treating physician. The lawyer requesting the opinion suggests that at least an appearance of impropriety results from the potential for abuse, possible coercion resulting from a defense lawyer's representation of a physicians' insurer group, or possible inappropriate disclosures of irrelevant personal information pertaining to the patient. The lawyer has not identified any rule as being directly applicable.
It is not unethical for a lawyer to have an ex parte communication with the physician for an adverse party. While there may be unethical conduct during such a communication, the fact of communication, standing alone, does not constitute a violation of the Rules of Professional Conduct.
The inquiry to the Committee implicates a number of issues such as physician_ patient privilege, the exclusivity or non-exclusivity of statutory discovery methods, medical ethics and rights of privacy. There are, therefore, questions of law rather than ethics alone that are inherent in the broad inquiry presented.
A waiver of privilege results from putting in issue a physical or mental condition; the scope of that waiver is not determinable by reference to the Rules of Professional Conduct. Whether discovery methods are intended to be exclusive or mandatory is determined by legislative intent and judicial construction rather than the ethics rules. See Johnson v. District Court of Oklahoma County, 738 P.2d 151 (Okla. 1987). Broad, undefined issues of constitutional rights and medical ethics that may be involved in a specific case are not resolved by generalized references to the rules.
The Committee does recognize, however, that during a communication between a lawyer and an opposing party's physician, the opportunity for inappropriate conduct may arise and that unethical conduct may, or may not, occur. Nonetheless, the mere prospective possibility of inappropriate conduct, without facts indicating the content of the communication or suggesting any effort to exert improper influence, does not warrant ethical condemnation of all such communications.
The scope of substantive law provisions is to be determined by the courts. Knowing and intentional violations of substantive law may also, however, constitute ethical violations. For example, an attorney who intentionally misstated the facts or law in a pleading or other paper, may be found by the court to have violated 12 O.S. Supp. 1989 § 2011, and such conduct may also be found by disciplinary authorities to constitute an ethical violation. The same may hold true for a particular violation of any statute. However, not every such violation, whether of § 2011 or any other statute, is axiomatically an ethics violation. Questions of statutory violations and ethics violations thus stand on separate footing although the same facts may constitute a violation of both.
Certain rules may apply to the specific circumstances presented by an actual dispute. E.g., Rules 3.4, 4.3, 4.4. and 8.4. Nonetheless, the rules are not intended to be "procedural weapons" or to "augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty." Preamble: A Lawyer's Responsibilities, Oklahoma Rules of Professional Conduct, effective July 1, 1988, by Order of the Oklahoma Supreme Court, March 10, 1988.
Rule 3.4 of the Oklahoma Rules of Professional Conduct serves as a general guide to answer many such questions that arise in an adversarial situation. As the Comment to Rule 3.4 notes, the adversary system contemplates the competitive marshalling of evidence. Regardless of whether a physician-patient relationship is involved in a lawsuit, it is unethical to improperly influence witnesses, or resort to tactics calculated to obstruct or conceal.
If there is conduct designed to improperly influence, then there is an ethical violation. In such an instance, there should be no presumption that a legal duty has been breached. Nor should there be an unwarranted resort to other than the disciplinary process contemplated by the Rules of Professional Conduct. Self-regulation of the legal profession requires that lawyers initiate a disciplinary investigation when they know of a violation of the rules. See Rule 8.3, Reporting Professional Misconduct and Comment.