Unfit to Practice

by Perri O'shaughnessy

  “You mailed out the check to Ms. Reilly?”

  “Actually, she came and picked it up. The whole thing was a big rush for some reason I didn’t understand.”

  Yes, and if she hadn’t heeded Jack’s advice and rushed those checks to the Vangs out-Nina stopped herself. She had already revisited that decision during more than one midnight.

  “Looking back,” Marilyn Rose continued, “I have to assume that the time pressure was something Ms. Reilly invented as a strategy.”

  “Objection. Speculation. Move to strike that last sentence.”

  “She’s in the best position to understand why these events occurred,” said Nolan, but she wasn’t really fighting it; the point was made.

  “Sustained.”

  “Then what happened?”

  Nina tensed. Now they moved to the meat.

  “I received a manila file folder in my regular mail delivery with some papers in it.” Nolan went to her cart and pulled out the familiar file folder. Nina and Jack had had an opportunity to examine it, along with the notes inside, and to have it copied. As with the Bronco, there had been no prints and no lucky hairs or other forensic evidence.

  “You kept the envelope it arrived in?”

  “I had my secretary go back and retrieve it from the trash, yes.”

  Nolan pulled out Exhibit 17, the full-size standard brown envelope. Marilyn Rose’s name and address were printed in capitals. After Marilyn identified it the envelope was received into evidence.

  “Now. Do you know who sent this file, Exhibit 16, to you?”

  “To this day I still have no idea. The police came out a week or so later to run some tests on it, but our legal counsel ensured that the file never left the company’s possession.”

  “All right. You received the envelope, took out the file inside. Did you read the contents on that occasion?”

  “Of course. I was quite curious. I didn’t realize it was her legal file.”

  Jack shuffled his papers and got ready.

  “And what was in the file?” Nolan asked.

  “Objection,” Jack said. “The contents of that file contain attorney work-product and are privileged. The files did not lose their confidential aspect when they were stolen and inadvertently read by a third party. I have briefed this point thoroughly for the pretrial conference and ask that the court reconsider its ruling at that time.”

  “The exhibit has already been admitted into evidence per my pretrial order,” Judge Brock said. “We have already gone over this several times.”

  “For the record, Your Honor. These files were stolen. The clients haven’t waived the privilege. I understand that the state bar feels it can delve into confidential client files whenever it wants to. But my client and I, as practicing attorneys in the state of California, have to raise this objection again. And for the record we will appeal that pretrial ruling.”

  Nolan, ready for this, spoke up. “The state bar has the right to discover the work-product of an attorney against whom disciplinary charges are pending when relevant to issues of the attorney’s breach of duty. I cite Code of Civil Procedure Section 2018 sub e and also Witkin, Cal Evidence third, Volume 2, Section 1145. This court has already issued a protective order limiting the testimony in some respects today. The evidence is relevant and crucial to showing that the defendant defrauded this insurance company.”

  “You’ve said all that in the previous court conferences,” Jack said. “And I know there has been a ruling. Nevertheless, I can’t stand here and let this testimony come in without protesting. It’s a violation of the whole legal system that you are opening this confidential file in this hearing against the wishes of the client. It’s-”

  “Your ongoing, undying objection is noted,” said Brock, making a small foray toward personality. “Now let’s move it.”

  Jack’s face darkened. “This state bar court is requiring the violation of the Code of Professional Conduct required of attorneys and also the Business and Professions Code. Neither Ms. Reilly nor her client has attempted to waive the privilege of confidentiality.”

  “Your objection is overruled.”

  “This state bar court is without jurisdiction to flout the most sacred principles of the legal profession,” Jack said. “Any ruling based on this violation will be void.”

  “Siddown, Counsel. Shout to the State Bar Journal after the case is over, not that you’ll get any attention from them. But don’t grandstand in my court. I won’t have it.”

  Jack sat down.

  “You didn’t have a chance, but thanks for trying,” Nina whispered.

  “I did it for myself, too. I took the same oath when I was admitted.”

