“I won’t take long.” Mary had a plan, and this was the time to execute it. She followed Bennie into her office and closed the door behind her, while Bennie sat down at her desk, plopping exhibits in the middle. The strain of the day showed in her face, and her topknot was askew, with a pencil stuck in the middle.
“Is this about OpenSpace? Because we discussed that already.”
“But we’re not finished yet.” Mary stood her ground, literally and figuratively. “I looked at the rules, and it’s not as clear-cut as you might’ve thought.”
“I know that already and—”
“I really think that the circumstances allow me to take the case.”
“We have to agree to disagree for now.” Bennie met her gaze evenly, her eyes flashing a sharp blue. “I have work to do.”
“Unfortunately, we can’t agree to disagree because impasse won’t work in this situation. We have to find a middle ground.”
“There isn’t one.” Bennie’s mouth set in a grim line, and to Mary it looked as if her lips were chiseled in stone, but Mary told herself not to be intimidated.
“Yes, there is. I checked the rules, and if the client consents to my undertaking the representation, then the conflict is waived.”
“I know that too.”
“So that may be a way to break the impasse.”
“I know Nate very well, and he’ll be furious if I ask him to consent. I can’t imagine a worse move for client relations. He’ll take it as a breach of my duty of loyalty to him and to Dumbarton.”
“But he’d be wrong. We know that now. You can explain that under the rules, it’s perfectly ethical for me to take the case.”
“He’s a lawyer. He can read the rules as well as we can. He won’t see the circumstances the way you do. It’s a judgment call at best.”
“Here’s my plan. Here’s the complaint and demand letter I’ve drafted in this matter, which I would file if I were to represent the plaintiff.” Mary set the complaint on Bennie’s desk. “This case is so open-and-shut that I think we should proceed informally, maybe even less adversarially, which will work for us both.”
“How can litigation not be adversarial? That’s the fun part.”
Mary let it go. Bennie was weird sometimes. “But this case is so sympathetic and OpenSpace was clearly in the wrong. I have the facts, including contemporaneous notes by the plaintiff that are very convincing, and I detailed that in the complaint.”
“So?” Bennie glanced at the complaint with a frown.
“I say that we call Nate together, tell him about the complaint, and even that we disagree on the representation. Let’s put the cards on the table and see if we can settle this case, informally, because all of our interests are aligned.”
“How are Dumbarton’s interests aligned with somebody suing its subsidiary? And if anybody calls Nate, I will. Alone.”
“Because when this complaint becomes public record, or if it came to light in a newspaper, it would be terrible publicity—”
“Is that a threat?” Bennie recoiled.
“No, it’s a fact,” Mary answered, though it was a threat, kind of. And Bennie was the one who had taught her to use the media to her advantage in a case. “It’s a case that they’re going to want to settle, if they have any sense at all. I have no doubt that when you read this complaint, with their interests in mind, you’ll feel the same way, and I’m willing to be reasonable in my settlement demand.”
Bennie didn’t say anything.
“Tell Nate you’re doing him a favor, in a way.”
“How am I doing him a favor, when my firm is suing his sub?”
“Because you got him in at the ground floor. If the plaintiff had gone to anyone else, you wouldn’t have known about it. We’re giving him a chance to make this go away before it gets bigger, and I’m not charging any fee. That saves him thirty percent, right there.”
“You’re doing it for no fee?”
“Of course. I told you, they’re family. I love this little girl. Her father, and her grandfather. I love them all.”
Bennie rubbed her face, leaving a reddish mark on her fair skin. “Mary, I’m trying to compromise, but you’re not understanding this from a business point of view. Our business. Nate has his pick of law firms in the city, but he’s been loyal to me, even as he’s outgrown—”
“I know but—”
“Wait, hold on. Don’t disregard that. I will tell you, as someone who’s been running a law firm longer than you have, that no business prospers by ignoring its client base.”
