“That’s heartless.” Mary felt a surge of anger, the kind she always felt when somebody had been wronged. But here, it had happened to someone she knew and loved. Simon. And Rachel.
Feet shook his head. “They’re bastards!”
“WHAT KINDA PEOPLE FIRE YOU BECAUSE YOU GOT A SICK KID? THEY SHOULD BURN IN HELL!”
“Disgrazia!”
Simon shook his head. “The irony is that OpenSpace wouldn’t have had to pay another penny. CHOP worked with me and Aetna, and since I’m a Pennsylvania resident and the illness is life-threatening, I can use secondary insurance like the CAT fund and Medicaid. They cover the costs of the transplant, which is astronomical.”
“How much does a bone marrow transplant cost?”
“A million bucks.”
“Whoa, are you kidding?” Mary said, shocked.
“No, start to finish, it’s almost a year-long process, and you can’t imagine the expertise and care it takes.”
“I bet.” Mary got back on track. “Do you remember the comment your boss, Todd, made to you, about how much it was costing?”
“Yes, and I even have proof. I wrote down every time Todd said something to me about her bills. I didn’t want to write it on my phone because it’s company-issued.” Simon reached into his sport jacket, pulled out a Moleskine notebook, and set it down. “I can show you right here, when and where.”
“Great.” Mary picked up the notebook, opened it, and glanced at Simon’s characteristically neat writing, with dates and times noted. “Simon, what’s your boss’s full name?”
“Todd Eddington.”
Mary made a note. “How long has he been your boss and what’s his job title?”
“He’s sales manager. I’ve reported to him for twelve years.” Simon swallowed hard. “I thought we were friends. I know his ex-wife, Cheryl. They were both good to Ellen.” Simon’s voice trailed off, but Mary wanted to keep him on the case.
“So did Todd make the decision or did somebody else?”
“He does. He makes a recommendation upstairs, to hire or fire, and it gets rubber-stamped by the president, Mike Bashir.”
Mary made a note of the name.
“So is it legal, what they did?” Simon leaned over. “It seems so wrong to me. I understand that a transplant costs a lot, but they’re going gangbusters and I worked for them for twelve years. Can they get away with this?”
“Not in my book. We can sue them for this, and we should, right away.” Mary knew disability law as a result of her growing special-education practice and she was already drafting a complaint in her mind. She loved it when the law actually did justice, which happened less frequently than God intended.
“So it’s illegal?” Simon leaned forward, newly urgent.
“Yes. There’s a federal law, the Americans with Disabilities Act, and it prevents discrimination in employment based on disability or illness. So for example, you can’t fire somebody because they have cancer—”
“But how does that apply to me? I’m not the one with cancer, Rachel is.”
“I know, but the law has a special provision that applies here, though it’s not well-known. In fact, there’s very little case law on it, but it applies to us.” Mary started searching online for the statute. “It’s called the ‘association provision’ and it forbids employment discrimination on the basis of an illness contracted by people who are associated with the insured employee, like their family.”
“Really?” Simon’s eyes widened with hope.
“Yes, under the ADA, an employer is prohibited from”— Mary found the statute and started reading aloud—“‘excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.’”
“MARE, WE DON’T GET THE LEGALESE!”
Mary explained, “It means Simon is a qualified individual under the law and he is associated with Rachel. In other words, Simon’s company can’t fire him because she got sick and her medical expenses are going to cost them. I have to research the cases and get more facts from you, but I think we have an excellent case here.”
“That’s great!” Simon threw his hands in the air.
“Thank God!” Feet cheered, and Tony-From-Down-The-Block, Pigeon Tony, and Mary’s father burst into chatter, all at once. “Bravissima, Maria!” “Way to go, Mare! Go get ’em!”
“MARE, I KNEW YOU’D KNOW WHAT TO DO! I’M SO PROUD A YOU!” Her father shuffled over and kissed the top of her head. “THANK GOD YOU’RE SO SMART! AND BEAUTIFUL!”
