Zaug v. Virginia State Bar

• Court: Supreme Court of Virginia
• Decided: February 28, 2013
• Docket: 121656
• Status: Published

Opinion

PRESENT: All the Justices

HEATHER ELLISON ZAUG OPINION BY v. Record No. 121656 JUSTICE WILLIAM C. MIMS February 28, 2013 VIRGINIA STATE BAR, EX REL. FIFTH DISTRICT - SECTION III COMMITTEE

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Lon Edward Farris, James F. Almand, and John J. McGrath, Jr., Judges Designate

In this appeal of right from a judgment entered by a

three-judge circuit court in a disciplinary hearing, we

consider whether an attorney violated Rule 4.2 of the Virginia

Rules of Professional Conduct.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Heather Ellison Zaug is an attorney licensed to practice

law in the Commonwealth of Virginia and admitted to the Bar of

this Court. In April 2010, Zaug and Richard L. Nagle, her

partner, represented a doctor in a medical malpractice action

brought by Ian, Yanira, and Vincent W. Copcutt. The Copcutts

were represented by Judith M. Cofield.

On April 15, Yanira Copcutt (“Yanira”) telephoned the

firm’s office to speak with Nagle. He could not take the call

because he was on his way to depose Vincent Copcutt

(“Vincent”). A staff member transferred the call to Zaug.

Zaug admits that she knew the call concerned Vincent’s deposition but she denies knowing who the caller was when she

answered. There is no recording or transcript of the call.

The parties agree that Yanira was distraught. According

to Zaug, the call lasted approximately 60 seconds. It is

undisputed that Yanira told Zaug about the toll the litigation

was taking on her family and that Vincent’s deposition needed

to be cancelled. According to Zaug, she apologized and told

Yanira that she could not help her and that Yanira needed to

contact Cofield.

According to Zaug, she then attempted to terminate the

call but Yanira resisted “with an outpouring of emotion.”

Yanira said that she had been unable to reach Cofield and that

she wanted to speak to Nagle. Zaug reiterated that “[w]e can’t

help you. You need to try to reach Ms. Cofield. I’ll try to

contact Mr. Nagle and they’ll have to sort this out.” She then

terminated the call.

Another attorney at the firm witnessed part of the call.

The witness testified that it lasted about 30 seconds from the

time Zaug realized who the caller was and corroborated her

recollection of her side of the conversation from that point

forward.

According to Yanira, Zaug addressed her by name when she

answered the call, saying, “Hi, Mrs. Copcutt.” Yanira told

Zaug that Vincent’s deposition needed to be cancelled. When

2 Zaug asked what was wrong with the deposition, Yanira started

crying, rambling, and describing the emotional difficulties

associated with the injury caused by Zaug’s client’s alleged

malpractice. Further, Yanira told Zaug that she wanted to

dismiss the lawsuit. 1

After Vincent’s deposition, Yanira told Cofield about her

conversation with Zaug. Cofield thereafter filed a complaint

with the Virginia State Bar (“the State Bar”) in which she set

forth Yanira’s account of the conversation. The State Bar

issued a charge of misconduct alleging that Zaug had violated

Rule 4.2 of the Virginia Rules of Professional Conduct.

The charge of misconduct was heard by the Fifth District

Section III Committee pursuant to Paragraph 13-16 of Part 6,

Section IV of the Rules of this Court. After a hearing, the

district committee issued a determination that Zaug’s conduct

constituted a violation of the Rule. The district committee

imposed the sanction of a dismissal de minimis.

Zaug appealed the district committee’s determination to

the circuit court pursuant to Paragraph 13-17(A) of Part 6,

1 Yanira testified at a hearing to disqualify Zaug as counsel in the underlying litigation. Nagle objected that her description of Zaug’s statements was inadmissible hearsay. On the basis of Cofield’s response that the statements were not offered for the truth of the matter asserted, the circuit court overruled the objection. Accordingly, the parties to this appeal dispute the evidentiary value of Yanira’s testimony for the purpose of the disciplinary proceeding. For the reasons stated herein, we do not address this question.

3 Section IV of the Rules of this Court. Sitting by designation

pursuant to Code § 54.1-3935(B), a three-judge panel of the

court affirmed the findings of the district committee and the

sanction of a dismissal de minimis. Zaug perfected a timely

appeal of right from the court’s judgment pursuant to Code

§ 54.1-3935(E) and Rule 5:21(b)(2)(ii).