“You’re right, but I have the same problem. This is a case that comes to me out of the neighborhood. It’s very high-profile in South Philly, and everybody knows Rachel. The school, the synagogue, and the church have held bake sales and fundraisers for her since the day she got sick. I even organized one at my old high school.”
Bennie fell suddenly silent, so Mary kept going.
“I have a client base too, and even if my heart weren’t on the side of taking this case, then my client base is. Everybody in South Philly will know if I turn them away, everybody. It could hurt my reputation, even ruin it. And frankly I could never live with myself. I’m begging you. Please call Nate, OpenSpace, or whoever, and try to settle it informally.”
“I couldn’t go forward without investigating it myself, you know.”
“Then please, investigate. Do whatever you have to do. It’s all in the complaint.”
“Okay, enough.” Bennie picked up the complaint. “Tell you what. I’ll read this and decide.”
“Great, thanks!” Mary’s hopes soared.
“I’m doing this for you, partner to partner. I’m compromising.”
“I appreciate that,” Mary said, meaning it. “When will you let me know your decision?”
“As soon as possible.”
“Tonight?”
Bennie shot her a warning glance. “We’ll see.”
“Okay, thanks.” Mary started edging backwards toward the door. Every lawyer knew that when you win, get out of the courtroom. She opened the door and fled before Bennie changed her mind.
CHAPTER SIX
Bennie entered the restaurant, relieved to step into air-conditioning after the walk from the office. She’d emailed Nate to talk to him about Mary’s case, but he was in the city and suggested they do it over drinks. She’d agreed, only because she could pitch it better in person, so she hadn’t sent him the complaint. She could only hope he wouldn’t throw a fit, but Vetri’s was one of the city’s best restaurants. The air smelled like fresh basil and expense accounts.
The maître d’ wasn’t at the front, but she spotted Nate waving to her from the right, so she threaded her way through the tables, which were filled. The dining room was small but had a cozy Italian country vibe with sunflower-yellow walls and rustic tables. She had no idea how Nate had gotten the reservation so quickly, but that was a perk of being the CEO of a company that owned twenty-six subs that occasionally made bad decisions.
Bennie organized her thoughts as she approached the table. She had read Mary’s complaint, and the case was a loser with considerable exposure, which was why she had agreed to this folly. It was hardly the way she would have done business, but she was also thinking about what Sam had said, that she had to try and get along with her new partner. Still, compromising didn’t come naturally to her and she had no idea how people did it. But then again, that’s probably why she had few friends and never married. She used to think of herself as undefeated, but lately she was less sure.
“Hey, Nate,” Bennie said, sitting down opposite him. Nate was tall and handsome in a rich-guy way, with a costly layered haircut that minimized the length of his face, regular grooming that kept his eyebrows separate, and an unshaven look intended to make him look rugged when he was anything but. His best feature was his intense green-blue eyes, and he usually wore either green or blue to set them off. Like tonight, he had on a light blue linen jacket with a cream colored T-shirt and jeans. He n
ever had problems getting women, just keeping them.
“So good to see you, Bennie. I ordered you a Tanqueray and tonic.”
“Thanks.” Bennie wasn’t surprised that he remembered her drink. They’d dated briefly after his second divorce but she’d cut it off, since they weren’t a good match and she needed a client more than a lover.
“I was surprised when you emailed. To what do I owe the honor?”
“It’s a case that involves OpenSpace.”
Nate mock-pouted. “Straight to business.”
“You know me.”
“So you’re still seeing whatever his name is.”
“Yes. Declan Mitchell.”
“I stalked him online. Solo practitioner in Middle-of-Nowhere, Pennsylvania. Former state police officer, mounted division. Ruggedly handsome, married to his horse. He’s not good enough for you.”
“That’s quite enough.” Bennie didn’t smile.
“You think I’m a snob.”
“I know you are,” Bennie shot back as the waiter came over, served her drink, then placed a wineglass in front of Nate, uncorked the bottle, and poured some.
