PRESENT: All the Justices 

HEATHER ELLISON ZAUG 

 OPINION BY 

v. Record No. 121656 JUSTICE WILLIAM C. MIMS 

 February 28, 2013

VIRGINIA STATE BAR, EX REL. 

FIFTH DISTRICT - SECTION III COMMITTEE 

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

Lon Edward Farris, James F. Almand, and 

John J. McGrath, Jr., Judges Designate 

In this appeal of right from a judgment entered by a 

three-judge circuit court in a disciplinary hearing, we 

consider whether an attorney violated Rule 4.2 of the Virginia 

Rules of Professional Conduct. 

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW 

Heather Ellison Zaug is an attorney licensed to practice 

law in the Commonwealth of Virginia and admitted to the Bar of 

this Court. In April 2010, Zaug and Richard L. Nagle, her 

partner, represented a doctor in a medical malpractice action 

brought by Ian, Yanira, and Vincent W. Copcutt. The Copcutts 

were represented by Judith M. Cofield. 

On April 15, Yanira Copcutt (“Yanira”) telephoned the 

firm’s office to speak with Nagle. He could not take the call 

because he was on his way to depose Vincent Copcutt 

(“Vincent”). A staff member transferred the call to Zaug. 

Zaug admits that she knew the call concerned Vincent’s 
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deposition but she denies knowing who the caller was when she 

answered. There is no recording or transcript of the call. 

The parties agree that Yanira was distraught. According 

to Zaug, the call lasted approximately 60 seconds. It is 

undisputed that Yanira told Zaug about the toll the litigation 

was taking on her family and that Vincent’s deposition needed 

to be cancelled. According to Zaug, she apologized and told 

Yanira that she could not help her and that Yanira needed to 

contact Cofield. 

According to Zaug, she then attempted to terminate the 

call but Yanira resisted “with an outpouring of emotion.” 

Yanira said that she had been unable to reach Cofield and that 

she wanted to speak to Nagle. Zaug reiterated that “[w]e can’t 

help you. You need to try to reach Ms. Cofield. I’ll try to 

contact Mr. Nagle and they’ll have to sort this out.” She then 

terminated the call. 

Another attorney at the firm witnessed part of the call. 

The witness testified that it lasted about 30 seconds from the 

time Zaug realized who the caller was and corroborated her 

recollection of her side of the conversation from that point 

forward. 

According to Yanira, Zaug addressed her by name when she 

answered the call, saying, “Hi, Mrs. Copcutt.” Yanira told 

Zaug that Vincent’s deposition needed to be cancelled. When 
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Zaug asked what was wrong with the deposition, Yanira started 

crying, rambling, and describing the emotional difficulties 

associated with the injury caused by Zaug’s client’s alleged 

malpractice. Further, Yanira told Zaug that she wanted to 

dismiss the lawsuit.1

After Vincent’s deposition, Yanira told Cofield about her 

conversation with Zaug. Cofield thereafter filed a complaint 

with the Virginia State Bar (“the State Bar”) in which she set 

forth Yanira’s account of the conversation. The State Bar 

issued a charge of misconduct alleging that Zaug had violated 

Rule 4.2 of the Virginia Rules of Professional Conduct. 

The charge of misconduct was heard by the Fifth District 

Section III Committee pursuant to Paragraph 13-16 of Part 6, 

Section IV of the Rules of this Court. After a hearing, the 

district committee issued a determination that Zaug’s conduct 

constituted a violation of the Rule. The district committee 

imposed the sanction of a dismissal de minimis. 

Zaug appealed the district committee’s determination to 

the circuit court pursuant to Paragraph 13-17(A) of Part 6, 

 1

 Yanira testified at a hearing to disqualify Zaug as 

counsel in the underlying litigation. Nagle objected that her 

description of Zaug’s statements was inadmissible hearsay. On 

the basis of Cofield’s response that the statements were not 

offered for the truth of the matter asserted, the circuit court 

overruled the objection. Accordingly, the parties to this 

appeal dispute the evidentiary value of Yanira’s testimony for 

the purpose of the disciplinary proceeding. For the reasons 

stated herein, we do not address this question. 
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Section IV of the Rules of this Court. Sitting by designation 

pursuant to Code § 54.1-3935(B), a three-judge panel of the 

court affirmed the findings of the district committee and the 

sanction of a dismissal de minimis. Zaug perfected a timely 

appeal of right from the court’s judgment pursuant to Code 

§ 54.1-3935(E) and Rule 5:21(b)(2)(ii). 

