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
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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.
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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.
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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.
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(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.
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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.
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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
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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
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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
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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.
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