Opinion 2000-5
(May 2000)

The inquirer is trial counsel for an injured plaintiff and raises two questions, presented by the inquirer's intended use at trial of a videotaped deposition of plaintiff's treating physician.

It is our understanding that events occurred in the following sequence:

1. Accident No. 1, plaintiff injured.

2. Plaintiff treated by physician A for injuries from Accident No. 1.

3. Plaintiff deposed in Accident No. 1.

4. Physician A discharges plaintiff from care for Accident No.1.

5. Accident No. 2, plaintiff injured.

6. Plaintiff treated by physician A for injuries from Accident No. 2.

7. Inquirer retained as "trial counsel" for Accident No. 1.

8. Videotaped deposition of physician A, for use at trial of Accident No. 1. At the videotaped deposition, physician A gave what the inquirer says "could be construed as misleading [testimony] . . . the impression created is that the doctor has not seen [plaintiff] since his discharge [from treatment for Accident No. 1] . . . "

9. Inquirer's law firm notifies defense counsel in Accident No. 1 of Accident No. 2 and offers to produce plaintiff for further deposition, and without reference to physician A's treatment of plaintiff for Accident No. 2 injuries, agrees to a re-deposition of treating physician A if defense requests same.

The inquirer raises two questions:

1. Must he make additional disclosure to defense counsel by explicitly stating that the doctor's answer was "incomplete as to subsequent treatment?"

2. Assuming that (without such additional disclosure) defense counsel does not re-depose the doctor, can the inquirer play the videotaped deposition to the court and jury?
 
There are three ethics rules which control resolution of the inquiry:

Rule 1.6(a) - Confidentiality to Client

Rule 3.3 - Candor to Tribunal

Rule 3.4 - Fairness to Opposing Party and Counsel

These three rules impose different duties on lawyers. The determination of proper, ethical conduct in any given instance therefore depends on understanding all of the facts.

Rule 1.6(a) sets forth a paramount duty of confidentiality to the client:

A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in (b) and (c).

The duty to the client of confidentiality is subject to, in certain instances, the duty of candor towards the tribunal. Rule 3.3 provides:

(a) A lawyer shall not knowingly:

1. Make a false statement of material fact or law to a tribunal.

2. Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; --

4. Offer evidence that the lawyer know to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

Finally, Rule 3.4 imposes a duty of "fairness to opposing party and counsel."

A lawyer shall not:

unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value or assist another person to do any such act;

(a) falsify evidence, counsel or assist a witness to testify falsely . . .

The comment to Rule 3.4, while advisory only, supplies a useful discussion of the intent of the provision:

The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedures, and the like.

We believe that an answer to the inquirer's two questions require the following analysis. First, was the physician's testimony "false?" If no, then the duty of confidentiality under Rule 1.6 prohibits disclosure. Thus, if the testimony is, in good faith, considered to be only "ambiguous," no obligation under Rule 3.3 is triggered. The Rule 1.6 mandate of confidentiality would prohibit the inquirer from making any disclosure.

Under the presented facts, the Committee cannot make the determination between "ambiguous" testimony and "false" testimony; the inquirer must do so.

The remainder of this Opinion assumes that the inquirer has determined the physician's testimony was "false." The next question is what, if any, remedial measure, short of re-taking the deposition, would be sufficient ("reasonable")?

Rule 3.3(a)(4), in the first sentence, prohibits offering "false testimony." Thus, the text of Rule 3.3 would appear to prohibit offering at trial a videotaped deposition which imparts "false" information (material or not). Under such a reading, the inquirer would have to re-take the deposition, and ensure that no "false" testimony is left uncorrected on the record. However, the Committee believes such a reading is unduly narrow where effective remedial action can be taken before the trial. However, the remedial measures taken by the inquirer so far are not sufficient. They do not disclose the actuality of the underlying fact, namely that the doctor treated plaintiff for Accident No. 2 after discharging him for Accident No. 1. Such disclosure would be required, assuming of course that the doctor's testimony in that regard is "false," and if either the plaintiff or the defense intends to present the videotaped deposition.

The answers to the posed questions therefore are:

1. If the testimony was "false," then yes - additional substantive disclosure must be made.

2. If the testimony was "false," then no - absent such additional substantive disclosure, the inquirer may not offer the videotape at trial.

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.

 

 

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.