Gone in 60 seconds

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.