  “What was in the file, Ms. Rose? You may answer,” Nolan asked, picking up the questioning without hesitation.

  “A form that was headed Client Intake Interview.”

  “Now, showing you Exhibit 18, a three-page document previously introduced into evidence after objection and argument. Is this the form?”

  Marilyn took the sheets gingerly. She flipped to the last sheet and nodded her head. “This is it.”

  Nolan took Marilyn through the next minutes after receipt of the envelope: She had read Nina’s intake notes several times, spoken with her superiors, then returned to her office and called Nina. As Marilyn described the telephone confrontation and Nina’s denials, Nina vividly recalled the unnerving call that had sent her home to bury her head under the covers.

  “And what exactly about this document caused you to call Ms. Reilly?”

  “The last sentence on the third page.”

  “Read that sentence to us, please.”

  “It says, ‘Client breaks down, says he set fire himself!’ There’s an exclamation point. Then it goes on, kind of scribbled, ‘Advised him don’t say any more, don’t want to hear this.’ ”

  Judge Brock followed along on his copy. Nina read hers. Still it tore at her. She hadn’t written those words. Kao had not confessed. There was no evidence Kao had set fire to his own store, except for this damning, damnable forgery. For six months they had been trying to figure out who would go this far, and they simply couldn’t figure it out.

  Only now, in this airtight room, did she see in great detail the hundred holes in her defense, the big, unresolved questions. On the other hand, every case she ever defended arrived in court too soon. There were always unanswered questions. That kept things alive and ever hopeful. She still had hope, as her clients must, watching the red digital clock change, minute by minute, that the tides would turn again. She would prevail against all odds. Jack would work a miracle or Paul would. The judge would somehow forgive her for that one moment of carelessness weighed against a lifetime of diligence and duty.

  “And Ms. Reilly said that within two days of picking up the check she personally delivered it to her clients?”

  “Yes.”

  “In your experience, is that the usual turnaround time for clients to receive their settlements from law offices?”

  “I’ve been doing this work for thirty years and I don’t remember ever seeing a check go into a trust account and out to a client that fast.”

  “And have you ever received any explanation as to why this check was turned over so fast?”

  “Just what I said. She claimed there was some mysterious danger to them.”

  “Now, then. What did you do after speaking to Ms. Reilly about this file you received?”

  “I went straight to my boss and told him the whole story. I was distraught. He had me write up a quick summary, and I packaged it with the claim file and a copy of the check. It was turned over to our legal counsel. A month later, I took my early retirement and left the company. I had gotten sloppy over the years. I had let her talk me into paying out too much money, even aside from the file. You get old and you lose your edge. You get lazy. I was finished. Then I-I lost my husband. It was time to go home to Kansas City.”

  “Did this matter have any impact on you personally?”<
br />
  Marilyn blinked back tears. “It made my husband’s last months-hard.”

  “I have nothing further,” Nolan told the judge.

  Jack cross-examined. The answers were more of the same. Marilyn’s mood did not improve and neither did her testimony’s impact on their case. He kept the cross short. When Jack finished, the red numbers showed in five-inch-tall characters five minutes past twelve.

  “We’ll recess until one-thirty,” the judge said. “We have the writing examiner ready, is that correct?”

  “He’ll be here,” Nolan said.

  “Court is adjourned.”

  They all trooped out. Nina headed for the bathroom. As she washed her hands, Marilyn came out of one of the stalls.

  “I’m very sorry you had to go through this, Marilyn,” Nina said. “But I didn’t lie to you. Somebody forged that document.”

  “Don’t even try,” Marilyn said.

  “Someday I hope you’ll-”

  “I have a flight to catch. Pardon me if I don’t wish you luck.” She brushed coldly past.

  “PANDEFUCKINGMONIUM,” SAID JACK with satisfaction. He had recovered from the shock of Carol Ames’s testimony during the break called by Judge Brock after Carol was taken into custody by the bailiff. Nina watched as Paul uttered words of comfort and kept her steady.

