VIRCÎÏNIA:

IN T]IE C]RCUIT COURT FOR IllE CHY Ol VIRGINI.\ BE.AC[I

VIRGINIA STATE BAR EX RIÍI.SF,C'ONI) I)IS I RICT COMMI ITF.EVS[3 Docket No. 17-()22-109258

('ase No. Cl.1 8-2692

Jl-'I)ITH MARA COFIELD

311(11()1~~\NDUM ()RDER

I-I [IS MATTER came to be heard on September 27.20 l 8. belore a Three-Judge Courtcl,ily impaneled p,irsuant to Section 54.1-3935 oi the Code ofVirginiu. 1950. as amended.

consisting of-Ihe llonorable Bradley B, (':t,edo, Judge ofthe Ihirteenth Judicial Circuit. Chief

Judge presiding (-"('hief.Iudge' ). The Honorable Robert H. S:i,id\, ich. Jr,. Judge ofthe Fifth

Judicial Circuit, and The Honorable Victoria A.13, Willis. Judge oí the Filteenth Judicial Circ,iit

(collectivel> the "Panel '). The Virginia State Bar L,1~pearcd through Senior Assistant Bar

C'oiinsel M. Brent >;aunilers. .hklitlì Mara Cofield ('-Respondent") appeared in person aiid

proceeded pro se.

\VI ll{I{I<l 'PON, a hearing u as conducted ilpon tile Rule to Show Cause issued against

Respondent on June 13.2018. directing Responde,it to :ippear and showcause why her license to

pr:,ctice law in the ('ommonwealth ol Virginia should not be si,spemled or revoked. or wh> she

should not otlierwise be sanctioned. by reason ofallegations oí ethical misconduct set forth in the

Charge of Misconcluct issued on April 26. 2018.

I he ('hieí'Judge swore the court reporter and pc,1 led the members ofthe ! anel to

determine whether any member had a personal or financial interest that might aITect orreason:ib]\ be perceived to affect his or her ability to he impartial in these matters. Each

member, including the Chief Judge, verified they had iìo such inteiests,

l he Paiìe 1 admitted the bar's exhibits and Respondent's exhibits into ez iclence z, itliout

objection.

[ he parties presented opening statements.

1-lie bar presented additional eviclence in the fonn ol-testitìic,iì>' from two witnesses.

1 ollowing the conclusion ol the bar's case. Respondent moved ti, strike tile bar s

e, idence as to the allegations ol ethical misconliuct set tì,rth in the Charge ol Misconduct issued

on April 26.2018. and in support thereof. submitted a trial menic,randum. Following arguments.

the Panel retired to deliberate. Following deliberation, the Panel reconvened and announced that

the motion was overr,iled to which Respondent excepted.rRespondent presented additional e, idence in the form oftestimony fiom witnesses

including herself.

t\t the conclusion ofResponllent' s evidence. Respondent renewed her motion to strike.

Based on the stipul:ìti<,iì of the parties. it was agreeil th:,t Respc,ndent's tenened motion to strike

the evidence K üuld be argzied at the same time that the parties made closing arguments.Following arguments. the panel recessed to deliberate.

Following deliberation, and upon consideiation of the e, idence and argument presented.the Panel overruled the renewed motion to strike and iltianimc,usly fì,imd b> clear and convincingevidence the following material facts:

1 :\C r FINDINGS

1. At aH times relevant hereto. Respondent was an attorney liceiised to practice law in theCommonwealth of Virginia.

Respoiideiit represented the pl:lintiíl'in a medical malpractice case she filed in theNorfolk Circuit Court i,i 2016 (( 'aphire /'rice, v. DavhlC Å-li.Çhner,.IL D and jícdic,d kernerRadio/ogix/s, Case No. CL 16-372)'.1 The case Has brought in the name of tlìe mother as next friend of her mmor son Cmmor')

