Pat Murphy, The Daily Record Newswire
The Virginia Supreme Court has overturned a finding of misconduct against an attorney who took an emotional call from an opposing party in the midst of a medical malpractice case.
In 2010, the Virginia State Bar charged Fairfax attorney Heather E. Zaug with a violation of Rule 4.2 of the Virginia Rules of Professional Conduct.
The rule — which has its counterparts across the country — provides that a lawyer who represents a client in a matter “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 charge against Zaug stemmed from a brief phone call that she took in her office from Yanira Copcutt on April 15, 2010. Copcutt and two relatives had sued a doctor for medical malpractice. Zaug and her partner, Richard L. Nagle, represented the doctor.
According to the court, Copcutt had called the office to tell Nagle that a scheduled deposition of one of the other plaintiffs in the case needed to be cancelled. Nagle was on his way to the deposition, so a staff member transferred the call to Zaug.
Zaug later admitted that she knew the call concerned the deposition, but denied knowing who the caller was when she answered. On the other hand, Copcutt would testify that Zaug answered the call, saying, “Hi, Mrs. Copcutt.” This factual dispute was never resolved in the ensuing disciplinary proceeding.
The parties do agree that Copcutt was distraught at the time and told Zaug about the toll the litigation was taking on her family.
According to Zaug, the call lasted approximately 60 seconds and she tried to terminate the conversation once she learned that it was Copcutt on the line. Zaug claimed that Copcutt resisted terminating the call “with an outpouring of emotion,” but that Zaug finally ended the conversation by telling Copcutt that “we can’t help you” and that she needed to contact her own lawyer.
According to Copcutt, she started crying and rambling about the medical malpractice suit when Zaug asked her what was wrong with the deposition. Further, Copcut admitted telling Zaug that she wanted to dismiss the case.
Copcutt later told her own lawyer about the conversation. Copcutt’s lawyer filed a complaint with the state bar against Zaug. A state disciplinary committee found that Zaug’s conduct indeed violated Rule 4.2.
However, the committee only leveled the sanction of a “dismissal de minimis,” which under state bar rules means that the misconduct was not of sufficient magnitude to warrant further disciplinary action.
Despite the slap on the wrist, Zaug was upset with the finding of misconduct and appealed.
Earlier this month, the Virginia Supreme Court agreed that Zaug had done nothing wrong, rejecting the state bar’s interpretation of the rule that the lawyer was required to hang up the “instant” she realized an opposing party represented by counsel was on the line.
“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 others,” the court explained. “But the Rule does not require attorneys to be discourteous or impolite when they do so.”
Here, the court concluded that Zaug’s handling of Copcutt’s phone call fell within the bounds of professional behavior:
“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.”
