Whatever the language of Rule 506 of the Utah Rules of Evidence means, however, we are not authorized to interpret it. That role is the province of the courts. The requesters also cite to provisions of an interdisciplinary code approved by the Utah Medical Association and the Board of Bar Commissioners, which implies that attorneys should not initiate ex parte contact with physicians. We note that this code is advisory only it has not been adopted by the Utah Supreme Court or any other court, nor enacted as a binding requirement by any body with jurisdiction. It, therefore, cannot serve as the basis for discipline of an attorney or the foundation for an opinion of this Committee.
Public policy prohibits ex parte contact between the defense counsel and the treating physician.
Allowing such contacts could lead the physician to violate the physician-privilege and erode the physician's fiduciary relationship with the patient. Other courts, however, have weighed the physician-patient privilege against the competing policies of facilitating the uncovering of truth, facilitating settlements, conserving judicial resources and decreasing litigation costs and have ruled in favor of allowing ex parte contacts. The Committee does not have authority to decide between the competing public-policy positions at issue here. We can only apply clearly articulated judicial policies and clearly drafted statutes to the Utah Rules of Professional Conduct. Once the Utah courts or the Utah Legislature has spoken definitively, we can follow their lead.