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Ethics Opinions from the Bar Association of San Francisco

OPINION 1979-3

An attorney who receives medical reports concerning a client in connection with his representation of the client must, upon request, surrender the reports to the client (or succeeding counsel, but not to a non-attorney representative) even though the attorney believes that knowledge of the contents of the reports may substantially harm the client.

QUESTION:

An attorney who has received medical reports concerning a client in connection with his representation of the client has been asked to surrender custody of the medical reports to the client or to the client's nonattorney representative. The attorney believes the medical reports may substantially harm the client if their contents were known to the client. Must the attorney surrender the report to the client or to the nonattorney representative?

OPINION:

In the opinion of the Committee, the attorney has an ethical duty to surrender the reports after advising the client that the attorney does not consider the surrender of the reports to be in the client's best interest. Before doing so, however, the attorney should also consider whether alternative legal procedures, such as interpleader or declaratory relief, are available.

DISCUSSION:

The confidentiality of medical and other reports is governed in some situations by Welfare and Institutions Code §5328. This opinion applies only to reports that are not covered by statute.

In its opinion 1975-4, this Committee took the position that "Upon withdrawal or discharge of an attorney, there is an ethical duty to release to the client or to a succeeding attorney all papers, documents or other property necessary to continued representation of the client. All deposition transcripts, written opinions of experts, photographs, models, certified copies, and similar documents or materials for which the client has paid or for which the attorney has been reimbursed belong to the client and must be turned over to the client upon his request." That opinion was consistent with rule 2-111(A)(2) of the Rules of Professional Conduct.

In many, if not most, cases the medical reports in an attorney's file will have been paid for by the client as a disbursement for photocopying or for medical examination. They are thus the property of the client, and an attorney has an ethical obligation to release such reports to the client at the client's request. This duty also applies where the attorney continues to represent the client in some capacity.

It is this Committee's view that an attorney has no right to withhold medical reports on the

grounds that they may substantially harm his client. An attorney has no training in the evaluation of the impact of information on a client and generally has no professional expertise from which he can conclude that medical reports may cause substantial harm to the client.

It is the Committee's view that an attorney may advise a client that he does not consider it to be in the client's best interest for the attorney to release such medical reports. However, if, after having received such advice, the client renews his request that the reports be given or the contents disclosed to him or his nonattorney representative, the attorney has an ethical duty to comply.

A difficult problem may arise in the circumstances where medical reports are made available by a physician to an attorney only on a confidential basis, and only on condition that they not be disclosed to the client. It is the opinion of this Committee that an attorney may not accept custody of medical reports subject to such an agreement without the prior written consent of his client. If the client gives such prior written consent, his attorney has no obligation to make the reports available or to disclose their contents to the client or to any nonattorney representative. If the client's consent extends to successor attorneys, the attorney must make the reports available to any successor attorney, subject to the same restrictions.

It is the opinion of the Committee that any attorney who has received medical reports subject to such restrictions without the prior written consent of his client must inform the client and solicit such consent to such a procedure. If the client is not willing to consent, the Committee believes it is the ethical obligation of the attorney to return the reports to their source and to withdraw from the case.

The foregoing opinion assumes that the client at issue has the mental capacity to request the reports or to execute a written consent.

We do not here consider the possibility of using court procedures, such as interpleader, declaratory judgment, or protective orders, to determine whether or not the reports should be turned over to the client. If such procedures are available, it is the opinion of the Committee that the attorney should utilize them. However, whether such procedures are available is not answered by this Committee because that question raises issues of substantive law and procedure, rather than ethical consideration.

All opinions of the Committee are subject to the following disclaimer:
Opinions rendered by the Ethics Committee are an uncompensated service of The Bar Association of San Francisco. Opinions are advisory only, and no liability whatsoever is assumed by the Committee or The Bar Association of San Francisco in rendering such opinions, and the opinions are relied upon at the risk of the user thereof. Opinions of the Committee are not binding in any manner upon the State Bar of California, the Board of Governors, any disciplinary committee, The Bar Association of San Francisco, or the individual members of the Ethics Committee.

In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.

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