Can a lawyer contact the opposing party's expert witnesses, including treating physicians, without opposing counsel's permission?

Plain-English summary

Opinion E-83-13 addressed whether an attorney may contact an opposing party's expert witnesses, including treating medical doctors, without the permission of opposing counsel. The committee answered yes.

It stated the general rule that attorneys for one party in a pending cause of action are free to interview the intended witnesses of the other party without the consent or presence of opposing counsel, citing the Annotated Code of Professional Responsibility together with Devlin v. Rosman and Reilley v. Keswani. The committee noted it had followed this rule in Memo Opinion 2/77 and that ABA opinions support it, including ABA Formal Opinion 127 (1935) (proper to contact the physician who attended an opposing witness's decedent), ABA Informal Opinion 892, and a Maine opinion. The committee added that SCR 20.34(3)(i) and 20.43(2)-(3) address contacting witnesses by prohibiting advising or causing a person to secrete himself or leave the jurisdiction to become unavailable, and by proscribing payment of compensation to a witness contingent on the content of testimony or the outcome; neither rule prohibits an attorney from expressing an opinion about the necessity of a witness's testimony. The committee concluded it is clearly permissible to contact an opposing party's expert witness.

Currency note

This opinion was modified by the committee's Formal Opinion E-91-4, which reaffirmed E-83-13 in part but, relying on the Wisconsin Supreme Court's decision in Klieger v. Alby, held that a defendant's attorney may not conduct private pretrial interviews with a plaintiff's treating physician. Read E-83-13 together with E-91-4.

This opinion was issued in 1983, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code (SCR 20.34, 20.43). Contacts with witnesses and unrepresented persons are now addressed by SCR 20:3.4 and 20:4.3 / Model Rules 3.4 and 4.3. Subsequent rule amendments, court decisions, and 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 Treat this page as historical context, not current guidance.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: Could a Wisconsin lawyer interview the other side's expert witness without opposing counsel's consent?

A: Yes, under E-83-13. The committee applied the general rule that a party's attorney may interview the other party's intended witnesses without the consent or presence of opposing counsel.

Q: Does this still apply to a plaintiff's treating physician?

A: Not without qualification. Formal Opinion E-91-4 later modified E-83-13, holding under Klieger v. Alby that a defendant's attorney may not privately interview a plaintiff's treating physician.

Q: Could the lawyer pay the witness for the interview?

A: The opinion noted that SCR 20.43 proscribes paying or offering to pay a witness compensation contingent on the content of the testimony or the outcome of the case.

Background and rules framework

The opinion interpreted the former Code's witness provisions, SCR 20.34(3)(i) and 20.43(2)-(3), which barred causing a witness to become unavailable and barred testimony-contingent witness compensation. These topics now fall under SCR 20:3.4 / Model Rule 3.4 (fairness to opposing party and counsel), with contacts with unrepresented persons under SCR 20:4.3 / Model Rule 4.3.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.34(3)(i), 20.43(2), 20.43(3) / Model Rule 3.4 (witness unavailability; witness compensation) (former Code provisions)

Cases:

• Devlin v. Rosman, 205 So. 2d 346 (Fla. Dist. Ct. App. 1967), interviewing the other party's witnesses
• Reilley v. Keswani, 137 N.J. Super. 553, 350 A.2d 74 (1975), interviewing the other party's witnesses

Other opinions cited:

• Wis. Memo Opinion 2/77: proper to contact an opposing party's expert witness
• ABA Formal Opinion 127 (1935); ABA Informal Opinion 892 (1965): contacting opposing witnesses
• Maine Opinion 73, 13 Me. Bar Bulletin 67 (1979)

See also

• WI Ethics Op. E-91-4: Contact With an Opposing Party's Expert Witness
• WI Ethics Op. E-88-6: Lawyer as Witness on Behalf of a Client

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-83-13.pdf