3. During the litigation ofthe case. Respondent issued a deposition notice to a non-partyhospital where the minor had been treated in which she demanded that it make available a

hospital representative kno\~ ledgeable about accessing the niínor's electronic health records onthe hospital's portal.4. Ihe hospital responded to the deposition notice by indicating it would allou access to itsport:IL but woulcl charge a fee for the costs associated with making a representative available toassist with providing access to the minor's electronic health records located on its portal.5. On Noumiber 22.2016. Respondent lìlecl a pleading titled - Plainti ft-s Motion and Noticein Opposition to Assiglimelit of I)eposition ('c,sts." i!1 ~hich she objected to the hospitalcharging fees for facilitating access to the electronic health records located on its portal andasserted that the charging ofsuch fees was prohibited by the l Iealth Insurance Portability andAccountability Act (-1 IIPAA") and federal regulations implementing HIPAA.

ln support of that assertion, Respondent recited what she represented to be a prcn'isic,n oíthe Code oi Federal Regulations allon ing a provider to charge iees for the transí'erring ofelectronic protected health inlormation (-PI Il') to a neh-based portal c,iìly where the PHI is notalready located and accessible on such a portal. Specifically, she represented that 45 CFR164.524(c)(3) and (4) contained the Íollou ing sllbpart: "The fee ma> onlv (emphasis in theoriginal CFR) include costs of ...(5) transferring (e.g.- uploading. downloading. att:iching.burning) electronic Pl H to a web-based pc,ttal (\\Iieic the PIll is not alre:idb niaintained in or:icce,isil)le through the portal).See, [sic] CI ]{ 164.524(c)(3) and (4)." Iii subsequent pleadingstitled "Motion in Reply to Assignment of I)eposition Costs- she filed on December 5. 2016 and"Final Motion in Reply to Assignment of Deposition Costs" she filed on December 19.2()16.Respondent again included that skime language and cited it as a fifth subpart ofthe CFR insupport i,i her :lrgument that the Iìospital could not charge any fees for providing access to theelectronic PHI since it was already located on the hospitals provider portaL6. lhe CFR cited by Respondent contains only four subparts (i - iv) :ind not a suhpart (\ )(or (5)) or the language Respondent cited as a fifth subpart ol the CFR.

7. By letter dated December 21.2()16. The l lonorable Mar>' Jane [ lall (--J,idge Hal]"). thej,Klge presiding over the case. notified Respondent that her review oí-45 CFR 164.524( c)( 3) iìnd(4) did not include tlìe sllbparagraph (5) Itespondent had cited in her pleadings ..which isobviously the one that would be germane to the instant niotion." Judge I iall asked Respondentfor ali explaniìtion oí why she had included a non-existent subparagraph.8. In response. by cover letter dated December 24.2016. Respondent filed what she titled~Plaintiírs Clarification." which consisted ofa printout from the 1-1.S. I)ep:irtment of I lealth andHuman Services ("HI IS") website perlaining to i HPA.,\ rules and regulations. The printoutincluded a "Questions and Answers" section discussing the fees a provider may charge forpro,iding access to PHI which contained the language 1{espoliflent had cited as a subpart (5) iìtthe CFR. Respondent did not claim error cir niistake for the manner she had presented thatlanguage in her pleadings nor provide any explanation for \,h> she had cited it as a fifth subp:irtoi the CFR in those pleadings.

9. By letteropinion dated .Ianuar> 4.2017. Judge I l:,llruled that tlìe hospital could charge a

reasonable fee for making un employee a, ailable to perform the tasks necessary to facilitateaccess to the pro, ider porti,1. 111 So ruling. she specifically found, inter ulia. the CFR cited byRespondent does not contain a fifth sitbparagraph which was the "only one germane to thismotion." and that Respolillent'S presentment oithe CFR as having a fifth subparagraph in herpleadings describeld I the regulation as having an extra provision that it does not have" whichconstituted "misrepresentations of the textof 45 CFR 164.524(c). ..

10. Iii each of Respondeiit's pleadings ideiitifieil in piraizr:ìph íive above, she: i) listed whatshe represented was a fifth subpart olthe CFR along with the fuur actual numbered subparts ofthat Cl'R: ii) cited that CFR; but iii) did not cite or reference the IlllS website despite knowingthat was the source ol tlie language she identified as being a fifth subpart ofthe C'l- R.

