Lawyers Don’t Have to Be Rude to Opposing Clients

(CN) - A lawyer should not have been disciplined for failing to hang up on a crying woman who was represented by another attorney, the Virginia Supreme Court ruled.

Heather Ellison Zaug and her partner were representing a doctor facing medical malpractice claims from the Copcutt family. As the partner traveled to depose plaintiff Vincent Copcutt, plaintiff Yanira Copcutt called the office and was transferred to Zaug's line.

Zaug said she told Yanira to speak to her own attorney but that the woman resisted her attempt to hang up with an "outpouring of emotion."

The tearful Yanira said the litigation was taking a toll on her family and that her husband's deposition needed to be canceled.

Yanira later spoke to her own attorney, who filed a complaint that Zaug's communication with her client violated the Virginia Rules of Professional Conduct's.

The Fifth District Section III committee found that Zaug had violated the prohibition against an attorney speaking to someone who already has legal representation.

A three-judge panel of the Alexandria-based circuit court then affirmed the committee's decision to impose a sanction of a dismissal de minimis.

The Virginia Supreme Court reversed, however, finding that Zaug should not be punished for failing to hang up immediately on a weeping caller.

"The Virginia Rules of Professional Conduct are precisely what they are described by their title to be: rules of professional conduct," Justice William Mims wrote for the court. "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," he added. "Accordingly, we will not construe the rule to penalize an attorney for an act that is simultaneously non-malicious and polite."

Requiring attorneys to "immediately terminate" such conversations does not mean they should "instantaneously" do so, with no regard for courtesy, the court found.

"The rule categorically and unambiguously forbids an attorney from initiating such communications and requires an attorney to disengage from such communications when they are initiated by others," Mims wrote. "But the rule does not require attorneys to be discourteous or impolite when they do so."

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