V I R G I N I A:

IN THE CIRCUIT COURT FOR THE CITY OF ALEXANDRIA

VIRGINIA STATE BAR, ex rel.
FOURTH DISTRICT (SECTION II)
COMMITTEE

Complainant/Petitioner


v. IN CHANCERY NO. 021034


TARA MARIE McCARTHY

Respondent

AGREED ORDER


THIS MATTER came before the Three-Judge Court empanelled in this matter by designation of the Chief Justice of the Supreme Court of Virginia, pursuant to Section 54.1-3935 of the 1950 Code of Virginia as amended. A fully endorsed Agreed Disposition, dated the ____day of November, 2002, was tendered by the parties, and was considered by the Three-Judge Court, consisting of the Honorable James W. Haley, Judge of the Fifteenth Judicial Circuit and Chief Judge of the Three-Judge Court, the Honorable Richard D. Taylor, Jr., Judge of the Fifteenth Judicial Circuit, and The Honorable Arthur W. Sinclair, Retired Judge of the Nineteenth Judicial Circuit.
Having considered the Agreed Dispositions, it is the decision of the Three Judge Court that the Agreed Disposition be accepted, and the Court finds by clear and convincing evidence as follows:

1. At all times relevant hereto, Tara Marie McCarthy, Esquire (hereafter "Respondent"), has been an attorney licensed to practice law in the Commonwealth of Virginia.

2. The Respondent was counsel for Suzanne Yaras, one of the Defendants in a medical malpractice action in the Circuit Court for the City of Alexandria, brought by Bette Wilson, Guardian for her daughter, Kanika Wilson, Law No.99-0084.

3. On January 27, 2000, the Respondent, pursuant to the Rules of the Supreme Court of Virginia and to the scheduling order in the case, designated four individuals as expert witnesses on behalf of Defendant Yaras on the issues of standard of care and causation. The individuals so designated included Erin Foley, MD, and Louise Hershkowitz, CRNA.

4. In the designation of expert witnesses the Respondent represented with respect to Ms. Hershkowitz that she would testify on behalf of Defendant Yaras that Yaras met the standard of care regarding the administration of anesthesia, that the monitoring of Plaintiff Wilson during the course of the medical procedure was within the appropriate standard of care and that the resuscitation procedures eventually employed on Plaintiff Wilson were within the appropriate standard of care.

5. In actual fact, prior to such designation, the Respondent had been advised by Nurse Hershkowitz that she had a number of areas of concern about the standard of care provided to Ms. Wilson by Defendant Yaras, and that the care of the patient by Defendant Yaras failed to meet the standards of care of nurse anesthetists in a number of areas, including, but not limited to those described in Paragraph Four above. Hence, the description of the testimony as set forth in the designation of witnesses by the Respondent, which the Respondent represented as being the opinions of Nurse Hershkowitz, and what she would testify to as an expert, was misleading and contrary to certain of the actual opinions directly stated to the Respondent by Ms. Hershkowitz concerning the standard of care provided by Defendant Yaras.

6. The Respondent asserted with respect to Dr. Foley that she would testify as follows:
a. the anesthetic agent used in this case was appropriate;
b. the injuries complained of were not due to the lack of care or diligence on the part of Suzanne Yaras;
c. Suzanne Yaras's qualifications rendered her appropriately skilled and trained as a nurse anesthetist;
d. the equipment used by Suzanne Yaras seemed appropriate;
e. Defendant Yaras complied with the applicable standard of care in managing and assessing that the equipment was safe to use; and
f. Defendant Yaras's monitoring of Kanika Wilson's clinical status and her resuscitation were all within the standard of care and did not proximately cause any damage to the Plaintiff.

7. Prior to the designation of Dr. Foley by the Respondent as an expert witness for Yaras, Dr. Foley had advised the Respondent in a telephone conversation that, in her professional opinion, the care provided by Yaras failed to meet the requisite standards of care.

8. Subsequent to such designation by the Respondent, counsel for Plaintiff Wilson made numerous requests to schedule the depositions of Hershkowitz and Foley. Shortly before their scheduled depositions (scheduled by court order), both individuals were withdrawn as experts by the Respondent.