“Aw, Pop.” Mary flushed, relieved. She couldn’t have lived with herself if she couldn’t help Simon and Rachel, fighting for her life. If there was any reason she had become a lawyer, this was it. To help families, children, and the community as a whole. She felt as if she had finally found her niche in special-education and disability law and lately she’d come to work happier than ever before.
Simon beamed. “Mary, that’s so amazing. How does that work? Do you think I could get my job back? I really need to work.”
“Okay, hold on.” Mary put up her hand. “I have to study your notebook and do my research before I can answer any of these questions for sure. And the procedure under the law is that before we go to court, we have to file a complaint with the EEOC, the Equal Employment Opportunity Commission, first. Then they give us a right-to-sue letter and we can go to court. As far as remedy, I don’t know if you can get your job back, but why would you want it? Do you have an employment contract or a non-compete?”
“Yes, for two years, and it covers the mid-Atlantic states. So now I can’t work in sales in the area but I can’t move out of the area because of Rachel being at CHOP.”
Mary saw his dilemma. “Okay, we’ll see what we can do. We might be able to get a decent settlement, then you can stay home with Rachel during her treatment.”
“But what about her medical expenses?”
“You buy COBRA with the settlement money. That covers you both for eighteen months and you’ll find another job when you free up more.”
“That would be best of all! I don’t know how to thank you, Mary.” Simon broke into a huge smile.
Her father grinned. “HOW MUCH CAN YOU GET HIM, MARE?”
Feet chimed in, “Yeah, how much?”
Mary waved them off. “Don’t get ahead of yourselves. I need to know more before we make a settlement demand and I want to see the notebook, so I understand exactly what happened.”
Simon nodded, excited. “So you’ll take my case, Mary? Do you have the time?”
“Of course.” Mary mentally cleared her calendar. She didn’t have anything as pressing as this. This was for family.
“Thank you so much!” Simon squeezed her hand. “And I just want to say up front that I’m paying you for this. I’m not expecting you to represent me for free.”
“YOUR MONEY’S NO GOOD HERE. YOU KNOW THAT.”
“Simon, my father’s right,” Mary said, meaning it. She’d have to tell her partner, Bennie Rosato, but the days were over when she’d have to ask for permission.
“What do we do next?” Simon checked his watch. “I should get over to the hospital.”
Feet nodded. “Simon sleeps there, and we trade off. We like to be there when she’s up.”
Tony-From-Down-The-Block added, “So she knows she’s not alone.”
“OF COURSE SHE’S NOT ALONE!” Mary’s father said, and she saw his eyes begin to glisten, so she rose.
“Okay, then. Let me get started so we can get a demand letter out right away. See if we can get this settled without having to file suit.”
“Think we can?” Simon stood up, his entire demeanor improved. He held his head higher and squared his shoulders.
“I can’t guarantee it, but I feel good.” Mary gave him a reassuring hug and gathered him, Feet, her father, the remaining Tonys, and the untouched pastry while they all exchanged “go
od-byes, “thank-yous,” and “love-yous.” Then she ushered them out of the conference room, down the hall, and into the elevator, giving her father one final hug.
“Mary, thanks so much!” Simon called to her.
“BYE, HONEY! LOVE YOU!”
“Love you, too!” Mary glimpsed her father’s eyes begin to glisten as the elevator doors slid closed. Something was still bothering him, but she didn’t know what or why. The doors had sealed shut and the elevator rattled downward, leaving her to her own thoughts. She felt so good that she could help him and Rachel, but so awful that the baby needed the transplant. Only four years old, and her young life had been a series of tests and chemo, needle pricks and IV ports. It couldn’t be possible that children suffered so much, yet she knew it happened every day, in every hospital in the country.
The other elevator doors slid open, and inside was Bennie Rosato, whose appearance never failed to intimidate Mary. Maybe it was because Bennie was her former boss and a superlawyer with a national reputation, or the fact that Bennie was six feet tall and towered over Mary, or the fact that Bennie always wore a khaki power suit, or that her curly blonde hair was always in an unruly topknot, proof that she was far too sensible to care about anything as dumb as hair.
