LEGAL ETHICS – RULE 4.2, CONTACT WITH REPRESENTED ADVERSARY – 60-SECOND CALL – VICTORY FOR COURTESY AND COMMON SENSE. Maybe this is the kind of thing our society gets…Strike that. Obviously this is precisely what our society, and our profession, get from praising, applauding, and glorying in the much-celebrated “zero-tolerance” policies which encourage the wooden, dictatorial absoluteness, and encourage those in even the lowest positions of power to oppress their fellow humans with a self-righteous and ruthless missionary zeal. The same mind-set is obvious in school teachers and administrators decreeing the ultimate sanctions in their arsenals upon little boys pointing their fingers at others in a supposedly gun-like manner, doing the same with little sausages or half-eaten sandwiches, or bringing a two-inch plastic battle axe from a Crackerjack box to school. As we all know, Disciplinary Rule 4.2 prohibits contact with an unrepresented adversary party, and as careful lawyers know, it has a Comment 3 which adds that that this applies even when the party contacts you, and that when that happens you must terminate the conversation “immediately.” And by now we all know about the nice young lawyer who had to take a call for her partner in his absence, and once she realized who the caller was, referred her to her own lawyer and ended the conversation politely but firmly after about 60 seconds — and was punished for not doing it by hanging up immediately without saying anything. Though it was sustained by the three-judge court, our Virginia Supreme Court reversed that holding on February 28 in Zaug v. VSB , ____Va.____, ____S.E. 2d_____, Record Number 121656. The opinion is very instructive, for in holding that “immediately” does not necessarily mean simultaneously, the Supreme Court patiently and perceptively analyzes the issue, giving good guidance for future cases. The ethics rules and the oath a lawyer takes upon joining the Bar require professionalism and courtesy, and to force a lawyer to suppress even a tiny showing of concern for human misery, and punish her for even the most minimal use of courtesy in refusing to talk to the opponent would require her to violate the Rules, her oath, and the Bar’s recently-adopted “principles of professionalism”. (Never heard of them? Well of course, you have to go to the VSB web site for that.) The facts were partly in dispute at the disciplinary hearing, and the Supreme Court explains that it re-examines all the facts in these cases and the State has the burden of proving the violation by clear and convincing evidence. The Supreme Court after its “independent examination of the entire record” gives the trial court’s conclusions less than the weight of a jury verdict, but will sustain them unless they are “not justified by a reasonable view of the evidence or are contrary to law.” The interpretation of the Rules of Professional Conduct is a question of law, reviewed de novo. Now Comment 3 says the lawyer must immediately terminate the communication initiated by an adverse party when the lawyer learns that she is speaking with that prohibited person. The only exception Comment 3 allows to this is when the represented party is seeking a second opinion or replacement counsel. (Though one does wonder how that would work if this seeker of second opinions, etc., is contacting her present opposing counsel.) The three-judge panel “resolved” the factual dispute by a summary affirmance, without any factual findings and without an opinion. So everything remained for the Supreme Court to resolve. Ms. Zaug admitted that as soon as the call came in she could deduce that it concerned the deposition in this case, which her partner had already left to attend. But the disputed and ambiguous record, the Supreme Court says, “does not disclose when she became aware that the caller was a represented person.” She testified that she did not know that it was Yanira Copcutt, one of the plaintiffs in this medical malpractice case, until the caller started describing the emotional toll the litigation was having on her family. (The lawyer described a sort of cascade of feelings as “an emotional outburst.”) The caller later said in a disqualification hearing that it was obvious from the beginning that the lawyer knew who she was, that the lawyer asked her what was wrong with the deposition she was objecting to, and heard Yanira say she wanted to dismiss the lawsuit. Another lawyer in the office came along in time to hear Zaug’s side of the conversation, only for about the last 30 seconds of the call, and he corroborated Zaug’s version. Actually, the Supreme Court observes, the Bar’s district committee made no findings resolving the factual dispute. The Supreme Court patiently explains, there are three separate facts the Bar must establish for a violation of Rule 4.2: first, that the attorney knew she was communicating with a person represented by counsel; second, that the communication was about the subject of the representation; and third, that the lawyer was not “otherwise authorized by law to engage in the communication”. Since the record does not disclose when Ms. Zaug became aware of who the caller was, a crucial element was not established. Now the district committee’s only fact-finding on the crucial point was that the lawyer “was aware she was speaking with Copcutt either at the time she took the telephone call or concomitantly therewith.” The Supreme Court says only, “We are unable to decipher the meaning of this finding.” It recites Webster’s dictionary definition of concomitant, but to no particularly useful purpose. Anyway, that finding “does not determine whether Zaug knew both (a) the identity of the party with whom she was communicating and (b) the subject of the communication.” And further, “at oral argument, the State Bar conceded that there was no evidence of how much time had elapsed between the instant Zaug knew both pieces of information and the end of the call.” The lawyer testified that she said only “I’m sorry. I can’t help you. You need to try to reach [your attorney]. I’ll try to contact [her colleague] and they’ll have to sort this out,” and hung up. As for the meaning of “immediately” in Comment 3, the State Bar argued that she should have hung up instantly upon realizing who the caller was. Zaug argued “that such conduct would violate the principles of professionalism which infuse and imbue the proper practice of law.” She further argued that “immediately” does not mean “instantaneously,” and that the rule “does not obligate an attorney to hang up on a represented person without regard to courtesy.” The Supreme Court responds simply, “We agree with Zaug.” Being admitted to the Virginia Supreme Court bar, the Court noted, attorneys swear that they will “faithfully, honestly, professionally, and courteously” demean themselves in the practice of law. And the State Bar “principles of professionalism” begin with “from Thomas Jefferson to Oliver Hill, Virginia lawyers have epitomized our profession’s highest ideals. Without losing sight of what lawyers do for their clients… All Virginia lawyers pledge to demean themselves ‘professionally and courteously.’” Those principles of professionalism include a lawyer’s recitation that “I should treat everyone as I want to be treated – with respect and courtesy.” As for the Rules of Professional Conduct, the Supreme Court says, “they exist to further, not to obstruct, the professionalism of Virginia attorneys. Professionalism embraces common courtesy and good manners, and it informs the Rules and defines their scope. Accordingly, we will not construe the Rule to penalize an attorney for an act that is simultaneously non-malicious and polite.” Now the State Bar argued that to permit this young lady’s conduct would create a “distraught caller exception” or a “60-second call exception” to Rule 4.2, “obscuring an otherwise bright-line rule of ethical conduct.” And while the Supreme Court admits that the Rule “categorically and unambiguously … requires an attorney to disengage from such communications when they are initiated by others,” it declares that “the rule does not require attorneys to be discourteous or impolite when they do so.” Supplying some valuable guidance for various future cases that might arise, the Supreme Court noted that this case includes no evidence that the lawyer “intended to gain advantage from it,” and no evidence that she “deliberately or affirmatively prolonged it.” It concludes: “On these specific and narrow facts, in construing Rule 4.2 to advance behavior that is both professional and ethical, we conclude that no violation occurred in this case.”