Imagine walking around in another person’s skin, in order to understand him.
Atticus Finch gave that advice to his daughter Scout, and it may have been on the minds of Virginia’s Supreme Court justices when they heard a trio of lawyer discipline cases last week.
When a Virginia State Bar complaint comes before the court, said Justice William C. Mims, the justices think, “There but for the grace of God go I. How would I have handled that?”
Mims posed the question during the Jan. 9 argument in the case of Zaug v. Virginia State Bar.
Fairfax lawyer Heather E. Zaug appealed a dismissal de minimis imposed in June for her response during a one-minute surprise phone call from a plaintiff in a medical malpractice case Zaug was defending. The caller blurted out details of how the lawsuit was affecting her family and that she and her husband “desired to dismiss the case,” according to the findings of a VSB disciplinary district committee.
Zaug said when she realized who was on the other end of the line, she told the plaintiff she could not help her and the plaintiff needed to call her own lawyer. The call lasted no more than 60 seconds.
But the three-judge panel that heard Zaug’s June appeal said she violated Virginia Rule of Professional Conduct 4.2 by not ending the call more quickly.
“Rule 4.2 does not say you can’t talk to the opposing party. It says you can’t talk about the subject matter of the representation with the opposing party,” Zaug’s lawyer, Bernard J. DiMuro, told the high court.
Zaug did not know who was on the phone when she first took the call, DiMuro said. Once she understood who was calling, “she did exactly what the Bar said should be done,” according to evidence presented by the Bar, DiMuro said.
Under Rule 4.2, a lawyer is “not forbidden to speak, you can talk to them,” but if they broach the subject matter of the representation “you have to disengage,” DiMuro argued.
Mims asked DiMuro if he was arguing that, “consistent with professionalism and courtesy, based upon these narrow facts, Rule 4.2 was not violated?”
DiMuro agreed with that proposition, saying the Bar’s interpretation of the Rule called for strict liability.
Appearing for the VSB, Senior Assistant Bar Counsel Seth M. Guggenheim argued the Rule required Zaug to immediately tell the caller she could not talk to her, and end the conversation, not just “attempt” to end it.
The lawyer “cannot talk to that person, period?” asked Justice Donald W. Lemons. “How do you expect the lawyer to figure out what [the Rule] is and when they are subject to discipline?”
The call could be about the time of a related deposition, or to say, “I’m stuck in traffic,” Mims said. Is the lawyer supposed to say,
“I’m sorry, I can’t talk to you. I have to hang up,” and immediately hang up on the caller?
Some comments from the court suggested that a lawyer’s ability to come up with the right response isn’t necessarily a reflex, but may take some reflection.
Mims recalled being faced with a dilemma in practice when he had a client who lied at trial, and Mims said he “had to think, exactly what do I do? It can take more than a few seconds” to decide, to recall “what do the rules require me to do.”
Fortunately, lawyers frequently can call the VSB for advice, Mims said, but sometimes there isn’t time.
“You’re saying every single attorney should be so aware that they just stop it without thinking?” Mims asked.
“This is one thing every lawyer can intuit,” Guggenheim responded, that the lawyer should not be talking to the opposing party.
That’s why Zaug testified she would never have taken the call had she known it was the plaintiff, he said.
“This call should have lasted 10 seconds,” Guggenheim said.
Zaug’s case was DiMuro’s second appearance that day on behalf of a disciplined lawyer. Earlier that morning, he told the Supreme Court the VSB erred in admonishing Eastern Shore lawyer Thomas L. Northam for continuing to represent a husband in a divorce after learning his partner had been contacted by the wife.
The VSB board held that Northam violated Rule 1.10 because confidential information the wife told Northam’s law partner, Lynwood W. Lewis, was imputed to Northam, thus disqualifying Northam from representing the husband.
Members of the high court questioned whether a lawyer’s mere knowledge that a partner had talked with a client’s spouse required the lawyer’s disqualification, in light of the Rule’s requirement that the lawyer “knowingly” proceed with representation.
The Rule and its comments allow the Bar to infer the lawyer’s knowledge from all the circumstances, argued Assistant Attorney General Michael Melis for the VSB.
The justices directed other questions to a possible duty of inquiry. Does disclosure of the fact of the meeting trigger a duty of inquiry for the lawyer hearing the information, or is it the responsibility of the lawyer who met with the wife to spell out that a problem exists?
Suppose the wife “contacted Lewis about a personal injury case or her father’s will?” Lemons asked. “Does the lawyer have a duty to find out” what his partner talked about with the prospective client?
Melis responded that when you look at all the evidence in the case, especially Lewis saying he “interviewed” the wife as well as “met” with the wife, the record supports the board’s finding.
The court’s view of this case will have broader impact beyond domestic relations practice, Lemons said, referring to criminal defense work and to corporate lawyers’ attempts to fashion firewalls in order to keep client matters separate.
In the criminal defense bar, “there are a lot of things lawyers just don’t ask,” Lemons said.
Northam faced his disqualification dilemma in April 2010. In June 2011, the Supreme Court adopted Rule 1.18, which provides additional protections for a law firm, especially in situations when a person contacts a lawyer strategically to preempt the lawyer or his firm from representing an adversary.