II. ANALYSIS 

When we review a lawyer discipline proceeding, “the State 

Bar has the burden of proving by clear and convincing evidence 

that the attorney violated the relevant Rules of Professional 

Conduct.” Weatherbee v. Virginia State Bar, 279 Va. 303, 306, 

689 S.E.2d 753, 754 (2010) (citing Barrett v. Virginia State 

Bar, 272 Va. 260, 268 n.4, 634 S.E.2d 341, 345 n.4 (2006); Blue 

v. Seventh District Committee, 220 Va. 1056, 1062, 265 S.E.2d 

753, 757 (1980); Seventh District Committee v. Gunter, 212 Va. 

278, 284, 183 S.E.2d 713, 717 (1971)). 

We conduct an independent examination of the 

entire record. We consider the evidence and all 

reasonable inferences that may be drawn from the 

evidence in the light most favorable to the Bar, 

the prevailing party in the trial court. We 

accord the trial court’s factual findings 

substantial weight and view those findings as 

prima facie correct. Although we do not give 

the trial court’s conclusions the weight of a 

jury verdict, we will sustain those conclusions 

unless it appears that they are not justified by 

a reasonable view of the evidence or are 

contrary to law. 
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Id. at 306, 689 S.E.2d at 754-55 (quoting Anthony v. Virginia 

State Bar, 270 Va. 601, 608-09, 621 S.E.2d 121, 125 (2005) 

(internal quotation marks and citation omitted)). The Virginia 

Rules of Professional Conduct are Rules of this Court. See

Code § 54.1-3909. The interpretation of such Rules is a 

question of law we review de novo. LaCava v. Commonwealth, 283 

Va. 465, 469-71, 722 S.E.2d 838, 840 (2012). 

Rule 4.2 of the Virginia Rules of Professional Conduct 

states that “[i]n 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.” The commentary 

provides guidance for interpreting the scope and meaning of the 

Rule. Comment 3 states, 

[t]he Rule applies even though the represented 

person initiates or consents to the 

communication. A lawyer must immediately

terminate communication with a person if, after 

commencing communication, the lawyer learns that 

the person is one with whom communication is not 

permitted by this Rule. A lawyer is permitted 

to communicate with a person represented by 

counsel without obtaining the consent of the 

lawyer currently representing that person, if 

that person is seeking a “second opinion” or 

replacement counsel. 
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(Emphasis added.) Further, Comment 4 states, in relevant part, 

“This Rule does not prohibit communication with a represented 

person . . . concerning matters outside the representation.” 

Viewed in the light of the commentary, it is clear that 

the Bar must prove three separate facts to establish a 

violation of the Rule: (1) that the attorney knew that he or 

she was communicating with a person represented by another 

lawyer; (2) that the communication was about the subject of the 

representation; and (3) that the attorney (a) did not have the 

consent of the lawyer representing the person and (b) was not 

otherwise authorized by law to engage in the communication. 

While the first two facts may occur in any order, both must 

occur before an attorney violates the Rule. 

Zaug admits that she was aware of the subject of the 

telephone call when she answered it, and this is reflected in 

the district committee’s factual findings. However, the record 

does not disclose when she became aware that the caller was a 

represented person. Although Yanira testified at the hearing 

on her motion to disqualify counsel that Zaug addressed her as 

Mrs. Copcutt when she answered the call, thereby indicating 

Zaug knew the identity of the caller at the time she answered, 

Zaug denied knowing the identity of the caller until Yanira 

described the emotional toll the litigation was having on her 

family. 
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The circuit court made no factual findings and merely 

affirmed the district committee’s determination. However, the 

district committee made no finding resolving this dispute of 

fact. To the contrary, the district committee found only that 

Zaug “was aware she was speaking with Copcutt either at the 

time she took the telephone call or concomitantly therewith.” 

