What May Plaintiff's Attorney Do in Response to an Arons Interview Request?
While not exactly legal malpractice-centric, the question of how plaintiff's and defendant's attorneys prepare for a medical malpractice case does touch on whether either is departing from good and accepted practice of law.
The dispute is easily set forth. Under Arons v. Jutkowitz, 9 NY3d 393 (2007), Defense counsel were permitted private interviews with treating physicians. Plaintiffs were required to provide HIPPA authorizations permitting the interviews.
In Charlap v Khan 2013 NY Slip Op 23349 Decided on October 11, 2013 Supreme Court, Erie County Curran, J. plaintiff's attorney wrote to the doctors in an attempt to mitigate the effects of a private conversation between defense counsel and the physician. Plaintiff's attorney wrote: "I am writing to you regarding a lawsuit that has been commenced on behalf of my late wife, Lisa Charlap, which is listed above. The attorneys for the defendants in this lawsuit have indicated that they intend to contact you, and will attempt to meet with you to discuss the medical treatment you have provided, and perhaps other issues that relate to this lawsuit.
Although I am required to provide these defense lawyers with a written authorization permitting them to contact you, the law does not obligate you in any way to meet with them or talk with them. That decision is entirely yours. If you decide to meet with their lawyers, I would ask that you let me know, because I would like the opportunity to be present or to have my attorneys present."
is this permissible? Is it a departure from good practice for a plaintiff's attorney not to send such a letter?
Supreme Court, in this case, held: "Arons did not establish a common law right to conduct a private interview of a non-party witness. To insist that plaintiff's counsel not request of a witness to be present at defense counsel's interview is to assert that a plaintiff has a duty to forbear from doing so. Arons did not impose any such duty. Further, any insistence that plaintiff's counsel has such a duty is the equivalent of demanding that plaintiff's counsel forebear from representing his or her client with "competence" (Rule 1.1) and "diligence" (Rule 1.3), as required by the Rules. The assertion of one person's legal right in a court of law should be understood in the adversarial process as ordinarily limiting the rights of the adverse party or imposing a duty thereon. Arons did no such thing in merely indicating that an attorney "may" conduct interviews.
For these reasons, this Court concludes that Arons did not create a "right" to conduct private interviews of non-party witnesses.[FN6] The absence of such a "right" does not, however, mean that the process of non-party witnesses being interviewed by attorneys is without boundaries."
"The Court concludes that the letter which is the subject of this motion does not cross the boundaries set by the Rules. The letter does not advise the witness to do anything [*13]improper under the Rules. It does not even express a preference that the witness not meet with the adversary, which in any event would be permissible under Op. 2009-5. Rather, at most, it is a request to be present during an interview, a request which may or may not be honored by the witness. For these reasons, the Court denies the motions but declines to opine at this time as to whether the letter may be used for credibility purposes during cross examination of the plaintiff (see e.g. David B. Harrison, Annotation, Admissibility and Effect, on Issue of Party's Credibility or Merits of His Case, of Evidence of Attempts to Intimidate or Influence Witness in Civil Action, 4 ALR 4th 829). "