Inquiry is made for a clarification of Formal Ethics Opinion
83-F-46 and 83-F-46(a) relating to whether nurses employed by hospitals
are individuals who may not be interviewed by the plaintiff's attorney in a
malpractice claim against the hospital.
The inquiry is sought in order to urge the Ethics Committee and the Board to apply the
ruling of Upjohn Co. v. United States, 101 S.Ct. 677 (1981) that attorney-client privilege
is not limited to management or administrative level employees but may be extended to
any corporate employee.
The attorney-client privilege is embodied in Canon 4 of the Code of Professional
Responsibility which provides, "A Lawyer Should Preserve the Confidences and Secrets
of a Client." The purpose of the privilege, as noted in the Upjohn case, is to encourage
full and frank communication between attorneys and their clients and thereby promote
broader public interests in the observance of law and administration of justice. The
privilege recognizes that sound legal advice or advocacy serves public ends and that such
advice or advocacy depends upon the lawyer being fully informed by the client. One of
the recognized purposes of the privilege is to encourage clients to make full disclosures to
The Supreme Court in the Upjohn case stated:
The privilege only protects disclosure of communications;
it does not protect disclosure of the underlying facts by
those who communicated with the attorney: 'The protection
of the privilege extends only to communications and not to
facts. A fact is one thing and a communication concerning
that fact is an entirely different thing. The client cannot be
compelled to answer the question, 'What did you say or
write to the attorney?' but may not refuse to disclose any
relevant fact within his knowledge merely because he
incorporated a statement of such fact into his
communication to his attorney.'
Citing City of Philadelphia v. Westinghouse Electric Corp.,
205 F.Supp. 830, 831 (ED Pa. 1962).
93-F-46B Page 2
See also Diversified Industries, 572 F.2d at 611; State v.
Circuit Court, 34 Wis. 2d 559, 580, 150 N.W.2d 387, 399
(1967) ('the courts have noted that a party cannot conceal a
fact merely by revealing it to his lawyer') ....
Formal Ethics Opinions 83-F-46 and 83-F-46(a) did not relate to matters concerning
attorney-client privilege. The opinions state that non-management or non-administrative
level employees of a corporate defendant are deemed to be witnesses and not parties and
that plaintiff's attorney is not prohibited, pursuant to Disciplinary Rule 7-104, from
interviewing them without the knowledge or consent of the corporation or its attorney.
Disciplinary Rule 7-104, "Communicating With One of Adverse Interest", is found under
Canon 7 of the Code which provides, "A Lawyer Should Represent a Client Zealously
Within the Bounds of Law." The rules relating to attorney-client privilege and
communicating with one of adverse interest are based upon entirely different and diverse
Formal Ethics Opinions 83-F-46 and 83-F-46(a) are hereby approved. Further, it is the
opinion of this committee that nurses employed by hospitals are individuals who may be
interviewed by the plaintiff's attorney without the consent of the attorney for the hospital
in a matter involving the facts of a medical malpractice claim against the hospital;
provided, however, that any communications between the hospital attorney and nurses are
subject to the attorney-client privilege.
This 29th day of April , 1985.
Edwin C. Townsend, Chairman
W. J. Flippin
Henry H. Hancock
APPROVED AND ADOPTED BY THE BOARD