Publisher's Notebook

Several years ago, Roanoke lawyer Mike Pace was sitting at the dinner table with his wife Nancy and daughters Maggi and Cate.

They were talking about Maggi’s social studies class in school; the kids were studying the different branches of government – executive, legislative and judicial.

But as he talked with his daughter, Pace realized that schools taught how the government works, but not why it works. Students weren’t getting a sense of how the rule of law operates in the United States. Pace developed an idea about how to fix that.

With the Roanoke Bar Association, he launched a Rule of Law pilot project in 2009, recruiting in local lawyers, who fanned out to schools across the Roanoke Valley.

Pace had served as president of the Virginia Bar Association in 2008, and he sold them on the idea.

With the muscle and manpower of the VBA and the financial backing of the Virginia Law Foundation, the project spread to other parts of the state, with lawyers and judges picking up the chalk and spreading the project’s message in Virginia’s schools.

What do they teach? According to the website of what is now the VLF/VBA Rule of Law Project, the goal is to share the message that, under the rule of law, the people make the laws, which are to be fairly and equally applied to everyone. People agree to obey those laws, because there can be no legitimate government without the consent of the governed. The rule of law is the tie that binds citizens together as a nation of diverse people. That’s the why that may be missing from civics classes.

Bar groups in other states have taken a look at the project and followed Virginia’s lead. Pace and Tim Isaacs, who serves as the project’s director of education, have been taking the message to Europe and other international venues.

Last fall, Roanoke College established the Center for Teaching the Rule of Law; Pace serves as its CEO, and Isaacs is the center’s vice president.

On Jan. 25 in Williamsburg, the VBA bestowed its highest award, the Gerald L. Baliles Distinguished Service Award, to Pace for his service to the association and for his signature achievement, the Rule of Law Project. Past recipients include such luminaries as Baliles himself (who presented the award), Supreme Court Justice Lewis F. Powell Jr.; 4th Circuit Judge Roger L. Gregory; and Supreme Court Justices Harry L. Carrico, Leroy R. Hassell Sr. and Elizabeth B. Lacy, among others.

Pace was typically modest when he accepted the award, saying he did so on behalf of all the people who had been involved in the project.

But his idea remains bold. The stated mission of the VLF/VBA Rule of Law Project is nothing less than “to change fundamentally the way the rule of law is taught in America’s schools.”

Thanks to Pace, they are on their way. Well done, sir, well done.

WILLIAMSBURG–The Virginia Law Foundation inducted 17 Virginia lawyers last night as its 2013 Class of Fellows. The VLF holds its induction dinner each year in connection with the Virginia Bar Association winter meeting. Members of the Class of 2013 are:

David N. Anthony, Richmond – Troutman Sanders
William L. Babcock Jr., Alexandria – William L. Babcock Jr. PC
Jonathan T. Blank, Charlottesville – McGuireWoods LLP
Jack W. Burtch Jr., Richmond – Macaulay and Burtch PC
Robert L. Calhoun, Alexandria – Redmon, Peyton & Braswell
Clarence M. Dunnaville Jr., Midlothian – solo practitioner
Thomas R. Frantz, Virginia Beach – Williams Mullen
Jacob A. Lutz III, Richmond – Troutman Sanders
Albert M. Orgain IV, Richmond – Sands Anderson PC
J. Lee E. Osborne, Roanoke – Woods Rogers PLC
Don W. Piacentini, Henrico – Parker, Pollard, Wilton & Peaden, PC
Gregory B. Robertson, Richmond – Hunton & Williams, LLP
Melissa Walker Robinson, Roanoke – Glenn Robinson & Cathey PLC
Bruce C. Stockburger, Roanoke – Gentry Locke Rakes & Moore LLP
John Tarley Jr., Williamsburg – Tarley Robinson PLC
Lucia Anna Trigiani, Alexandria – MercerTrigiani
J. Page Williams, Charlottesville – Feil, Petit & Williams PLC

Induction as a Fellow of the Virginia Law Foundation is a special honor conferred by the VLF Board on selected Virginia attorneys, law professors, and retired members of the judiciary who are deemed to be outstanding in their profession and in their community.

So who will be the first disc jockey to play today’s Song of the Day, in honor of Notre Dame’s Manti Te’o?

The song, of course, would be an oldie goldie from 1978:

“Imaginary Lover” by Atlanta Rhythm Section.