MISCONDUC [ FINDINGS

[he Panel unanimously loimd Linder the clear and convincing evidentiary sti,ndard that the

manner Respondent presented the language from the l H ]S website in her pleadings was intentional

and constituted kliou ingly false statements ofthe content oí 45 CFR 164,524(c)(4), in that she

presented that language as a sequentiallj numbered subpart ol the CFR along with the four actual

numbered suhparts ofthe ('1-R and cited to the CFR but made no citation or reference to the IHIS

website - all witli knowledge that the CFR did lic)t Cl,ntaill that language or a fifth suhpart and that

thc HHS website was the source ot that [:inguage - in violation otthe lììllo\\ing provision of the

Virginia Rules oí Professional Conduct:

RLILE 3.3 Candor Toward The 1-ribunal(a) A lawyer shall not knowingly:(1) make a false statement of fac t or law to ati ibunal

lhe panel unanimously fuund that the evidence failed to show under the clear anc!

cc,nzincing evidentiary standard that Respondent violated Rule 1.1 c,ftlie 1<ules oí'I'rc,Í'essional

Conduct. and accordingly dismissed that charge.SANCTION

Fhe Panel then proceeded to the sanctions phase oí the hearing and received evidence and

argument from the bar and Respondent. following which the Panel retired to deliberate.

4

Following deliberation. and after due consideration oftlie evidence, including the nature otthe

ethical niiscond,ict committed by Respondent. and the aggravating and mitigating factors

including the character and other evidence submitted i,Iì beh:,lí ol I<espondeiìt. and the

arguments presented. the Panel reached the unanimous decision that Respondent should receive

an Admonition ancl Respondent is hereb> so admonished.

Pursuant to l art Six, Section IV. Paragraph 13-9 ofthe Rules oí the Supreme Coiirt oí

Virginia. the (']erk ofthe I)isciplinary %>'steni ofthe Virginia State Bar shall assess costs.

The Clerk of this Court shall send a copy tem oi this order to: Respondent at JM Cofield,

P.C., 1349 S>caniore Rd. Virginia Beach. VA 23452: M. Brent Saunders. Senior Assistant BEIi

Coi,nsel. Virginia State Bar, 1111 East Main Street, Suite 700. Richmond, Virginia 23219: and

the Clerk of the Disciplinary System. Virginia State Bar. 1111 East Main Street. Suite 7()(),

Richmond. Virginia 23219.

I hese proceedings were recorded h> Biggs & Fleet. I.td.. 125 St. Pa,il s Blrd., #3()9.

Norfolk, V,A 23510, telephone number (757) 622-2()49.

ENTERED this 7 day of 0*dl'lkr , 2018.

AI/ÓlT* I Ion*ible Bradley B. Cavedo('Ílie I' Jlli~ge

5

SEEN:VIRGINIA STA I li BAR

By: 'l/'L --jtgf>U -S-DM, Btent Saìinllers, EkquireSenior Assistant Bar Counsel

SEEN ANI)

Judith Mara C olieldRespondent

6

SEEN:V IRG IN IA STA 1 E BAR

Bv:M. Brent Saunders. EsquíreSenior Assistant Bar Counsel

SEEN AND C-Ý*Íb-ù7-8 TZ)L CQLL-\-*{Cbê Í~.~CttOUS ÇQT: P~týñ-( 2,ÚÁ/ \1\1( ' ,tK.(jO)~t~fe k ÅI ~t~Gr 1 %2018-1 *- c<*i,l (itjl2-T ~ lk~ 7 /ti-

d- ,LKIÁ c,Judi~~*Íar~4j~l hqRespon~eni

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6

JUDITH M. COFIELD, P.C.1349 Sycamore Rd

Virginia Beach, VA 23452

Phone (757) 422-4858 Fax: (757) 2827747October 18, 2018

Judge Bradley B. Cavedo400 North Ninth StreetJohn Marshall Courts BuildingRichmond, VA 23219

Re: Letter Memorandum

Dear Judge Cavedo:

Enclosed please find two (2) versions of the Trial Memorandum; one drafted bymyself (which I have endorsed) and one by Mr. Saunders. I write to request you enter myversion for the reasons stated below. These issues / exceptions were made known to Mr.Saunders by several emails; we have agreed to disagree. Please note that all referencesto paragraph numbers are the same in both counsels' drafts until paragraph 11, which isthe only numbered addition and which recitation of testimony is wholly omitted by the Bar.

