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A lawyer, allegedly making business calls from her cell phone while driving, swerves off the road and strikes and kills a teen-ager. Should her firm be held liable? That is now a $30 million question at the heart of the saga of Jane Wagner, a former Cooley Godward associate in Reston, Va. Earlier this month, the father of 15-year-old Naeun Yoon — who was killed last year by Wagner while walking along Route 7 in Great Falls, Va. — filed a wrongful death suit against Wagner, her husband, and Cooley Godward. The crux of Yoon’s claim against the Palo Alto, Calif.-based firm: Wagner not only made business calls around the time of the accident, but Cooley billed clients for those calls. “Defendant Jane Wagner billed numerous hours to clients when traveling outside of the office, even when en route between destinations, and this was done both with the expectation and acquiescence of Cooley Godward and served as a direct benefit to Cooley Godward in the form of increased billable hours,” stated the complaint filed in Virginia’s Loudoun County Circuit Court. The plaintiff’s argument is, of course, unproven, and alleges facts that have not been tested in court. But the implications of Yoon v. Wagner could ripple throughout the legal community, raising questions about lawyers who work at all hours and in a variety of settings, presumably with the approval, if not at the insistence, of their firms. Richard Hibey, head of Winston & Strawn’s Washington, D.C., litigation practice group, believes that Cooley could find itself open to liability. “Basically, if she’s making calls from her car phone or anywhere else in the course of practicing law for the firm … and that conduct is the proximate cause of the injuries and caused in this case the death of that pedestrian, then I don’t think it’s a stretch to hold the law firm liable for that conduct,” he says. “If they chose to bill that, then she’s acting within the scope of her employment,” he adds. Getting into Cooley’s deep pockets will not be easy, though. While some plaintiffs’ attorneys find merit in Yoon’s novel approach, some defense attorneys doubt whether the Yoon family will even get this argument before a Loudoun County jury. “I’m skeptical that they could establish causation,” says Frank Winston Jr., a partner in the McLean, Va., office of D.C.’s Shaw Pittman. “I doubt if the firm directed her to make cell phone calls from her car while driving 50 miles per hour.” GUILTY PLEA The Yoon case immediately captured the public’s attention in March 2000. Wagner, an associate at Cooley’s Reston office and a former law clerk to Fairfax County Chief Judge F. Bruce Bach, was driving home when she hit something she claimed she thought was a deer. It was in fact Naeun Yoon, a student at Langley High School whose family had recently emigrated from South Korea. Yoon died that same night from her injuries. According to the civil complaint, Wagner logged cell phone calls just before, after, and around the time of the accident, and continued to handle work assignments after she arrived home. Wagner soon hired well-known criminal defense attorney Rodney Leffler of Fairfax, Va.’s Leffler & Hyland. With his counsel, she avoided a trial by pleading guilty to failing to stop after an accident. Retired Henrico County Circuit Court Judge James Kulp — brought in to handle the case because of Wagner’s connection to the local bench — sentenced her to five years in jail, with all but a year suspended. The Yoons immediately expressed their dismay with a sentence they considered too light. The wrongful death suit filed by Young Ki Yoon, which asks for $25 million in compensatory damages and $5 million in punitives, appears to be the next step in finding out exactly what happened while seeking the accountability the family feels has been missing. Along with answering to the Yoons, Wagner, who lives in Sterling, Va., may also have to answer to her fellow Loudoun County residents. Yoon’s lawyer, partner James Ludwig of D.C.’s Bode & Grenier, requested a jury trial in the complaint filed on June 14. Ludwig did not return calls for comment. Though Wagner has since lost her job and her law license, Cooley Godward may have to stand in court next to her and her husband. Reston managing partner Joseph Conroy confirmed that he received the papers in the suit last week. Leffler says the Wagners had not been served as of late last week, and no decisions had been made as to who their counsel would be. Cooley Godward has not yet decided whether to retain outside counsel, says the firm’s chief operating officer, Mark Pitchford, a partner in Palo Alto, Calif. “We will defend the lawsuit,” he says. “By what means or through which firm is being determined.” Regardless of how the firm chooses to defend itself, Pitchford is sure the case against the law firm will be dismissed soon. “It certainly goes without saying that the lawsuit arises from a tragic incident, and we certainly hope the family is making strides in overcoming it,” he says. “But we don’t believe the facts or the law will support a judgment.” OTHER OPINIONS Associate law Professor Susan Carle of American University’s Washington College of Law sees the case as the simple application of older legal principles to new workplaces that are being “restructured by new technology.” “I think it’s a pretty good theory,” she says. “It is an interesting extension of the employer liability theories … but it’s not wild, it’s not crazy.” Plaintiffs’ attorney Diane Cooley of D.C.’s Coale, Cooley, Lietz, McInerny & Broadus says that phone records could reveal if Wagner was working on firm business. “I think causation is going to be relatively easy to prove,” she says. Yoon’s bigger problem is with foreseeability, says Cooley. “Did they know this was going on?” she asks. “Did they foster it?” Shaw Pittman’s Winston doubts it. “I don’t think there’s much of a case against the law firm. … I’d be surprised if that question ever got to a jury,” he says. While defense attorney Cynthia Santoni, a partner in the McLean office of Miles & Stockbridge, also thinks Yoon’s case is tenuous, she understands the plaintiff’s argument. “I would be arguing that the law firm is aware that the cell phone is going to be used for business,” she says. “I don’t personally buy it, but I think it’s pretty bright. They certainly would have billed the time.” Even if Wagner was working on Cooley Godward’s business when she hit Naeun Yoon, the California firm may still find a way out of wrongful death liability. Hibey points out that the plaintiffs also would have to prove that Wagner’s phone calls were the proximate cause of Naeun Yoon’s death. Wagner fled the scene following the accident and, according to Yoon’s complaint, the girl still had a pulse when she was found an hour later. She was declared dead approximately two hours after the accident. “What caused her death?” asks Carle. “Was it the initial hit that caused her death? Or was it the negligence of the lawyer in not stopping the car?” Explains Hibey: “Cooley should not be liable for any aspect of [Wagner's] conduct which proximately causes any injury by virtue of her leaving the scene.” If Cooley Godward is slapped with a judgment, the effect on employers across the region could be significant. With cell phone use so commonplace, “people could be working for the employer when the employer’s not really aware of it,” says George Mason University School of Law Professor Lloyd Cohen, who specializes in law and economics. Last week, Cooley’s Pitchford acknowledged that the firm does not have an internal policy on cell phone usage. Cooley, which does not supply its attorneys with cell phones, simply has rules regarding reimbursement for business calls made on personal cell phones. Calls to several other firms indicate that, as at Cooley, policies on cell phone usage are rare, if they exist at all. But the time may have come for firms to address the issue. “Large numbers of your employees could be doing work in the car,” says Cohen. “Who’s driving on the company time?”

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