We are unable to decipher the meaning of this finding. 

“Concomitantly” means “in a concomitant manner.” Webster's 

Third New International Dictionary 471 (1993). “Concomitant” 

means “accompanying or attending esp[ecially] in a subordinate 

or incidental way[;] occurring along with or at the same time 

as and with or without a causal relationship.” Id. 

Accordingly, the finding does not determine whether Zaug 

knew the identity of the caller when she answered or soon 

thereafter. Consequently, this finding does not answer the 

question of when Zaug knew both (a) the identity of the party 

with whom she was communicating and (b) the subject of the 

communication.2

 Further, at oral argument, the State Bar 

conceded that there was no evidence of how much time elapsed 

between the instant Zaug knew both pieces of information and 

the end of the call. 

 2

 The district committee found that Zaug knew Copcutt was a 

represented person and that Zaug neither had Cofield’s consent 

nor was authorized by law to engage in the communication. 

Those facts are not in dispute. 
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Nevertheless, “[w]e conduct an independent examination of 

the entire record.” Weatherbee, 279 Va. at 306, 689 S.E.2d at 

754. Zaug testified that she answered, “This is Heather, how 

can I help you?” The caller responded, “I need to speak with 

Mr. Nagle. The deposition needs to be cancelled.” Nonplussed 

by the response, Zaug then said, “This is Heather Zaug. I work 

with Mr. Nagle on the case. Who is this? How can I help you?” 

At that point, according to Zaug, Yanira began her emotional 

outburst, stating that the litigation was too much for her 

family. Zaug then knew the identity of the caller. 

According to Zaug, she then said, “I’m sorry. I cannot 

help you. You need to try to speak with Ms. Cofield. Have you 

tried to reach Ms. Cofield?” Yanira’s emotional outpouring 

continued for an unspecified number of seconds before Zaug 

concluded the call by stating, “I’m sorry. We can’t help you. 

You need to try to reach Ms. Cofield. I’ll try to contact Mr. 

Nagle and they’ll have to sort this out.” Zaug’s witness 

testified that this interval lasted no longer than 30 seconds. 

The dispute between Zaug and the State Bar focuses on this 

uncertain period of time. 

Both parties argue the meaning and intent of the word 

“immediately” in Comment 3. The State Bar argues that Zaug 

violated the Rule when she failed to terminate the call by 

hanging up during Yanira’s emotional outburst. Zaug argues 
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that such conduct would violate the principles of 

professionalism which infuse and imbue the proper practice of 

law. “Immediately,” she contends, does not mean 

“instantaneously,” and the Rule does not obligate an attorney 

to hang up on a represented person without regard to courtesy. 

We agree with Zaug. 

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, 

http://vsb.org/pro-guidelines/index.php/principles/ (last 

visited Jan. 10, 2013). The principles state that, “In my 

conduct toward everyone with whom I deal, I should [r]emember 
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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. 

The State Bar argues that to permit Zaug’s conduct creates 

a so-called “distraught caller exception” or a “60-second call 

exception” to Rule 4.2, obscuring an otherwise bright-line rule 

of ethical conduct. We agree with the State Bar that attorneys 

must understand that they are ethically prohibited from 

communicating about the subject of representation with a person 

represented by another attorney unless they have that 

attorney’s consent or are authorized by law to do so. 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 
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others. But the Rule does not require attorneys to be 

discourteous or impolite when they do so. 

In this case, it is undisputed that Zaug did not initiate 

the telephone call. There is no evidence in the record, and 

the State Bar does not assert, that Zaug intended to gain 

advantage from it. Likewise, there is no evidence that Zaug 

deliberately or affirmatively prolonged it. On these specific 

and narrow facts, and construing Rule 4.2 to advance behavior 

that is both professional and ethical, we conclude that no 

violation occurred in this case. For these reasons, we will 

reverse the judgment of the circuit court, vacate the sanction 

imposed, and dismiss the charge of misconduct. 

Reversed, vacated, and dismissed.