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Discipline for a Phone Call

In April, Italian police arrived at the Colosseum in Rome. They had orders to remove the men dressed up as Roman soldiers, who were having their pictures taken with tourists. Italy’s culture ministry had decided that they were not going to allow these men in red skirts and helmets, with their tunics and swords;  to harass the tourists for money and cheapen the image of these historical figures by not being in full costume.

An eviction notice had been issued because none of these men had the necessary permits for their money-making activities.  As the police began to remove the costumed centurions, at least 25 of the “warriors” began to fight with the police. Soon, onlookers started to take sides. They began to chant, “Leave them alone. We are all centurions”.

I just received my Virginia Lawyers Weekly by mail. On the front page is an article titled “Lawyer disciplined for 60-second call”.

On April 15, 2010, an associate for a defense firm that was defending doctors in a birth injury case; received a phone call. On the other line was one of the plaintiffs . She blurted out details of how the lawsuit was working a hardship on her family and how she and her husband “desired to dismiss the case”.

The uncontradicted facts were that the phone call lasted about one minute. The defense lawyer told her that she could “not help her and she needed to contact her own attorney”. The defense attorney notified her co-counsel at the firm of the call. He notified the plaintiff’s attorney that the client had contacted them directly and he relayed what was said and the length of the call.

Plaintiffs attorney filed a motion to have the lawyer disqualified from defending the case. The presiding Judge denied that motion.  Then, she filed a bar complaint against the defense lawyer under the premise that the lawyer had violated rule 4.2 of the Rules of Professional Conduct. That rule basically says that a lawyer can have no communication with the opposing party who is represented by another lawyer.

The bar complaint made it to the disciplinary committee, which determined that the defense lawyer should receive a dismissal de minimis. That means that there was a finding of misconduct but not enough to warrant disciplinary action against the lawyer.

Despite the dismissal, the defense lawyer was not satisfied. Such a finding, even though very minor, still becomes part of her disciplinary record, So, she exercised the right to appeal to a three-judge panel. They upheld the finding the of the committee. The finding was that the defense lawyer should have just hung up immediately.

The bar had argued that “good intentions do not excuse a lawyer from a finding that she violated a Rule of Professional Conduct”.   The disciplined lawyer concluded the article with a quote to the reporter by saying that the actions she had taken were exactly what the Virginia State Bar “instructs a lawyer to do, and it underscores the absurdity of the Bar’s determination to prosecute me for how I handled a surprise, unsolicited 60-second phone call”.

Since this involves a finding of the bar, I will not add any editorial.

Of course this is completely unrelated, but do you happen to know where the expression came from “Whistling Past the graveyard“?

For pic o’, I can’t remember if I ever got around to posting this!


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