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Fairfax lawyer’s one-minute call was misconduct

The Virginia State Bar found a defense lawyer committed misconduct by taking a one-minute phone call from a plaintiff in a medical malpractice case.

Heather E. Zaug got the call from Yanira Copcutt at her Fairfax law office on April 15, 2011. Copcutt, unable to get her own lawyer on the phone, complained about the strain of the lawsuit on her family and how she and her husband wanted to dismiss the case.

Zaug was on the legal team defending health care providers in a birth injury case. Copcutt, one of the plaintiffs, blurted out that the lawsuit was working a hardship on her family and she and her husband “desired to dismiss the case,” according to the findings of a bar disciplinary committee.

Zaug allegedly remained on the line approximately a minute, according to the committee findings. According to her lawyer, Zaug promptly responded that she could not help Copcutt.

“You need to talk to your lawyer,” she said before hanging up the phone, according David Ross Rosenfeld of Alexandria, Va., who represented Zaug.

Zaug notified her co-counsel, who was then on his way to a deposition, so the matter could be handled with opposing counsel, according to Rosenfeld.

The phone call soon became a side issue in the malpractice case. The plaintiffs’ lawyer, Judith M. Cofield of Virginia Beach, Va., moved to have Zaug disqualified from the case. Cofield also filed a bar complaint against Zaug.

The effort to disqualify Zaug was unsuccessful. But the bar complaint was a different matter.

An eight-member district committee found Zaug had committed misconduct in violation of Rule 4:2 of the Virginia Rules of Professional Conduct, which generally bars communication about a case with another party who has a lawyer.

The committee determined Zaug should receive a dismissal de minimis, a finding that a lawyer has “engaged in misconduct that is clearly not of sufficient magnitude to warrant disciplinary action” and the lawyer has “taken reasonable precautions” against a recurrence.

Despite the dismissal, Zaug was not satisfied. The discipline panel had made a public finding of misconduct. As Rosenfeld noted, a dismissal de minimis becomes part of a lawyer’s disciplinary record. It can be used to keep a lawyer off bar disciplinary board and district committees.

Zaug appealed the finding to a three-judge panel, which affirmed.

The bar’s complaint did not focus on how Zaug handled the call after it was over. Senior Assistant Bar Counsel Seth M. Guggenheim argued Zaug simply should have hung up “immediately, not eventually” under rule 4:2.

Guggenheim conceded the violation was likely inadvertent and never sought more than the minimum sanction.

Rosenfeld said the same thing could happen to any criminal lawyer or litigator.

“It’s not difficult at all for someone to get a direct line to the attorney,” he said. “This kind of thing happens with some frequency.”

Peter Vieth writes for Virginia Lawyers Weekly, a sister publication of The Daily Record.

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