“Thank you.” Nate swirled the wine around the glass, sniffed it, then took a thoughtful sip, by which time Bennie was out of patience.
“Surprise, it’s wine!”
“Do you always have to bust me?” Nate smiled crookedly, setting down the glass. A maroon stain covered part of his upper lip.
“Yes, because you make it so easy.”
“I could educate you on this Beaujolais. I’d be happy to, and you might learn something.”
The waiter interjected, “Mr. Lence knows his wines.”
Bennie smiled. “Mr. Lence knows everything.”
“On that we agree.” Nate motioned to the waiter. “Please, pour the rest before she emasculates me completely. It won’t be pretty.”
“Certainly, Mr. Lence.” The waiter poured generously, then made himself scarce.
Bennie leaned over the table. “Nate, take a big gulp because you’re going to need it.”
“What’s up?”
“My partner, Mary DiNunzio, got a case this morning from a sales rep who was fired by the sales manager at OpenSpace. She took the meeting because she didn’t know I represented Dumbarton.”
“She took the meeting without a conflicts check?”
“Yes, and you can understand that. It was an honest mistake. That happens.”
“She can’t take the case.” Nate blinked. “She doesn’t think she can, does she?”
“Hold on.” Bennie held up a palm. “Don’t freak. She’s not filing anything yet, and you need to flip your thinking. There’s a way we can turn this to your advantage.”
“I can’t believe I’m hearing this.” Nate frowned. “Are you trying to tell me your partner is seriously considering suing my sub? She can’t. Has she never heard of the code of ethics? Who the hell is your partner again? And since when do you have a partner anyway?”
“Relax.” Bennie kept her hand up. “We checked the rules, and they don’t offer clear guidance in a case like this.”
“Then I will. Your partner is conflicted out of suing OpenSpace or any other subsidiary of Dumbarton. I won’t have it. I’m astounded you would.”
“Obviously, my initial reaction was against it, but there is a way that we can turn it to our advantage.” Bennie met his troubled gaze. “You have every right to be angry, and I would’ve been too. But she has a draft complaint that details the facts surrounding the termination, and after I read it, I realized that we’d be putting form over substance. We both know settlement makes sense, when called for. We have a chance to do that right now.”
“Is this where you tell me that the Chinese symbol for crisis is also the symbol for opportunity?”
“No, I didn’t know that.” Bennie felt encouraged, since Nate was keeping a lid on his anger. “Here’s the thing. I know you don’t get involved with every little case that comes down the pike, but this is one that could get a lot of public attention and it would be terrible PR.”
“Like what?” Nate glowered.
“It looks as if the rep was fired because of his daughter’s medical expenses, which is unlawful under the Americans with Disabilities Act. The child has leukemia, and she’s four years old.”
“A cancer kid?”
Bennie cringed. “Not very sensitively put, but yes. If you’re going to be absolutely cold-hearted about it, that means that you have a case that could attract negative attention and also have potentially broad exposure.”
“So? It happens every day in the big city.”
“Not like this, and not in this political climate. People are hurting with healthcare expenses. It’s in the news every day. It’s all over Facebook and social. This is a kid who needs a bone marrow transplant to live, and the boss made a number of statements that are really damning. One was an admission.”
“Like what?”
“Like that ‘these expenses can’t keep up, our premiums will go up,’ et cetera. He clearly had a discriminatory animus, and the plaintiff made contemporaneous notes of his comments, which occurred on four separate occasions. It’s homerun evidence.”
“But how do you know it’s true?”
“I don’t, but it seems credible. The plaintiff claims the boss explained the corporate deductible to him and that it’s capped at 250K. I know that’s true, and so do you. How would the plaintiff know that if he wasn’t told it? Why would a boss be discussing that at all?”
“It means nothing.”
“Really?” Bennie modulated her tone. “How big is your HR department at OpenSpace?”
