Can defense counsel in a personal injury case interview the plaintiff's treating physician about the plaintiff's medical care without going through plaintiff's lawyer?
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This page answers the general question as of 1985. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiry concerned whether defense counsel in a personal injury action could ethically interview the plaintiff's non-defendant treating physician about the medical care and treatment given to the plaintiff. The opinion expressly declined to address any doctor-patient privilege question, limiting itself to the attorney's ethical conduct.
The opinion applied Disciplinary Rule 7-104(A)(1), which prohibits a lawyer from communicating with an adverse party without opposing counsel's prior consent, and Formal Ethics Opinion 83-F-46's holding that DR 7-104(A)(1) does not apply to witnesses, so a lawyer may interview witnesses or prospective witnesses for either side without opposing counsel's prior consent. It also applied Formal Ethics Opinion 82-F-29, which held that disciplinary counsel interviewing a respondent attorney's wife, secretary, clerk, investigator, employee, partner, or associate, or anyone else in a confidential relationship with the respondent, must reveal the thrust of the interrogation, because failing to do so would be deceitful or amount to misrepresentation in violation of Disciplinary Rule 1-102(A)(4). Applying those principles, the opinion concluded there is no impropriety in defense counsel interviewing the plaintiff's non-defendant treating physician about the medical care and treatment given, provided counsel fully discloses the role in requesting the interview and engages in no fraud, deceit, or misrepresentation.
Currency note
This opinion was issued in 1985, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Does the no-contact-with-adverse-party rule stop defense counsel from talking to a plaintiff's treating physician?
A: No. The opinion held the no-contact rule of DR 7-104(A)(1) does not apply to witnesses, and a treating physician interviewed about the plaintiff's medical care and treatment is a witness, not an adverse party.
Q: What must defense counsel do when requesting the interview to keep it proper?
A: Counsel must fully disclose the role in requesting the interview and must not use fraud, deceit, or misrepresentation in conducting it.
Background and rules framework
The opinion applied Disciplinary Rule 7-104(A)(1) (no-contact rule for adverse parties, inapplicable to witnesses) and Disciplinary Rule 1-102(A)(4) (prohibition on conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Code of Professional Responsibility, together with Formal Ethics Opinions 83-F-46 and 82-F-29. The modern correlates are Model Rule 4.3 (dealing with an unrepresented person) and Model Rule 8.4 (misconduct, including dishonesty), cited here as navigational cross-references rather than rules the opinion itself applied.
Citations and references
Other opinions cited:
- Tennessee Formal Ethics Opinion 83-F-46, the no-contact rule does not apply to witnesses
- Tennessee Formal Ethics Opinion 82-F-29, duty to disclose the purpose of an interview with a person in a confidential relationship with the opposing party
See also
Source
- Landing page: https://www.tbpr.org/ethic_opinions/85-f-86
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
85-F-86 - Interviewing non-defendant treating physician
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
FORMAL ETHICS OPINION 85-F-86
Inquiry is made concerning the ethical propriety of defense counsel in a personal injury action interviewing plaintiff's non-defendant treating physician concerning the medical care and treatment given to the plaintiff.
The legal and ethical aspects of doctor-patient privilege, if any exists, are not proper matters to be addressed in this opinion. Therefore, this opinion only deals with the ethical conduct of the attorney.
Disciplinary Rule 7-104(A)(1) of the Code of Professional Responsibility prohibits a lawyer from communicating with an adverse party without the prior consent of opposing counsel. Formal Ethics Opinion 83-F-46 states that DR 7-104(A)(1) does not apply to witnesses. The opinion holds that a lawyer may interview witnesses or prospective witnesses for opposing sides without the prior consent of opposing counsel.
Formal Ethics Opinion 82-F-29 states that it is incumbent on disciplinary counsel to reveal the thrust of his interrogation when interviewing the wife, secretary, clerk, investigator, employee, partner, associate or any person holding a confidential relationship with the respondent attorney. The opinion states that failure to do so would be deceitful or misrepresentative and a violation of Disciplinary Rule 1-102(A)(4).
There is no impropriety in defense counsel interviewing plaintiff's non-defendant treating physician concerning the medical care and treatment given to the plaintiff, provided there is full disclosure of counsel's role in requesting the interview and there is no fraud, deceit or misrepresentation practiced by the attorney.
This 14th day of January, 1985.
ETHICS COMMITTEE:
Charles T. Herndon, III
T. Maxfield Bahner
G. Wilson Horde
APPROVED AND ADOPTED BY THE BOARD
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