Attorney admonished for Rule 3.3(a)(1) violation

The Virginia Supreme Court agrees with a three-judge panel’s memorandum order, which determined that respondent-appellant violated Rule 3.3(a)(1) of the Rules of Professional Conduct and that an admonition is the appropriate sanction.

In its order, the panel “unanimously found under the clear and convincing evidentiary standard that the manner Respondent presented the language from the HHS [Health and Human Services] website in her pleadings was intentional and constituted knowingly false statements of the content of 45 C.F.R. § 164.524(c)(4)[.]”

Overview

During the course of medical malpractice litigation, respondent “issued a deposition notice to a nonparty hospital seeking access to the plaintiff’s electronic health records. The hospital agreed to provide access, but because it used an internal provider portal to access patient records, it advised that it would charge a fee for providing a staff member to facilitate access.”

Respondent objected to the fee and filed a motion, asserting that “the Health Insurance Portability and Accountability Act and regulations … prohibited a health care provider from charging a fee for viewing preexisting protected health information (‘PHI’). To support this assertion, the motion stated: ‘The fee may only (emphasis in the original CFR) include costs of (1) labor for copying; (2) supplies for creating the paper copy or CD, USB drive; (3) postage if requested to be mailed; (4)preparation of an explanation or summary of the PHI, if a summary is requested; (5) transferring (e.g., uploading, downloading, attaching, burning) electronic PHI to a web-based portal (where the PHI is not already maintained in or accessible through the portal). See, CFR 164.524(c)(3) and (4).’”

The trial judge reviewed the pleading “and found that only the first four costs enumerated in the list were supported by the cited C.F.R. provisions.” In a letter to respondent and opposing counsel, the judge noted that his copy of the regulation did not have a fifth item.

“The judge went on to note: ‘My law clerk and I have been unable to locate any authority whatsoever to support the assertion that a provider may charge the fee described in what is cited as subparagraph (5) only if the PHI is not maintained in a portal. In fact, we find nothing in the statute or regulations that even mentions a portal.’” The judge asked both parties for a “written response.”

Respondent submitted a document “titled ‘Plaintiff’s Clarification.’ This clarification comprised only a highlighted printout of a ‘Questions and Answers’ section of the HHS website discussing permissible fees for providing access to PHI. She did not include a signed pleading, brief, or any sort of narrative explanation in reply to the judge’s request for a ‘written response.’ The printout contained the language used in subparagraph (5) of [respondent’s] pleadings that the citation clause attributed to ‘CFR 164.524(c)(3) and (4).’”

In the opinion denying respondent’s motion, the judge observed that respondent’s “pleadings ‘describe the regulation as having an extra provision that it does not have’ and ‘purport to quote the regulation verbatim.’ These references, the trial court ruled, ‘are misrepresentations of the text of 45 C.F.R. § 164.524(c).’”

Complaint and resolution

The trial judge filed a complaint with the Virginia State Bar, which investigated and charged respondent with violating Rules 1.1 and 3.3(a)(1). A three-judge circuit court panel found respondent violated Rule 3.3(a)(1) but not Rule 1.1.

In its memorandum order, the panel said it “unanimously found under the clear and convincing evidentiary standard that the manner Respondent presented the language from the HHS website in her pleadings was intentional and constituted knowingly false statements of the content of 45 C.F.R. § 164.524(c)(4), in that she presented that language as a sequentially numbered subpart of the C.F.R. along with the four actual numbered subparts of the C.F.R. and cited to the C.F.R. but made no citation or reference to the HHS website — all with knowledge that the C.F.R. did not contain that language or a fifth subpart and that the HHS website was the source of that language — in violation of [Rule 3.3(a)(1)].’

“After hearing evidence and argument during the sanctions phase of the hearing, the panel unanimously determined that an admonition was the appropriate sanction for [respondent’s] conduct.

We agree with the memorandum order of the three-judge panel and affirm.”

Cofield v. Virginia State Bar ex rel Second District Committee. (Published Order) Record No. 181603, May 30, 2019. (Virginia Beach Circuit Court); Judith Mara Cofield for Appellant, Sheri Hiter Kelly, Samuel Thurston Towell, Tara Lynn Renee Zurawski for Appellee. VLW 019-6-040, 3 pp.