Sunday, March 17, 2013

Wherever There is a Human Being, There is an Opportunity for a Kindness


In January we wrote about the case of Zaug v. Virginia State Bar (here).  Today, a follow-up.

First, a brief summary of the facts: After speaking on the telephone for less than 60 seconds with a plaintiff in a medical malpractice case in which Zaug's firm represented the defendant, the Virginia State Bar (and an appellate court) determined that attorney Zaug had violated the Rules of Professional Conduct. 

In particular, the Bar said that Zaug violated Rule 4.2:
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.

Zaug appealed to the Supreme Court, and the Court reversed the appellate court's finding of misconduct.  You can read Justice Mims's decision here.

The Supreme Court has gotten this decision right. Justice Mims emphasizes that lawyers in Virginia are governed both by the ethical canons and by a duty of courtesy to all.

Our society does not put enough emphasis on politeness. I was heartened that Justice Mims bucked the trend. His opinion includes a reminder that the oath taken by Virginia attorneys includes a promise to "courteously demean oneself". 

Here is an excerpt from the decision:
In the course of being admitted to the Bar of this Court, every attorney swears the following oath: 
Do you solemnly swear or affirm that you will support the Constitution of the United States and the Constitution of the Commonwealth of Virginia, and that you will faithfully, honestly, professionally, and courteously demean yourself in the practice of law and execute your office of attorney at law to the best of your ability, so help you God? (Emphasis added). See also Code § 54.1-3903.  
Further, the State Bar publishes principles of professionalism on its website. The preamble states, 
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 and for the public, lawyers should also focus on how they perform their duties. In their very first professional act, all Virginia lawyers pledge to demean themselves "professionally and courteously."  
Virginia State Bar, Principles of Professionalism. The principles state that, "In my conduct toward everyone with whom I deal, I should [r]emember that I am part of a self-governing profession, and that my actions and demeanor reflect upon my profession," and "I should [t]reat everyone as I want to be treated —with respect and courtesy." Id. 
The Virginia Rules of Professional Conduct are precisely what they are described by their title to be: rules of professional conduct. 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.

Happy St. Patrick's Day!