“One person, I think. OpenSpace only has forty-five employees.”
“My point. With how many managers, in the whole company? Sales? Operations? Administrative?”
“Whatever.”
“And you have them trained on their responsibilities under the federal and state employment laws? Title VII? Age discrimination? Sexual harassment and the like?”
“We have somebody at one of the big firms to run seminars on that. Some labor jock at Dechert.”
“But what about disability law? The ADA, the Rehabilitation Act? I bet you don’t. I bet that’s a footnote in the seminar, if that. Wanna make a wager?”
“You might be right,” Nate said, after a moment.
“I bet your boss didn’t even know that you can’t fire somebody because you don’t want to pay their kid’s medical expenses. It’s called the association provision of the ADA, and there haven’t been many cases decided under it.”
“I never heard of it.”
“There you go, and that’s how these things happen. No bad intent. Just ignorance of the law, which, unfortunately for us, is no excuse.” Bennie saw his forehead relax, so she kept talking. “My partner attached the plaintiff’s photocopied notes as exhibits to the complaint, which is very detailed. I can email it to you, and you can read for yourself. My partner is eager to settle and she’s reasonable, unlike most of the thieves in the bar association. And because she’s personally associated with the case, she’s taking it for no fee, which saves you half.”
“How is she related to the case?”
“The plaintiff is the grandson of a friend of her father’s. Everybody in South Philly knows about the child. They’ve had fundraisers and articles in the local newspaper.”
“South Philly has a newspaper?” Nate picked up his wineglass.
“Don’t be a snob.”
“It comes so naturally.”
“Look. We should settle. We can just do this down and dirty. Simple dispute resolution, without bloodshed. We won’t make a habit of it. One and done. It makes a lot of sense, Nate. It really does.”
“I don’t know—”
“If my partner doesn’t take the case, another lawyer will.” Bennie tried her last-ditch effort. “And that person might not play ball with you the way she would.”
“That’s blackmail.”
<
br /> “No, that’s reality.” Bennie lowered her voice. “Don’t underestimate your downside risk, either. If another plaintiff’s lawyer took the case, they could join Dumbarton as a defendant. I know I would. Then you and your deep pocket are on the hook, too.”
Nate shook his head. “When did litigation become extortion?”
Bennie gathered it was rhetorical. “And what if they expand discovery to the ADA policies of your other subsidiaries? Your exposure can be very broad unless you nip this in the bud.”
“Damn you.” Nate’s eyes flashed darkly.
“We should set up a meeting tomorrow at OpenSpace.”
“Who would be there?”
“The plaintiff’s boss and me, plus whoever we want. We’re improvising. We won’t invite my partner or the plaintiff. I know you wouldn’t ordinarily sit in, but you could if you wanted to, or just send your in-house guy that deals with OpenSpace.”
“What’s the point of the meeting?”
“Factual investigation, like any case. I interview the boss and see what our defense would be. That would enable us to have a fuller analysis of the case before we went forward.”
“This is so wrong.” Nate took another sip of his wine, then another. “My own lawyer is suing me, and I’m consenting.”
“You’re a more nuanced thinker than that. Be creative. It’s thinking outside the box.”
“You’re the only woman I know who has the balls to pitch me this way.”
“Thank you.”
“It wasn’t a compliment.”
“So you say.” Bennie smiled. “Lighten up, Nate. You’re not too old to rock ’n’ roll, are you?”
“Please don’t try and jolly me along.” Nate glowered. “I expect you on my side, not theirs.”
“I’m still on your side. If it turns out that you’re not comfortable with my partner taking the case, even informally, then we don’t go forward. Or if you don’t want to settle or your in-house guy doesn’t, then we don’t go forward. We’ll have lost nothing. And we could be averting disaster, like if the plaintiff goes to a different lawyer.”
“I can’t believe you’re talking me into this.”
“Me neither.” Bennie smiled, inwardly relieved.
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