  She took Jack aside. “I’m having a hard time analyzing the impact of this,” she said. “I’m having a hard time thinking at all. I never imagined she would confess. She must have been working up to it, feeling guilty all these months. I know it’s a huge break for us, but a girl is dead-”

  “An actual courtroom confession and we didn’t even know it was coming. Moments like this are why we practice law, Nina. Of course, it helps that we’re the side that benefits.”

  “Paul came through,” Nina said, “as usual. He found her and brought her here and saved the day.”

  “Don’t worry, I’ll clap him on the back just as soon as the marshal unleashes her.” The federal marshal had just arrived. Pinpoint eyes fixed on Carol Ames, he consulted with the judge. Paul, who had slipped into the courtroom when he heard the ruckus moments before, patted her hand. The marshal went over to them and quietly began telling Carol her rights. He took her by the arm and as she was led away, she cast one last glance back at Paul. Paul gave her a thumbs-up and a reassuring nod.

  “I hope you didn’t promise to correspond with her from prison,” Jack said as Paul came over. “You know those relationships never work out.”

  “I’ll make sure she gets good legal counsel,” Paul said. “We owe her that. In a way we tricked her into incriminating herself.”

  “Whatever brings out the truth,” Jack said. They moved out into the reception area and huddled at the far end.

  “Okay, ramifications,” Jack said. “Strategy adjustment. This girl killed the woman at the campsite. Ergo, Cody Stinson didn’t do it. Ergo, Stinson’s story that he was just trying to talk to these nervous Nellies is true. No attempted murder. No intent to assault. No intent to harm the clients. That’s the bottom line. The loss of the file, the fingering of Stinson as the killer by Brandy-she was wrong anyway.”

  “But Cody Stinson says he did get a phone call from the thief,” Nina said. “And he scared these people as a result.”

  “Only because they mistakenly thought he was a killer and made some wrong assumptions based on their fears and on the way he looks,” Jack said. “I think we’ve dodged this bullet. I sure as hell am going to argue that at the close of the hearing. I think we’re home free on this count, babe.” He grinned at Nina. “Your insurance company is going to be happy about this. They reserved half a million dollars in payouts to Bruce and Brandy and Angel, figuring they’d sue you for malpractice in civil court next.”

  “When I think of all those sleepless nights feeling so guilty because I thought I sicced a murderer on Brandy and her family, I-I can’t believe it,” Nina said.

  “Enjoy the moment,” Jack said. He checked his Rolex. “Okay, time’s up. Now we go back in and we argue ‘ergo’ to Hugo.”

  Nina hung back with Paul. “Thank you,” she said.

  “Hey, it was your idea.”

  “Half-brained and dimwitted. Desperate and you know it. But you were willing to take it all the way. I’m always thanking you. You work it and work it until finally you crack it.”

  This time Gayle Nolan came over to Jack and Nina’s table as soon as they sat down. “Is that confession for real? Is that gonna stand up?” she asked Jack.

  “It’ll stand up. You going to let the South Lake Tahoe D.A.’s office know they’ve got an innocent man locked up?” Jack asked.

  “I just put in a call. What they do about Stinson is up to them. You knew she was gonna confess?”

  “We didn’t have a clue.”

  “You sandbagged me,” Nolan said, but she didn’t show much conviction. She had seen the shock on all their faces.

  “You’re buried up to your neck, but it’s your own fault. You brought the charges against this lady,” Jack said with unmistakable triumph in his voice.

  “Get this, Jack,” Nolan said. “Maybe the first count goes away, but there are two more. Don’t get cocky.” She continued to ignore Nina.

  “Ms. Nolan,” Nina said.

  “What?”

  “The judge has just come in.”

  “What? Oh.” She skittered back to her chair. Judge Brock took his place. Various “X” expressions followed one another across his face. Vexed. Flummoxed. Perplexed.

  “We’re back on the record and I’d like to know, what now?” he said in his mild voice. “I don’t like uproar in my courtroom. Are you planning any more shocks like this one, Counsel?”