II. ANALYSIS

When we review a lawyer discipline proceeding, “the State

Bar has the burden of proving by clear and convincing evidence

that the attorney violated the relevant Rules of Professional

Conduct.” Weatherbee v. Virginia State Bar, 279 Va. 303, 306,

689 S.E.2d 753, 754 (2010) (citing Barrett v. Virginia State

Bar, 272 Va. 260, 268 n.4, 634 S.E.2d 341, 345 n.4 (2006); Blue

v. Seventh District Committee, 220 Va. 1056, 1062, 265 S.E.2d

753, 757 (1980); Seventh District Committee v. Gunter, 212 Va.

278, 284, 183 S.E.2d 713, 717 (1971)).

We conduct an independent examination of the entire record. We consider the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the Bar, the prevailing party in the trial court. We accord the trial court’s factual findings substantial weight and view those findings as prima facie correct. Although we do not give the trial court’s conclusions the weight of a jury verdict, we will sustain those conclusions unless it appears that they are not justified by a reasonable view of the evidence or are contrary to law.

4 Id. at 306, 689 S.E.2d at 754-55 (quoting Anthony v. Virginia

State Bar, 270 Va. 601, 608-09, 621 S.E.2d 121, 125 (2005)

(internal quotation marks and citation omitted)). The Virginia

Rules of Professional Conduct are Rules of this Court. See

Code § 54.1-3909. The interpretation of such Rules is a

question of law we review de novo. LaCava v. Commonwealth, 283

Va. 465, 469-71, 722 S.E.2d 838, 840 (2012).

Rule 4.2 of the Virginia Rules of Professional Conduct

states that “[i]n representing a client, a lawyer shall not

communicate about the subject of the representation with a

person the lawyer knows to be represented by another lawyer in

the matter, unless the lawyer has the consent of the other

lawyer or is authorized by law to do so.” The commentary

provides guidance for interpreting the scope and meaning of the

Rule. Comment 3 states,

[t]he Rule applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule. A lawyer is permitted to communicate with a person represented by counsel without obtaining the consent of the lawyer currently representing that person, if that person is seeking a “second opinion” or replacement counsel.

5 (Emphasis added.) Further, Comment 4 states, in relevant part,

“This Rule does not prohibit communication with a represented

person . . . concerning matters outside the representation.”

Viewed in the light of the commentary, it is clear that

the Bar must prove three separate facts to establish a

violation of the Rule: (1) that the attorney knew that he or

she was communicating with a person represented by another

lawyer; (2) that the communication was about the subject of the

representation; and (3) that the attorney (a) did not have the

consent of the lawyer representing the person and (b) was not

otherwise authorized by law to engage in the communication.

While the first two facts may occur in any order, both must

occur before an attorney violates the Rule.

Zaug admits that she was aware of the subject of the

telephone call when she answered it, and this is reflected in

the district committee’s factual findings. However, the record

does not disclose when she became aware that the caller was a

represented person. Although Yanira testified at the hearing

on her motion to disqualify counsel that Zaug addressed her as

Mrs. Copcutt when she answered the call, thereby indicating

Zaug knew the identity of the caller at the time she answered,

Zaug denied knowing the identity of the caller until Yanira

described the emotional toll the litigation was having on her

family.

6 The circuit court made no factual findings and merely

affirmed the district committee’s determination. However, the

district committee made no finding resolving this dispute of

fact. To the contrary, the district committee found only that

Zaug “was aware she was speaking with Copcutt either at the

time she took the telephone call or concomitantly therewith.”

We are unable to decipher the meaning of this finding.

“Concomitantly” means “in a concomitant manner.” Webster's

Third New International Dictionary 471 (1993). “Concomitant”

means “accompanying or attending esp[ecially] in a subordinate

or incidental way[;] occurring along with or at the same time

as and with or without a causal relationship.” Id.

Accordingly, the finding does not determine whether Zaug

knew the identity of the caller when she answered or soon

thereafter. Consequently, this finding does not answer the

question of when Zaug knew both (a) the identity of the party

with whom she was communicating and (b) the subject of the

communication. 2 Further, at oral argument, the State Bar

conceded that there was no evidence of how much time elapsed

between the instant Zaug knew both pieces of information and

the end of the call.

2 The district committee found that Zaug knew Copcutt was a represented person and that Zaug neither had Cofield’s consent nor was authorized by law to engage in the communication. Those facts are not in dispute.

