Thursday, January 17, 2013

Virginia's Rule of Professional Conduct 4.2 -- The Ten Second Rule?

During today's monthly luncheon of the Charlottesville Albemarle Bar Association, Ron Tweel mentioned a very interesting disciplinary case.

The case, Zaug v. Virginia State Bar, is currently pending before the Supreme Court of Virginia.


The Zaug case deals with Virginia Rule of Professional Conduct 4.2.

Rule 4.2 governs communication between a lawyer and a person who is represented by a different lawyer:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
According to a summary of the Supreme Court hearing in the Virginia Lawyers Weekly (here), attorney Zaug spoke on the telephone for less than 60 seconds with a plaintiff in a medical malpractice case in which Zaug's firm represented the defendant. 

Zaug has stated that once she realized who was on the telephone, she told the plaintiff that she could not help her and she needed to call her own lawyer.

A three-judge panel stated that Zaug did not end the call quickly enough and therefore violated Rule 4.2. The panel upheld a district disciplinary committee's “dismissal de minimis” (a finding that a lawyer has engaged in misconduct "that is clearly not of sufficient magnitude to warrant disciplinary action" -- but misconduct nonetheless).

VSB Counsel supported the panel's decision, arguing before the Supreme Court that Zaug's telephone call should have lasted no more than ten seconds, rather than sixty seconds.

The rules of ethics are central to our profession.  That said, I am surprised that the VSB took this position. I fear that they are advocating for a standard that may be impossible to meet.


I think you would be hard pressed to find a lawyer who has not at some point been called by an individual, on the other side of a transaction or claim, who is represented by another attorney.  The prohibition against communicating with those represented by other lawyers is strongly emphasized in law school and continuing education seminars, so when it happens you end the call as fast as you can.

The couple of times it's happened to me, I ended the call and then e-mailed the other attorney, informed him or her of the call, and asked that he inform his client not to communicate with our firm again. I understand that Ms. Zaug did the same.


Ten seconds is a really short period of time, particularly when you spend a significant part of the day answering the telephone.  Picking up the phone multiple times in a row, it can take some time to even process who is calling, let alone why he or she is calling. 

(Maybe I am just getting older, but I feel like all of my reactions/responses are slower than they used to be. Perhaps that is part of my objection to the VSB's position.)

I do not know all the facts of this case, but I think that if Ms. Zaug's position is that she ended the call as soon as she realized the nature of the call, then her response should satisfy the requirements of Rule 4.2. 

The alternative seems to be a de facto requirement that you have to hang up the telephone immediately (or even pre-emptively) -- or face the possibility of the Bar second-guessing your ethics.


Interestingly, some of the Supreme Court justices stated that it might be rude to abruptly hang up the telephone, raising the spectre of a conflict between the twin goals of ethics and civility.

I will be very interested to read the Court's opinion.