  “We were as astonished as the court,” Jack said, rising. “Astonished and gratified. It’s obvious Mr. Stinson was telling the truth when he testified that he was only trying to tell these people that he was innocent of the-”

  “No more surprises, is that clear? If you have something like this, I want to know it’s coming.”

  “Of course, Judge.”

  “All right. This isn’t the time for argument. The court notes for the record that based on her purported confession to a murder, the previous witness, Carol Ames, has been taken into custody. Now let’s move forward with this. It’s eleven-thirty. We have half an hour. It’s still your turn, Counsel. You have a couple more witnesses on Count One listed.”

  Jack said, “Well, we excused them, Your Honor. We are ready to move on to Count Two.”

  “You’re resting for the defense on Count One?”

  “Yes.”

  “All righty then. Ms. Nolan, are you ready to go on Count Two?”

  “Yes. The witness from Heritage Insurance is waiting outside.”

  “Let’s move on, then. Count Two. Call your witness.”

  “Marilyn Ann Rose.”

  Marilyn Rose walked up to the box and was sworn. A heavyset woman with a pleasant, open face, she wore a demure, dove-gray pantsuit. Nina knew that Marilyn’s husband had died three months earlier, leaving her two children to support on her own. After the Vang fiasco she had left the company and moved out of state.

  Her company had hired a lawyer who had managed to prevent Jack from deposing her. However, they knew what she would say about the Vang case. The actual document about to be introduced as evidence, Nina’s original intake notes, was the problem on this count.

  The prosecution’s forensic writing examiner, Harvey Pell, came next on the problem list. Nina tried to yank herself mentally into the new universe of problems Count Two represented.

  “Good morning, Ms. Rose. My name is Gayle Nolan and I represent the State Bar of California.”

  “Good morning.” Nolan took Marilyn through a recitation of her job duties as a claims adjuster and brought her to the Vang case.

  “I’m now showing you Exhibit 15, which has been previously admitted into evidence by stipulation. So Ms. Reilly presented you with this claim on or
about August twenty-eighth of last year?”

  “That’s correct.” The claim letter with its attachments was about four inches thick. Marilyn stared at it. They all stared at it.

  “The claim was for how much for the losses due to the convenience-store fire?”

  “They asked for two hundred fifty thousand dollars. The policy limit.”

  “And the claim contained a copy of the police report concluding that the fire was caused by a criminal agency?”

  “Yes.”

  “And was the arsonist identified by the South Lake Tahoe police, at the time the report was written or at any later time up to the time that you adjusted the claim and sent out the check?”

  “Not to my knowledge.”

  “Was there any evidence in this claim letter or otherwise, up to the moment you sent out that check, that the store owner, Kao Vang, might have carried out the arson himself?”

  “No. Of course our own investigator had done independent work on the fire, but he was unable to identify the arsonist and advised that he had no evidence that the claim was anything but legitimate.”

  “Now, the defendant represented to you that she was Mr. and Mrs. Vang’s attorney?”

  “That’s right.”

  “You talked with her on numerous occasions throughout the adjusting process?”

  “Yes. On the phone. Not in person.”

  “Did she give you her version of the facts of the fire?”

  “She said all she knew came from the police report, that her clients had suffered a lot. Told me about two previous violent incidents at the market. It all jibed with the theory she pushed on me, that the arson was a revenge act after Mr. Vang shot a robber during his second attempt to rob the store. She kept saying we had to have a heart for these people and even though the supporting inventories and receipts were in pretty bad shape, she practically begged me to give her clients the benefit of the doubt on the settlement.”

  “And what was your response to her request that your company settle this matter for a generous amount?”

  “I stuck my neck out and eventually offered two hundred ten thousand. That’s about right for a store of that type and size. To be honest, I suspected there was some padding in the inventories, and I suspected that if I had every scrap of paper translated and scrutinized it wouldn’t add up to that much. But these people weren’t your average store owners. They obviously didn’t use a standard system of accounting and were obviously new to American business systems. I took a chance and gave them as generous a settlement as I could.”