9. Prior to the time of such designation Dr. Foley had advised the Respondent that she would not testify as an expert on behalf of Defendant Yaras. Further, Ms. Hershkowitz had advised the Respondent that she would not testify to all of the opinions set forth in her designation. Therefore, the designation by the Respondent of Dr. Foley as an expert who would testify on behalf of Defendant Yaras was false, and known by the Respondent to be false at the time such designation was made. The designation by the Respondent of Ms. Hershkowitz as an expert who would testify on behalf of Defendant Yaras was false in part, and known by the Respondent to be false in part at the time such designation was made.

10. As a result of the false and misleading designation of individuals as experts for the Defendant when those individuals had not consented to testify on behalf of the Defendant, as well as the false and misleading statements concerning the content of the professional opinions of the individuals themselves, counsel for the Plaintiff expended substantial amounts of time and expense in attempting to schedule depositions of the designated experts.

11. Mitigating factors include the absences of a prior disciplinary record.

THE THREE JUDGE COURT finds by clear and convincing evidence that such conduct as described above on the part of the Respondent, Tara Marie McCarthy, constitutes a violation of the following Disciplinary Rules of the Virginia Code of Professional Conduct:
RULE 3.3 Candor Toward The Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal;

RULE 3.4 Fairness To Opposing Party And Counsel

A lawyer shall not:

(a) Obstruct another party's access to evidence.

(i) File a suit, initiate criminal charges, assert a position, conduct a defense, delay a trial, or take other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or ÿ.injure another. RULE 4.1 Truthfulness In Statements To Others

In the course of representing a client a lawyer shall not knowingly:

(a) Make a false statement of fact or law.

RULE 8.4 Misconduct

It is professional misconduct for a lawyer to:

(b) commit a ÿ..deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer;
(c) engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation;

UPON CONSIDERATION WHEREOF, this Three-Judge Court hereby ORDERS The Respondent shall receive a thirty (30) day suspension of her license to practice law in the Commonwealth of Virginia, to commence on the November 22, 2002, and conclude on December 21, 2002.

ORDERED that pursuant to Rule 13 M of the Rules of the Supreme Court of Virginia, the Respondent shall forthwith give notice by certified mail, return receipt requested, of her suspension to all clients for whom she is currently handling matters and to all opposing attorneys and the presiding Judges in pending litigation. The Respondent shall also make appropriate arrangements for the disposition of matters then in her care in conformity with the wishes of her clients. The Respondent shall give such notice within fourteen (14) days of the effective date of her suspension and make such arrangements as are required herein within forty five (45) days of the effective date of the suspension. The Respondent shall also furnish proof to the Bar within sixty (60) days of the effective date of her suspension that such notices have been timely given and that such arrangements made for the disposition of matters. The Disciplinary Board shall decide all Issues concerning the adequacy of the notice and the arrangements required herein, and the Board may impose a sanction of revocation or additional suspension for failure to comply with the requirements of this Order; and

It is further ORDERED that the statements of fact contained in this Order, to the extent they are admissions, shall not be deemed admissions in any proceeding or tribunal except one relating to the status of the Attorney as a member of the Bar in a Virginia State Bar disciplinary action or matter.

It is further ORDERED that the Respondent shall furnish true copies of all of the notice letters sent to all persons notified of the suspension, with the original return receipts for said notice letters, to the Clerk of the Disciplinary System, on or before the sixtieth (60th) day following the effective date of her suspension; and

It is further ORDERED that pursuant to Part Six, Section IV, Paragraph 13 B (8) (c) of the Rules of the Supreme Court, the Clerk of the Disciplinary System shall assess costs against the Respondent; and

It is further ORDERED that a copy teste of this Order shall be mailed by Certified Mail Return Receipt Requested, to the Respondent, at her address of record with the Virginia State Bar, and by first class, regular mail, to Yvonne DeBruyn Weight, Special Assistant Bar Counsel, 100 North Pitt Street, Suite 310, Alexandria, VA 22314.

ENTERED this ______day of November, 2002.




James W. Haley, Chief Judge

Richard D. Taylor, Jr., Judge
Arthur W. Sinclair, Judge



WE ASK FOR THIS:



_________________________________
YVONNE DeBRUYN WEIGHT
Special Assistant Bar Counsel


_________________________________
RHETTA M. DANIEL
Attorney for the Respondent



_________________________________
WILLIAM D. CREMINS


SEEN:


_________________________________
TARA M. McCARTHY