April 4, 1995
You represent a plaintiff in a medical malpractice action. One of the potential witnesses in this matter is plaintiffs present physician. This physician is not your expert witness in this action but you intend to take this physicians deposition.
Defense counsel has requested and obtained all of your clients medical records, including numerous records having nothing to do with the malpractice action.
Plaintiffs present physician is represented by counsel. It recently came to your attention that defense counsel had offered unrestricted access to all of your clients medical records he had obtained in the discovery process to her present physician and his counsel. This offer was done without your knowledge and without any attempt to notify you.
Based upon these facts you have asked this Committee the following question:
Has there been a violation of the South Dakota Rules of Professional Conduct by this offer or the provision of medical records without plaintiffs knowledge to her present physician?
It is the opinion of this Committee that there has been no violation of the South Dakota Rules of Professional Conduct under these facts. There are substantive legal issues involved with the possible ex parte contact between defense counsel and your clients present physician but there does not appear to be any violation of the South Dakota Rules of Professional Conduct.
Michael S. McKnight
Chair, Ethics Committee
State Bar of South Dakota