Wednesday, August 24, 2011
A new opinion from the District of Columbia Bar Legal Ethics Committee:
The principal question presented is whether a lawyer may ask his or her client’s treating physician not to have ex parte communications with opposing counsel in a medical malpractice case where legal restrictions on such communications based on privacy laws and/or physician-patient privilege have been removed.
Under D.C. Rule 3.4(f), the lawyer may inform his or her client’s treating physician that the treating physician has no obligation to speak with opposing counsel and that the treating physician may decline to speak to opposing counsel without the lawyer also present. To the extent that privacy laws or applicable privileges may restrict the scope of information that the treating physician may disclose, the lawyer may also demand that the physician comply with confidentiality obligations that have not been removed and may state his or her client’s position as to the scope of information that may be legally disclosed. The lawyer may not, however, request or instruct the physician not to have communications with opposing counsel or request or instruct that any communications take place only if the lawyer is present.