Can a North Carolina lawyer get an opposing party's medical records by telling the custodian they can mail the file instead of attending a noticed deposition?

Plain-English summary

Defense counsel in a personal-injury suit served the plaintiff's treating physicians' records custodians with deposition notices, each with a subpoena duces tecum for the plaintiff's complete medical record. A cover letter told each custodian that "in lieu of attendance at the deposition, a complete copy of the entire file on Plaintiff may be mailed" to defense counsel, listing the documents wanted. Plaintiff's counsel did not know the depositions were scheduled until served with the notices, and the plaintiff had not signed any authorization to release her records. Several custodians mailed the records to defense counsel, who then sent copies to plaintiff's counsel. The committee was asked whether obtaining the records this way was appropriate.

The opinion held that, under RPC 236, it is unethical for a lawyer to mislead the custodian of documentary evidence about the lawyer's authority to require production of documents, citing Rule 8.4(c). A lawyer may obtain medical records in the manner described only if there is an agreement between the lawyers to waive the deposition and allow the custodian to deliver the records directly to the opposing lawyer. The committee pointed to RPC 180 (after a case is called for trial and a physician is subpoenaed as a witness, defense counsel may accept records by mail from the physician) and Rule 45(c) of the North Carolina Rules of Civil Procedure.

Currency note

This opinion was issued in 1999, before North Carolina's adoption of the 2003 revisions to the Rules of Professional Conduct, and it cites the misconduct rule under the numbering then in effect (Rule 8.4(c)), relying on prior opinions RPC 236 and RPC 180 and on Rule 45(c) of the North Carolina Rules of Civil Procedure, which has since been amended. Treat this page as historical context, not current guidance. Verify against current rules and the current discovery statutes before relying on any specific procedure mentioned here.

Common questions

Q: Can a North Carolina lawyer tell a records custodian to just mail the file instead of attending a deposition?

A: Not without agreement. The opinion held a lawyer may not mislead a custodian about the lawyer's authority to compel production, and that mailing in lieu of a deposition is proper only if the lawyers have agreed to waive the deposition.

Q: What rule does misleading a records custodian violate?

A: The opinion held it violates Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation), applying RPC 236, which bars misleading a custodian about the lawyer's authority to require production.

Q: When may a custodian deliver records directly to opposing counsel?

A: The opinion permitted direct delivery in lieu of a deposition only by agreement of the lawyers, and noted the separate situation in RPC 180 where, after a case is called for trial and the physician is subpoenaed, counsel may accept records by mail.

Background and rules framework

The opinion applied North Carolina Rule 8.4(c) (dishonesty and misrepresentation), the analogue to Model Rule 8.4(c), to a lawyer's communications with a non-party records custodian, an interaction also touching the duties owed to unrepresented third parties (Rule 4.4). It relied on RPC 236, RPC 180, and Rule 45(c) of the North Carolina Rules of Civil Procedure for the procedure for obtaining records by subpoena or agreement.

Citations and references

Rules of Professional Conduct:

• MR 8.4 (misconduct; dishonesty) / NC Rule 8.4(c)
• MR 4.4 (respect for rights of third persons) / NC Rule 4.4

Statutes:

• N.C. R. Civ. P. 45(c) (subpoena for production of documentary evidence)

Other opinions cited:

• NC RPC 236: a lawyer may not mislead a custodian about the lawyer's authority to require production
• NC RPC 180: after a case is called for trial and a physician is subpoenaed, counsel may accept records by mail

See also

• NY State Bar Op. 1033: Short-Sale Negotiator Fee and Misrepresentation to the Bank
• ABA Formal Op. 06-439: Truthfulness in Negotiation and Mediation

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/99-formal-ethics-opinion-2/

Original opinion text

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

Inquiry:

Plaintiff sustained severe facial injuries as a result of a single-vehicle automobile accident which occurred while Plaintiff was riding as a guest passenger in Defendant's automobile. The claim was not settled and suit was filed by Plaintiff's counsel, Attorney P.

Attorney D, counsel for Defendant, served the medical records custodians at the offices of Plaintiff's various treating physicians with notices of deposition. Attached to each deposition notice was a subpoena duces tecum requiring each records custodian to produce at the scheduled deposition a complete copy of Plaintiff's medical record. With each notice of deposition and subpoena was a letter from Attorney D advising the recipient that "in lieu of attendance at the deposition, a complete copy of the entire file on Plaintiff may be mailed to Attorney D's offices." The letter contained a list of documents to be mailed to Attorney D. Attorney P was unaware that the depositions were scheduled until he was served with copies of the notices. Plaintiff had not executed an authorization for Attorney D or Defendant to obtain her medical records.

Several of the medical records custodians mailed Attorney D copies of Plaintiff's medical records. Attorney D mailed copies of these medical records to Attorney P.

Is it appropriate for a lawyer to obtain medical records in this manner?

Opinion:

RPC 236 provides that it is unethical for a lawyer to mislead the custodian of documentary evidence as to the lawyer's authority to require the production of documents. See Rule 8.4(c) of the Revised Rules of Professional Conduct. A lawyer may obtain medical records in the manner described in this inquiry only if there is an agreement between the lawyers to waive the deposition and allow the medical records custodian to deliver the medical records directly to the opposing lawyer. See generally RPC 180 (after case is called for trial and physician is subpoenaed as witness, defense counsel may accept medical records in mail from physician) and Rule 45(c) of the North Carolina Rules of Civil Procedure.