Can a lawyer feed deposition questions to another lawyer to ask a represented opposing party who is testifying as an expert in an unrelated case?

Plain-English summary

Two unrelated medical malpractice cases involve the same medical procedure. Attorney A represents the plaintiff against Dr. Jones, who is represented by Attorney X. In the second case, Dr. Jones has agreed to serve as a defense expert, and Attorney B has scheduled Dr. Jones's deposition. Attorney A wants Attorney B to include questions in that deposition.

On the first set of questions, which ask Dr. Jones to explain or opine generally about the medical procedure without addressing the specific facts of either case, the opinion concludes there is no Rule 4.2 violation. Rule 4.2(a) bars a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented, and a lawyer cannot circumvent the rule by having another person carry out the prohibited communication. But the general questions do not communicate about the subject of the representation in the way the rule forbids, and the opinion notes that lawyers are encouraged to consult with others who handle similar cases, citing Rule 1.1.

On the second set of questions, which would probe the facts and circumstances at issue in Attorney A's own lawsuit against Dr. Jones, the opinion concludes Attorney B may ask them only if Attorney A notifies Attorney X of the date and location of the deposition. Rule 4.2 guards against overreaching, interference with the client-lawyer relationship, and uncounselled disclosure; the opinion concludes those dangers are avoided if Dr. Jones's lawyer is notified and can choose to attend. The duty to give that notice falls on Attorney A, because the potential for unrepresented communication arises in the lawsuit against Dr. Jones.

In practice

Under the North Carolina rule as it stood at the time of the opinion, the analysis turns on whether the deposition questions probe the subject of the represented party's own matter. The opinion holds that general questions about the underlying procedure are permissible without notice, because they do not communicate about the subject of the representation in the prohibited sense.

Per the opinion, once the questions reach the facts at issue in the lawyer's case against the represented party, the lawyer must notify that party's counsel of the deposition so counsel may attend, and that notice duty falls on the lawyer whose lawsuit creates the potential for prohibited contact.

Common questions

Q: Can a lawyer route questions through another lawyer to question a represented opposing party?

A: Not to circumvent Rule 4.2. The opinion states a lawyer may not have another person carry out a communication the lawyer is prohibited from making directly.

Q: Are general questions about the subject matter allowed without notifying opposing counsel?

A: Yes. The opinion concludes that questions asking the witness to explain or opine about the medical procedure, without addressing the specific facts of either case, do not violate Rule 4.2.

Q: What if the questions go to the facts of the lawyer's own case against the witness?

A: Then the lawyer must notify the witness's counsel of the date and location of the deposition before those questions are asked, so counsel may attend.

Q: Who has the duty to give that notice?

A: The opinion places the duty on Attorney A, the plaintiff's lawyer in the action against Dr. Jones, because the potential for prohibited communication arises in that lawsuit.

Background and rules framework

The opinion interprets Rule 4.2(a) (no communication about the subject of the representation with a person known to be represented, absent consent or authorization by law, corresponding to Model Rule 4.2), including the principle that the rule cannot be circumvented through an intermediary. It also references Rule 1.1 (competence, corresponding to Model Rule 1.1) for the point that lawyers are encouraged to consult others who handle similar matters.

Citations and references

Rules of Professional Conduct:

• MR 4.2 / NC Rule 4.2(a) (communication with a represented person; no circumvention through another)
• MR 1.1 / NC Rule 1.1 (competence; consulting lawyers in the same field)

See also

• NC State Bar 2003 FEO 4: Communicating With a Represented Person Through an Agent
• ABA Formal Op. 95-396: Communications With Represented Persons
• ABA Formal Op. 92-362: Contact With Opposing Party Regarding Settlement
• NC State Bar 2011 FEO 15: Communication With Adverse Party to Request Public Records

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2004-formal-ethics-opinion-4/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

Attorney A represents Roe, a plaintiff in a medical malpractice lawsuit against Dr. Jones (Lawsuit #1). Dr. Jones is represented by Attorney X. Attorney B represents Doe, a plaintiff in an entirely different medical malpractice lawsuit against Dr. Smith (Lawsuit #2). Dr. Smith is represented by Attorney Y. The two cases are unrelated and involve different plaintiffs, hospitals, defendants, and venues. Attorney A and Attorney B are also in different law firms. The medical treatment/procedure that is the basis for the malpractice claims is the same in both lawsuits.

At the request of Attorney Y, Dr. Jones agrees to act as an expert witness for the defense in Lawsuit #2. Attorney B schedules Dr. Jones' deposition. Prior to the deposition, Attorney A hears that the defendant in his lawsuit will be testifying as an expert witness in Lawsuit #2. Attorney A asks Attorney B to include a series of questions in the deposition of Dr. Jones. The questions do not relate to the specific facts in either case but rather ask the doctor to explain or opine about the medical treatment/procedure that is at issue. The answers to the questions will be relevant to both lawsuits. Attorney A does however hope that the questions will solicit answers from Dr. Jones that will be helpful to the plaintiff's case against Dr. Jones. Attorney A does not notify Attorney X that he has submitted questions for Dr. Jones to Attorney B.

Is Attorney A violating the prohibition in Rule 4.2 on communications with a represented party?

Opinion #1:

No. Rule 4.2(a) of the Rules of Professional Conduct prohibits a lawyer, during the representation of a client, from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the other lawyer consents or the communication is authorized by law. A lawyer may not circumvent the prohibition in the rule by asking another person to engage in the prohibited communications for him. Nevertheless, lawyers are encouraged to consult with other lawyers who practice in the same field or who handle similar cases in order that they might learn from each other and thereby improve the representation of their clients. See, e.g., Rule 1.1 ("A lawyer shall not handle a legal matter that the lawyer knows of should know he or she is not competent to handle without associating with a lawyer who is competent to handle the matter….).

Inquiry #2:

Attorney A would also like Attorney B to include questions in the deposition that relate to the treatment of Roe and the facts specifically at issue in Lawsuit #1. May Attorney B ask these questions?

Opinion #2:

Yes, provided, however, if the proposed questions will probe the facts and circumstances at issue in Lawsuit #1, Attorney A must notify Attorney X of the date and location of the deposition. Rule 4.2 helps to prevent the dangers of overreaching, interference with the client-lawyer relationship, and uncounselled disclosure of information relating to the representation. In the current inquiry, these dangers can be avoided if Dr. Jones's lawyer is notified of the scheduled deposition of Attorney X's client so that Attorney X may chose to attend the deposition. The duty to provide this notice falls upon Attorney A, the lawyer for the plaintiff in the action against Dr. Jones, because the potential for unrepresented communication arises in that lawsuit.