Can a defense lawyer's legal assistant call the opposing party's doctor to ask how medical records will be produced?

Plain-English summary

The inquirer asked whether, in the course of obtaining medical records under RCW 70.02.060, a defense attorney's legal assistant may contact the health care provider by telephone for the limited purpose of finding out whether the provider will mail the requested records or whether a deposition will be needed.

The committee declined to answer the underlying question. It said it does not have authority to opine on whether such contact is or is not permitted under the holding in Loudon v. Mhyre, 110 Wn.2d 675 (1988), a substantive legal question rather than an ethics question. The committee added that if such contact is barred by Loudon, there may be an ethical issue with regard to RPC 4.4.

Currency note

This opinion was issued in 2003, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. RPC 4.4 kept its number in 2006. The opinion turns on the scope of Loudon v. Mhyre, a case decided in 1988; later Washington case law and statutory amendments (including changes to the medical-records statute formerly at RCW 70.02) may bear on the contact question. Treat this page as historical context, not current guidance. Verify against current case law and rules before relying on any specific requirement mentioned here.

In practice

Under this opinion, the committee did not resolve whether the legal assistant's call is permissible: it treated that as governed by Loudon v. Mhyre, a substantive-law question outside its authority. Per the committee, the conditional ethical hook is RPC 4.4, which would come into play only if the contact is barred by Loudon. The opinion gives no independent ethics ruling and identifies no other rule.

Common questions

Q: Did the committee say whether the call is allowed?

A: No. The committee said it does not have authority to opine on whether the contact is permitted under Loudon v. Mhyre, treating that as a substantive legal question rather than an ethics question.

Q: Where would RPC 4.4 come in?

A: The committee said that if such contact is barred by the Loudon case, there may be an ethical issue with regard to RPC 4.4, which addresses a lawyer's use of methods that violate the rights of third persons.

Q: What is the contact the inquirer asked about?

A: A defense attorney's legal assistant telephoning the health care provider, while obtaining records under RCW 70.02.060, for the limited purpose of learning whether the records would be provided by mail or whether a deposition would be needed.

Background and rules framework

The opinion concerns RPC 4.4 (Model Rule 4.4, respect for the rights of third persons), but only conditionally: the committee did not apply the rule, because the threshold question (whether the contact is permitted) is governed by Loudon v. Mhyre, 110 Wn.2d 675 (1988), a Washington Supreme Court decision limiting ex parte contact with an opposing party's treating physician. The committee identified the records-access framework as RCW 70.02.060. Because the dispositive issue is one of substantive law, the committee declined to opine and flagged RPC 4.4 only as a possible consequence if Loudon bars the contact.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.4 / Washington RPC 4.4 (respect for the rights of third persons)

Statutes:

• RCW 70.02.060 (procedure for obtaining health care records)

Cases:

• Loudon v. Mhyre, 110 Wn.2d 675 (Wash. 1988), the decision governing ex parte contact with a party's treating physician

See also

• CBA Formal Op. 71: Ex Parte Contact With Treating Physicians
• Maine Ethics Op. 82: Contacting an Opposing Physician
• CA Op. 1985-85: Ex Parte Contact With a Rehab Consultant

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1276

Original opinion text

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

Advisory Opinion: 2030
Year Issued: 2003
RPC(s): RPC 4.4
Subject: requesting medical records

The inquirer asks whether, in the course of obtaining medical records pursuant to RCW 70.02.060, a defense attorney’s legal assistant can contact the health care provider by telephone for the limited purpose of determining whether the health care provider will be providing the requested medical records by mail or whether a deposition will be needed.

This Committee does not have authority to opine on the question of whether such contact is or is not permitted under the holding in Loudon v. Mhyre, 110 Wn.2d 675 (1988). If such contact is barred by the Louden case, there may be an ethical issue with regard to RPC 4.4.