Publisher's Notebook

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.

Fairfax Circuit Judge Jane Roush and Abingdon lawyer Mary Lynn Tate provided a “Tort Law Update” on recent cases from the Supreme Court of Virginia at the Virginia Trial Lawyers Association convention on April 2.
In particular, they commended the audience to review a January 2011 case, CNH America LLC v. Smith. It provides a “mini-treatise” on the law governing expert testimony, they said.

The case was a products liability suit involving a lawn mower, and the controversy centered around two experts for the plaintiff. On cross-examination, they admitted that they did not know this or that and that they hadn’t examined the mower hose that had failed.

In short, the trial judge observed, “they’re just barely experts, maybe . . . but’s that all they have to be.”

And that’s not wrong, Roush and Tate said. So long as the expert knows more than the trier of fact and can provide information to help in a decision, he can testify. But after the high court reversed in the CNH case, the expert’s opinion now needs to have some foundation behind it, they noted.

And while speaking of barely there experts, Roush said she remembered that back in law school at U.Va., she had a professor who had joked there was a different way to define expert: “Anybody who comes from out of town.”

Supreme Court Justice Bill Mims celebrated exactly one year on the job last Friday with a talk to the Virginia Trial Lawyers Association entitled, “Reflections from the End of the Bench: Musings of a Rookie Justice.”

Mims will graduate to veteran very shortly: Either the General Assembly or the governor will be adding two new justices to fill two vacancies. Mims will jump to fifth in seniority on a seven-member court.

Mims came to the court after a career as a practicing lawyer, as a member of both the House of Delegates and the Senate, and as Attorney General. He said he agrees with a statement made by U.S. Supreme Court Justice Samuel E. Alito: “Judging is not an academic pursuit; it is a practical activity.”

Mims observed that the Virginia high court isn’t known for having very many dissents or concurrences. The court generally speaks with one voice.

Of 74 cases during his first year on the court, Mims said there were only eight dissents with no discernible pattern. And there were just six concurrences.

Of those six concurrences, five were filed by … the rookie justice himself.

Mims said his daughter, a first-year student at the University of Virginia law school, apprised him that he better quit that.

She cut to the chase and said, “No one is known at the Great Concurrer.”

He probably knew it would be his last speech.

Supreme Court Justice Leroy Hassell, who died last Tuesday, made his last public appearance at the Virginia Bar Association meeting in Williamsburg on Jan. 21, just three and a half weeks prior to his death.

He apparently had cancer. And he had the chance to speak to a crowd of lawyers and judges.

The VBA wanted to present its Gerald L. Baliles Distinguished Service Award to Justice Hassell, so they asked the former governor himself to do the honors. A fitting move, since it was Baliles who had appointed Justice Hassell to the court in 1989.

Outgoing VBA President Steve Busch, who started as an associate at McGuireWoods the same year as Justice Hassell, was unsure his longtime friend could make the trip. But after a touch-and-go afternoon of phone calls and checking back, the justice was coming.

The VBA rearranged its dinner schedule. Normally at bar association banquets, awards and accolades are served at the same time as dessert and coffee. But the Baliles award came at the start of the dinner. The justice couldn’t take sitting through a lengthy meal.

The former governor is always so good at these moments – poised, funny, ready to turn just the right phrase, in charge but at ease – and he was very good that night. He spoke fondly of the man he put on the court at age 34, plucking him from a partnership at McGuireWoods. There were handshakes and photographs all around.

Then Justice Hassell had his turn. He slowly made his way to the podium and spoke without notes.
He started a little shakily but he drew strength from the crowd and the moment.

He made oblique reference to his medical condition, saying he recently had been back in the hospital due to a bad reaction to some medicine.

It was clear he was very sick, but he didn’t say what was wrong, not even to his colleagues on the court. He was a very private man. He had politely declined our several requests for an interview at the end of his term as chief justice, just as he had politely declined our requests in 2003 when he was first taking over.

He thanked the VBA.

He thanked Baliles. Back in 1989, the governor had summoned him to his office one day and said he was one of three finalists for the seat. “Right now you’re number three,” the governor had said, giving the future justice the chance to make his pitch.

He thanked his mentors at McGuireWoods, including Anne Whittemore, for the training and comradeship he had enjoyed at that firm.

He thanked his colleagues on the court, and he said it had been an honor to serve the commonwealth.

He thanked God. Anyone who has listened to Justice Hassell speak knows that he was a man of deep religious faith. God had played an important role in his life, he acknowledged.

He thanked his children. This private man had some of his most difficult family problems aired very publicly. His son and elder daughter both ran into trouble with the law during his stint as chief justice. His message to them and everyone in attendance was he still loved them.

Last, he thanked his wife, Linda, for her love and support over the years.

He saluted Justice Cynthia Kinser, who was in the audience and who would succeed him as chief justice just 10 days later. And he said that he looked forward to continuing to serve on the court for a good long time.

No doubt he was exhausted when he sat down. But he had a smile on his face. That evening, Leroy Hassell got an opportunity few people get: He got to say goodbye in a meaningful way, with poise, humor, humility and a touch of grace.

The 2011 General Assembly, which convenes Wednesday, will be seeking to elect a new justice to take the seat of retiring Supreme Court Justice Lawrence Koontz.