H/T to our news editor, Peter Vieth…

Legal ethics cases don’t make their way to the Supreme Court of Virginia all that often, but the high court had an unusual argument docket last week: It included three lawyer-discipline appeals.

The court heard issues involving lawyer blogging and the limits of the First Amendment in the Horace Hunter case. The Thomas Northam case addressed issues of firm conflicts.

The third appeal, the Heather Zaug case, involves contact with an opposing party and a phone call shorter than an NFL time-out.
Supreme Court Justice Bill Mims said that whenever a Virginia State Bar case comes to the court, the justices think, “There but for the grace of God go I. How would I have handled that?”

That’s probably the reaction of a lot of lawyers.

The Zaug case may hit a nerve like no other. A lawyer got an unexpected call from a woman who was the opposing party in one of her cases. The lawyer tried quickly to think what she needed to do, then told the woman she couldn’t talk to her and ended the conversation. Zaug did all that in less than 60 seconds.

She and her partner notified opposing counsel immediately. That lawyer sought to get Zaug thrown off the case (a judge declined to disqualify her) and she lodged a bar complaint, which resulted in discipline for Zaug.

Granted, a VSB district committee gave, then a three-judge panel upheld, a “dismissal de minimis,” the lightest possible sanction the bar has. It is a finding that a lawyer has “engaged in misconduct that is clearly not of sufficient magnitude to warrant disciplinary action,” and the lawyer has “taken reasonable precautions” against a recurrence.

In other words, you messed up but it wasn’t all that serious and you’ve taken steps to make sure you don’t mess up again. But it remains a formal finding of misconduct, something Zaug would have to report on any application or questionnaire that asked, “Have you ever been disciplined?”

Many, many lawyers across the commonwealth will tell you they have encountered a similar situation, especially lawyers who handle domestic relations cases.

I heard from a number of them Jan. 9, when Jim McCauley, the VSB’s Ethics Counsel, and I were the panel presenting “Hot Topics in Legal Ethics” to the I’Anson-Hoffman American Inn of Court last Wednesday night in Hampton.

Judging from the crowd’s reaction, legal ethics doesn’t get hotter than the Zaug case.

Rule 4.2 of the Rules of Professional Conduct is at issue in the case; it prohibits a lawyer from communicating with a represented party. But it’s not a strict liability rule, prohibiting any talk at all. It just prohibits discussion of the case or matter involved.

How swiftly the lawyer has to get rid of the party is a hard question. In Zaug’s case, it’s not known exactly when during the minute-long talk she realized she had the opposing party on the line. That’s the answer, though – end it when it becomes apparent what you’re talking about and with whom.

Some of the justices in Wednesday’s argument noted that it would be rude (i.e., not in keeping with guidelines encouraging civility, professionalism and courtesy) just to slam down the receiver or hang up.

And in this case, the opposing party who called Zaug was distraught and emoting about the toll her case was taking on her family.

Mims asked what should the lawyer do if she was facing someone who had mental health problems or who might be a danger to herself or others.

The Inn of Court audience in Hampton wanted to push the example of Zaug into other, common circumstances.

What if I am in the grocery store when a party recognizes me and comes over to talk about the case, asked one woman. And what if after saying “I can’t talk” and walking away, the party keeps pursuing me down the aisle? she said.

One man wondered what to do if he and his family were having dinner at a restaurant and a party approached their table. If the party persisted, would he have to get up and leave the restaurant?

Then there is email. One lawyer noted that he had the same fact pattern Zaug faced, but his contact came in an email message the opposing party sent him. Once he figured out what was happening, he wrote back saying he couldn’t communicate, and he called the opposing lawyer immediately.

Even though Zaug has had to endure three levels in her discipline case, I think she’s right to object to a finding of misconduct, even if it is a minor one.

What happened to Heather Zaug has happened to many lawyers. And it will happen again today, and tomorrow, and the day after that.

In her disqualification hearing, Zaug testified, “I was faced with a very difficult situation, totally surprised to be called by a plaintiff.”

She continued, “[The woman] was very upset and I did the best I could under the circumstances.”

That’s all that any of us can do.

As noted on numerous prior occasions in this space, it pays to proofread – a bit of advice worth taking, whether you work at a law firm or at a public relations firm that does work for a law firm.

Yesterday, for example, a publicist sent me the following email announcing a new hire (Names changed to protect the guilty):

Holmes and Rehnquist is pleased to welcome our newest partner, Antonin Roberts. Attached below please find our announcement available for release in your publication [PUBLICATION]. Please let me know if you have any questions or need any additional information.