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Law firms are paying close attention to a case in Virginia that may put Palo Alto, Calif.-based Cooley Godward on the financial hook for a hit-and-run car accident involving a former associate. The associate was using her cell phone when she hit and killed a teen-age girl. She, her husband and the firm are being sued for $25 million. Attorneys for the girl’s family say Cooley is responsible because the associate was conducting firm business at the time — an assertion the firm denies. Trial was set to begin Monday in Loudoun County Circuit Court in Virginia. But it was postponed last week at the request of the plaintiffs who sought time to conduct a deposition. Nonetheless, several local firms, hoping to avoid a similar mess, have adopted cell phone policies for their attorneys since the accident. And at least two Washington, D.C., firms — Hogan & Hartson and Wilmer, Cutler & Pickering — have banned the use of hand-held cell phones to conduct firm business while driving. Jeffrey Tanenbaum, the head of Littler Mendelson’s occupational safety and health practice group, said he has written policies for a number of firms in the San Francisco Bay Area. He said the first firm that asked him to do so called in response to the Cooley case. While the policies Tanenbaum has drawn up provide instructions as to the safe use of cell phones, he said, “none of them say, ‘Don’t drive while on the phone.’” But Hogan & Hartson and Wilmer Cutler, based in D.C. where the Wagner accident has received extensive media coverage, went a step further. “We felt like it was important so people understood it was a bad practice,” said George Mayo Jr., Hogan & Hartson’s managing partner of operations. “We read about the accident and realized it could be an issue. It suggested to us that we should be proactive.” Like Cooley, several large firms in San Francisco said they have not adopted policies on cell phone use. Heller Ehrman White & McAuliffe and Orrick, Herrington & Sutcliffe, for example, said they have not considered the issue. Law firms, of course, aren’t the only employers who have cell phone-toting workers. And the case is being watched by employment lawyers who may be asked to chime in on company policies on cell phone use. “Policy-making in this area is not something that’s been discussed a lot yet anywhere,” said Sandra McCandless, an employment partner at Chicago-based Sonnenschein Nath & Rosenthal’s San Francisco office. “We haven’t had this as an issue yet with clients. That’s one of the reasons this case is such big news.” How important the Cooley case is for employers is yet to be determined. McCandless said that would be based on the facts and the size of a verdict. Key facts, she said, are where Wagner was coming from, where she was going, who she was planning to meet, the nature of her phone call and who owned the cell phone. However, Cooley’s attorney, John McGavin, of Fairfax, Va.’s Trichilo, Bancroft, McGavin, Horvath & Judkins, said “the only way” the case could set a precedent is if the Virginia Supreme Court agrees to consider that the circuit court erred in finding an employer has no duty to have a cell phone policy. The Cooley case began in March 2000 when Jane Wagner, an associate in Cooley’s Reston office, struck and killed 15-year-old Naeun Yoon, allegedly while talking on her cell phone. Yoon’s father subsequently filed a $25 million wrongful-death suit against Wagner, her husband and Cooley. Cooley’s liability for Yoon’s death depends on whether Wagner was conducting law firm business at the time of the accident, as the complaint contends. Earlier this year, the court dismissed another claim that Cooley was liable because it failed to have a policy prohibiting the use of hand-held cell phones. “We have a very, very, very strong sense of what the facts are, that we are not liable for damages,” said Mark Pitchford, Cooley’s chief operating officer. “Fundamentally, we don’t believe she was conducting Cooley business when this accident occurred.” McGavin said Wagner had taken the day off and was not on duty at the time of the accident. And he said the person Wagner was speaking to on the cell phone “says categorically” that the call was not about Cooley business. But Yoon’s attorney, Peter Grenier of D.C.’s Bode & Grenier, said Wagner was “acting within the scope of her employment,” thus rendering Cooley liable.

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