7 Nevertheless, “[w]e conduct an independent examination of

the entire record.” Weatherbee, 279 Va. at 306, 689 S.E.2d at

754. Zaug testified that she answered, “This is Heather, how

can I help you?” The caller responded, “I need to speak with

Mr. Nagle. The deposition needs to be cancelled.” Nonplussed

by the response, Zaug then said, “This is Heather Zaug. I work

with Mr. Nagle on the case. Who is this? How can I help you?”

At that point, according to Zaug, Yanira began her emotional

outburst, stating that the litigation was too much for her

family. Zaug then knew the identity of the caller.

According to Zaug, she then said, “I’m sorry. I cannot

help you. You need to try to speak with Ms. Cofield. Have you

tried to reach Ms. Cofield?” Yanira’s emotional outpouring

continued for an unspecified number of seconds before Zaug

concluded the call by stating, “I’m sorry. We can’t help you.

You need to try to reach Ms. Cofield. I’ll try to contact Mr.

Nagle and they’ll have to sort this out.” Zaug’s witness

testified that this interval lasted no longer than 30 seconds.

The dispute between Zaug and the State Bar focuses on this

uncertain period of time.

Both parties argue the meaning and intent of the word

“immediately” in Comment 3. The State Bar argues that Zaug

violated the Rule when she failed to terminate the call by

hanging up during Yanira’s emotional outburst. Zaug argues

8 that such conduct would violate the principles of

professionalism which infuse and imbue the proper practice of

law. “Immediately,” she contends, does not mean

“instantaneously,” and the Rule does not obligate an attorney

to hang up on a represented person without regard to courtesy.

We agree with Zaug.

In the course of being admitted to the Bar of this Court,

every attorney swears the following oath:

Do you solemnly swear or affirm that you will support the Constitution of the United States and the Constitution of the Commonwealth of Virginia, and that you will faithfully, honestly, professionally, and courteously demean yourself in the practice of law and execute your office of attorney at law to the best of your ability, so help you God?

(Emphasis added). See also Code § 54.1-3903.

Further, the State Bar publishes principles of

professionalism on its website. The preamble states,

From Thomas Jefferson to Oliver Hill, Virginia lawyers have epitomized our profession’s highest ideals. Without losing sight of what lawyers do for their clients and for the public, lawyers should also focus on how they perform their duties. In their very first professional act, all Virginia lawyers pledge to demean themselves “professionally and courteously.”

Virginia State Bar, Principles of Professionalism,

http://vsb.org/pro-guidelines/index.php/principles/ (last

visited Jan. 10, 2013). The principles state that, “In my

conduct toward everyone with whom I deal, I should [r]emember

9 that I am part of a self-governing profession, and that my

actions and demeanor reflect upon my profession,” and “I should

[t]reat everyone as I want to be treated — with respect and

courtesy.” Id.

The Virginia Rules of Professional Conduct are precisely

what they are described by their title to be: rules of

professional conduct. They exist to further, not to obstruct,

the professionalism of Virginia attorneys. Professionalism

embraces common courtesy and good manners, and it informs the

Rules and defines their scope. Accordingly, we will not

construe the Rule to penalize an attorney for an act that is

simultaneously non-malicious and polite.

The State Bar argues that to permit Zaug’s conduct creates

a so-called “distraught caller exception” or a “60-second call

exception” to Rule 4.2, obscuring an otherwise bright-line rule

of ethical conduct. We agree with the State Bar that attorneys

must understand that they are ethically prohibited from

communicating about the subject of representation with a person

represented by another attorney unless they have that

attorney’s consent or are authorized by law to do so. The Rule

categorically and unambiguously forbids an attorney from

initiating such communications and requires an attorney to

disengage from such communications when they are initiated by

10 others. But the Rule does not require attorneys to be

discourteous or impolite when they do so.

In this case, it is undisputed that Zaug did not initiate

the telephone call. There is no evidence in the record, and

the State Bar does not assert, that Zaug intended to gain

advantage from it. Likewise, there is no evidence that Zaug

deliberately or affirmatively prolonged it. On these specific

and narrow facts, and construing Rule 4.2 to advance behavior

that is both professional and ethical, we conclude that no

violation occurred in this case. For these reasons, we will

reverse the judgment of the circuit court, vacate the sanction

imposed, and dismiss the charge of misconduct.

Reversed, vacated, and dismissed.