“Good morning,” Mary said, as Bennie flashed a confident smile, which was the only kind she had.
“Hey, DiNunzio. I mean, Mary. What are you doing, standing here?”
“I just met with a new client,” Mary answered, faking a smile.
“Tough case? You look upset.” Bennie strode toward the reception desk, and Mary fell in step beside her, telling herself not to be nervous around her own partner, for no reason. Or maybe for four reasons, as above.
“Yes, tough case.” Mary was thinking of Rachel.
“Tough on the law?”
“No, it’s just sad. On the law, it’s a winner. A sales rep got fired because his daughter needs a bone marrow transplant.” Mary summarized it like a legal headnote since Bennie was in a hurry.
“Ouch.” Bennie grimaced as she walked. “Go get ’em, tiger.”
“It’s totally illegal under the association provision of the ADA. I’m hoping for a quick settlement.”
“Who’s the defendant?”
“Some cubicle manufacturer.”
“Not OpenSpace.” Bennie stopped, frowning under the gleaming Rosato & DiNunzio plaque.
“Yes, why? How did you know?”
“OpenSpace is the biggest cubicle manufacturer in the area, and you can’t sue them. I represent their parent company.”
“I don’t understand.” Mary’s mouth went dry.
“You’re conflicted out of the case, and I didn’t hear what I just heard. Decline the representation.”
CHAPTER TWO
Bennie Rosato didn’t understand why Mary looked so upset. It was a very simple statement. The only thing she could do was repeat it. “Mary, you can’t take the case. I represent the parent company of OpenSpace, which is Dumbarton Industries.”
“But I want to take the case,” Mary said, stricken.
“Well, you can’t. You can’t sue OpenSpace because I represent Dumbarton. You have a conflict of interest. I’m sorry,” Bennie added, because she was trying to improve her interpersonal relations, especially where DiNunzio was concerned. For example, she’d reminded herself to call her new partner by her first name, Mary. It was a regular lovefest.
“But I didn’t know you represented Dumbarton.”
“Now you do. They’ve been a house client since I started the firm, way back when.”
“But I never represented Dumbarton.”
“That’s legally irrelevant. If I represent Dumbarton, we represent Dumbarton. I’ve worked on many of their matters over time and I’ve known the CEO since law school. Nate Lence. He deals with me personally. They have a solid in-house legal department, and what they can’t handle, they farm out to us and other firms. In fact, if the case is too big for us, Nate consults me on whom else to hire.”
“Bennie, I don’t know the first thing about Dumbarton.”
“Haven’t you seen their name on the new-matter sheets?” Bennie was referring to the system by which lawyers in the firm notified each other that they were taking on a new matter. Every law firm was required to have such a system, so conflicts of interest could be caught before the representation went too far down the line. Luckily, it sounded as if this one could be nipped in the bud.
“Sure, yes, but I’ve never seen OpenSpace on the new-matter sheets. Have you ever represented OpenSpace?”
“No, but I represented Dumbarton and several of the other subs. You have to decline the representation.” Bennie noticed red blotches appearing on Mary’s neck, a nervous tell. Bennie made a mental note to mention it to her before she stood in front of her next jury.
“Even though I never represented the parent? Only you did?”
“Yes. How can I make this any clearer? A client of mine is a client of yours under the Rules.” Bennie was referring to the Rules of Professional Conduct, which governed the ethics of lawyers, at least those who allegedly had them.
“Because we’re partners?”
“No, because we’re members of the same firm. Even if you were still an associate, the result would be the same.” Bennie glanced at her watch. It was eight fifteen, and she had a deposition starting at ten, for which she needed to prepare. If they were going to keep talking, she had to get moving. She headed for the reception desk, and Mary followed.
“Are you sure that Dumbarton owns OpenSpace?”
“Absolutely.”
“Wholly owned or partially owned?”