***************

pg 2 Mr. Saunders failed to mention my filing of a Trial Memorandum and referencedthree (3) witnesses, when, in fact, there were four (4) called in Respondent's case (myself;Messr. Gravely and Troy and Ms. Mitchell). l also corrected the style of the underlyingcase, to reflect that filing in the malpractice case, as the only party-in-interest was theminor, Dylan,pg 3, para. 3 Mr. Saunders' recitation fails to mention that in the underlying malpracticecase Plaintiff s Motions carefully delineated a patient's substantive right of access (underHIPAA) to his own digitally stored clinical chart from the facility's administrative system,pg 3, para. 4 Most importantly, Mr. Saunder's version omits the legal issues pendingbefore Judge Hall - a rather substantive omission, since the Charge is based on

misrepresenting the law in a then pending issue. He also fails to mention that the hospital,as evidenced by testimony and filings in the Norfolk Circuit Court opposed any computeraccess, as proven by the bar's own Exhibits. See, Bar Exhibits 4,5 and 6 to the Charge.

pg 3, para. 5 Mr Saunders' version fails to mention multiple citations to the Privacy Rule,which serves as an introductory sentence to the offending fifth paragraph. This is asubstantive omission, as The Privacy Rule governs how costs areassessed undertheCFRand the charge is that I misrepresented the law. Mr, Gravely's uncontroverted explanationwas thatthe Privacy Rule and the HSS websitecontain authoritative, notadvisory, opinionsopinions which interpret / expand the four (4) static paragraphs of 45 CFR §164.524. Isubmit it is improper to omit the language on which this Charge was / is defended.

page 2

pg 3, para. 6 The labor charge discussed is referenced in paragraph 5 - NOT as a

subpart of the CFR - which even Judge Hall recognized in both her inquiry letter ofDecember 21, 2016, see, BarandRespondent Exhibit D, andher opinion letter of January4,2017. See, Barand Respondent ExhibitA. Mr. Saunders repeatedly altered the Court'sown language, which is disconcerting. He has agreed to change it in some, but not allparagraphs.

pg 3, para. 7 For example, in para. 5,6,7,8,9 and 10, Mr. Saunders changes JudgeHall's inquiry letter to say 'subpart' when she appropriately questioned the source of thefifth sub-paragraph. Yet, neither myselfnor the Court spoke of a sub-part to the CF; thislanguage does NOT appear in the pleadings, nor in the Court's inquiry letter, nor its letteropinion. See, e.g., Bar Exhibit A "January 4, 2017 opinion lettef' atpg. 4, which identified"subparagraphs' - which, indeed, exist.

pg 3, para 8 Mr. Saunders includes a reference to J. Hall's letter asking about the sourceof the language in paragraph 5, but fails to mention Respondent's reply / filings withChambers and the Clerk of Court, which identified the source of paragraph 5 as liftedverbatim from the HSS website.

pg 3, para 9 Mr Saunders paraphrased the trial court's rulings, which Respondent'sversion lifts verbatim from her opinion letter; e.g, again: subparagraph to "subpart'

Pg. 4, para 11 The bar fails to mention the expert testimony from Mr. Gravely, which wasuncontroverted. This is a material omission, as it shows the language in 115 was controllinglaw.

It is respectfully submitted that a trial Memorandum should not alter, nor omitmaterial evidence, regardless of which party it favors. For these reasons, I respectfullyrequest this Court either enter Respondent's version of the Trial Memorandum.

Re-s~~tfy~1*Submitted,1/>Iudýhbig~ei~--7cc: Clerk of the Virginia Beach Circuit Court

Mr. Brent Saunders, Esq.