Eight statewide bars have handed down endorsements, with the results a veritable crazy quilt and with no runaway winner emerging. Judge Elizabeth McClanahan of the Court of Appeals is the ostensible leader in endorsements, having been tapped by all eight bars and given the highest recommendation by five. Danville Circuit Judge Joseph Milam was the only other candidate to be endorsed by all eight, earning the top backing of three.

There are 10 people in the running, including four members of the appeals court – Judges McClanahan, Arthur Kelsey, Randolph Beales and Robert Humphreys – and two circuit judges, Pamela Baskervill of Petersburg and Milam. Appellate lawyers Steve Emmert and Monica Monday round out the list, as do Virginia Beach litigator Glen Huff and William Thro, a former state solicitor general.

Those who earned the bar endorsements should rightfully consider them a vote of confidence in their abilities. But for better or worse, all the nice things that bar groups say may not mean that much once the Assembly is in session.

Del. Dave Albo, R-Fairfax, is chair of the House Courts of Justice Committee and will play a key role in whoever gets Koontz’s seat on the court.

He told this newspaper in an interview this week that he views himself as the broker of the process and he won’t be advocating one candidate over another.

The race is wide open, he indicated, and that basically it will depend on the effectiveness of a candidate’s legislative angels. An angel, in this context, is a legislator who will takes the candidate around to meet other legislators, talks up his guy’s or gal’s chances and serves as an advocate.

If needed, the angel may even work a deal for the candidate. Supreme Court Senior Justice Elizabeth Lacy once noted, famously, that the Assembly is a place where you might see a judge traded for a bridge.

Expect the 10 – or as many of the 10 that can spare the time – to be working the halls of the Assembly, meeting and greeting delegates and senators.

Albo provided some clues to the Assembly’s mindset in a separate interview with the Associated Press earlier in the week. Albo told the AP, “The perfect candidate is somebody who geographically represents an area not represented or underrepresented on the Supreme Court.”

He added, “It’s someone who has been an accomplished lawyer for years, has lots of experience and has been a judge for a little bit.”

Check your scorecards to figure out what the geographical comment means. If justices are identified with their original home areas, then Northern Virginia has Justices Bill Mims and LeRoy Millette; Central Virginia has Chief Justice Leroy Hassell and Justice Don Lemons; Hampton Roads has Justice Bernard Goodwyn; and Southwest Virginia has Justice Cynthia Kinser. The Valley and Southside aren’t presently represented, and the Southwest would lose a little clout with the departure of Koontz, who is from Salem.

The thought that the new justice should have prior judicial experience may be the most telling detail and could tilt things to the appeals court candidates, who have been not just judges but appellate jurists.

Expect the six candidates with judicial experience to play that card when making the rounds. And the other four have been trained as lawyers, so they should know how to distinguish an argument that goes against them.

John Charles Thomas recently retired from the Supreme Court of Virginia.

Wait a minute. Thomas hasn’t been on the court since 1989, you say.

That’s true. In 1983, at age 32, Thomas became the first African-American to sit on the court. He resigned in 1989 due to a brain tumor, and after receiving treatment, rejoined Hunton & Williams, where he is a senior partner.

But apparently one can’t formally retire from the court until the age of 60, which Thomas reached in September. He said that now he actually could be recalled, as a retired justice, to sit on a panel.

In the meantime, he’ll stay busy with his work at Hunton – and at Juridical Solutions. He recently signed on as a senior professional with that mediation company.

Yesterday of course was Election Day in the Old Dominion. The GOP swept all three statewide offices behind Gov.-elect Bob McDonnell.

The Republicans picked up three House of Delegates seats, with three more possible; in races in Fairfax, Lynchburg and Virginia Beach, challengers were ahead of Democratic incumbents by paper-thin margins. You can expect at least a few recounts before election season is over.

There are at least four new questions to ask since last night.

1. What Happens to Cuccinelli’s Seat?

Republican Sen. Ken Cuccinelli will be leaving the Senate to take his new post as Attorney General in January. That means there will there will be a special Senate election in Fairfax. Cuccinelli squeaked out a victory last time after a recount. Northern Virginia has been trending very blue in recent elections. On Tuesday, Democrat Creigh Deeds did well in the hyper-liberal bastions of Arlington and Alexandria, but by and large McDonnell carried Northern Virginia.

2. What Happens to Stolle’s Seat?

Sen. Kenneth Stolle, R-Virginia Beach, was elected Sheriff of the city yesterday, getting about 70 percent of the vote. Presumably his seat will be up for a special election shortly as well.

3. What Happens with the Soon-to-be-Pending Supreme Court Vacancy?

Justice Barbara Milano Keenan remains on the fast track to get a seat on the 4th U.S. Circuit Court of Appeals. When/if she is confirmed by the U.S. Senate, there will be a seat on the Virginia high court. What happens now that there is a lame-duck Demo governor, an incoming Republican governor and a stronger GOP majority in the House? Outgoing Gov. Tim Kaine had tipped that he wanted to make the appointment, but all bets now may be off.

4. What About Bill Mims?

Attorney General Bill Mims was Bob McDonnell’s chief deputy before McDonnell quit to run for governor earlier this year. Undoubtedly there may be some role for Mims in the McDonnell administration, perhaps a cabinet post. Or maybe that Supreme Court seat that may open up any day now – Mims threw his name into the ring, and garnered substantial endorsements from bar groups, in 2007 for a seat that went to Justice Bernard Goodwyn and again last year when Kaine was mulling a vacancy that ultimately went to Justice LeRoy Millette.