“Wholly, and it’s a private company.” Bennie reached the reception desk, which was empty. Marshall must be in the bathroom but she had already sorted the morning’s mail and placed it in its holders. Bennie grabbed her mail, a thick packet of correspondence and court orders with pink phone messages on top. She channeled most of her calls through the firm and rarely gave her cell number to clients. She didn’t like to be too available.
“How do you know they’re wholly owned?”
“I read the papers. Morgan Lewis did the deal. I recommended them to Nate.” Bennie left the reception area, and Mary walked beside her, hurrying to keep up, since she was a short girl with a short stride.
“You did?”
“Yes.” Bennie strode down the hallway, which was lined with associates’ offices. She noted with disapproval that they were empty even though it was after eight o’clock, then remembered that two of the associates, Anne Murphy and John Foxman, were on a securities fraud case in Atlanta. That meant only Judy Carrier was late, but that child marched to the beat of a different drummer. “Mary, let me fill you in. Dumbarton is headquartered in King of Prussia and owns twenty-six subsidiaries, among them OpenSpace, which they acquired recently.”
“I didn’t know!” Mary was getting more upset, which even Bennie could see, since the girl wore her emotions on her sleeve. As well as her arms, her legs, and her face. And neck.
“Understood. So I get why you took the meeting—”
“—of course, I would—”
“—and it’s too bad that you learned something Dumbarton would be interested to know, namely that one of their subs is about to be—”
“You’re not going to tell them, are you?” Mary interrupted again, like she always did when she got excited, which Bennie let go. Her office was at the end of the hall, and she beelined for it like a finish line.
“No, I think I can keep it to myself consistent with my obligations. But don’t tell me another thing about the case. Decline the representation by letter.” Bennie stopped outside her office, hoping they’d spoken the last word. Her deposition today was critical, in a securities fraud case in which she was going after the CFO of a Fortune 500 accounting firm.
“I can’t decline the representation. It matters to me, and I really want to take it.”
“Why? You’re already so bu
sy.” Bennie didn’t get it. Mary represented every mom-and-pop business in South Philly, and her practice of small-matter, state-court cases complemented Bennie’s own big-matter, federal-court practice. It was why Bennie had made Mary a named partner, as hard as it was to give up control, her favorite thing in the world.
“It’s personal.”
“This is business.”
“Business and personal can be mixed.”
“No, they can’t.”
“They can for me,” Mary shot back, more firmly. “The plaintiff is one of my oldest friends from the neighborhood. I can’t not represent him. I already accepted.”
“So withdraw. It was an honest mistake. You didn’t know you had a conflict.” Bennie noticed Mary’s jaw tilt upward in a determined way, which could be a problem.
“I don’t know anything about Dumbarton and have never worked for them. It’s not unethical.”
“Of course it is. Read the rules. I don’t make them.”
“But think about it. You said they have twenty-six subs. Are we conflicted out of all of them?”
“Yes.”
“That can’t be.” Mary frowned more deeply. “Are we conflicted out of all of the subs of all of our clients?”
“Yes.” Bennie was pretty sure she was right, but she’d double-check later.
“But as applied to Dumbarton and OpenSpace, it’s a technicality.”
“Mary, we’re lawyers. Technicalities are our business.” Bennie would have laughed if she had time. “How can I make this any clearer? Dumbarton and OpenSpace are in the same corporate family.”
“But this isn’t about a corporate family, this is about a real family. My family.”
“Are you saying that this plaintiff is a family member? Although that wouldn’t cure your conflict of interest.” As a technical matter, Bennie wanted to add, but didn’t.
“We’re not blood-related, but I know his family and he knows mine. We couldn’t be any closer as families. My father was even in the meeting, and so was his father.”
“Your father was in a consultation with a new client?” Bennie had never heard of such a thing, but didn’t criticize, since she wasn’t supposed to do that anymore. On the contrary, she had to hand it to Mary, who practiced law her own way. You couldn’t argue with success. Up to a limit. Then Bennie noticed Judy Carrier coming down the hallway toward them with her big smile and spiky pink hair.
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