Attorney as Witness
When the attorney acts as an administrator, the activities are neither attorney work product nor attorney–client communications. For example, assume that one of the duties of the attorney is to act as an intermediary between the patient and the physician, attempting to defuse the situation and prevent litigation. As part of this process, the attorney prepares a report for the hospital’s medical staff committee. This report would not be an attorney–client communication because neither the patient nor the physician is a client. It would also not be attorney work product because the attorney would be acting as an administrator.
The most serious problem for the administrator/ attorney arises in the inadvertent witnessing of an adverse incident. Just as the spouse who witnesses the fraud must testify, an attorney who becomes a fact witness cannot avoid testifying in a lawsuit. This can occur by observing a negligent act or by participating in a negligently conducted review process. The attorney may advise a review committee on the due process aspects of its work; but if the attorney takes part in the review process, the attorney may not protect communications from patients, physicians, and other nonclients, if they are not otherwise protected. In the same way, an attorney who routinely inspects equipment such as anesthesia machines could be called as a witness to the condition of the equipment.
The problem of too many administrative levels between the attorney and the person generating the sensitive information usually involves a nonattorney administrator who decides what information is passed on to the attorney. This is often a nonattorney “risk manager” who sends only “important” incident reports to the attorney. The problem is that the incident reports not sent to the attorney will be discoverable. The attorney cannot delegate legal decision making to the risk manager, nor can work involving the judgment of the risk manager be considered attorney work product.