Hugh L. McWilliams' San Antonio practice focuses on insurance litigation. He has served the State Bar of Texas in the grievance process for twelve years. He has been chairman of the State Bar of Texas 10A Grievance committee and chairman of Panel I of the 10A committee. James A. Ehler, Regional Counsel, Office of the Chief Disciplinary Counsel, State Bar of Texas, has continued to provided valuable insight and guidance for this series.
"I really eat this stuff up!" thought Gwen, smiling as she glided down the hallway to her office. One year out of law school and she already had her first victory notched on her "personal" copy of AmJur3rd Family Law. Sure it was just "pots `n pans, no kids," as the Partners say; but by golly it was hers after a fight to the finish. She beamed, thinking of her next conquest.
She glanced at the Monday morning mail and was surprised to see an envelope with the distinctive State Bar of Texas seal. She was sure she had sent in her annual dues and attorney tax, and MCLE reporting wasn't due for another month. She opened the envelope and began reading the contents. Her heart stopped cold when her eyes fell on the word "Grievance." It made a sound in her mind like tearing fabric. As disbelief evolved into denial, she held the letter as though it were a contagion and headed for the senior partner's office.
Bill Wisdom looked up from his newspaper and coffee and said, "Morning, Gwen, how's the litigator after a week off? Are you ready to get back into the ring?"
She looked at him, and he was certain her smile was symptomatic of intense abdominal pain. "Look what I got in the mail," she said, handing Bill the "scarlet letter." "I'll quit if you want me to."
Bill sized up the young, crestfallen lawyer and knew he had made a good choice when he hired her over a year ago. He read the complaint and was puzzled. "Tell me this complaint was not filed by the defendant in the case you just tried," Bill said.
"One and the same," said Gwen, "and he's saying I was unfair in the way I tried my case! This is totally ridiculous," she continued, "and I think I'm going to just ignore him."
"You can ignore him until the cows come home, Gwen, but you can't ignore the State Bar Grievance Committee." Gwen was morphing from denial into anger and from anger into retribution. How dare this guy! Bill went on, "Don't get yourself confused here, Gwen. You want to fight back, and that's natural, but your fight is not with the State Bar."
"But it's not fair, Bill! This complaint is about my cross examination. Look at this," she said pointing to the hand-written sheet attached to the State Bar letter.
Bill read aloud, "Respondent's attorney was unfair in asking the same questions in different ways and in arguing with the Complainant's attorney when he properly objected. This resulted in a violation of Rule 3.04 (5) by engaging in conduct intended to disrupt the proceedings."
They were both silent as they considered the allegations. "Okay," said Bill, "I understand that this complaint probably has very little merit. You were just doing your job, and the Judge was there to make sure there was no improper interference with the proceedings. But the task at hand now is responding to the Committee. Of course, we will need to get a transcript of the cross examination. The transcript will also have the objections and the rulings," he said, "and I expect that's about all we need in the way of documents. You need to make sure you file your response timely. When I was on the Committee, the last thing you wanted to do was ask for a continuance because you didn't respond."
Gwen groaned. "What should I put in the response?" she asked as she sank into the chair in front of Bill's desk.
"Keep it focused," Bill replied. "Stick to the issues, and state the facts," he added. "Rule number one is to file a response, and rule number two is to get in touch with the investigator. As soon as we are done here, you need to contact the investigator and let him know you are getting the transcript. Tell the investigator that I will be representing you."
Gwen's jaw dropped as she exploded, "You think I need a lawyer?"
"In this case, no, I don't," Bill said in his most soothing voice. "But it's always a good idea to either hire a lawyer or at least consult with a lawyer when you have had a complaint filed against you." Bill explained to Gwen that, in her present state of mind, it would be very difficult for her to be objective in reviewing the evidence presented to the Committee.
Gwen continued, "Will I have to go to a hearing?"
"Probably so, Gwen; but that won't be for another month or so, and we will be well prepared."
Gwen looked up from her notes and began ticking off items as she said, "Let me get this straight. I need to file a response and get it in within thirty days from today. I need to talk to the investigator and tell him what documents I am going to produce and that you will be representing me."
"Right," Bill answered, "and remember, fight the facts, not the Committee."
The shock of receiving notice of a grievance from the State Bar was right up there with "There's a problem with your law degree," or "We, the jury, find for the other guy, Gwen!"
But Gwen felt a little better as she finished preparing for the hearing scheduled for this afternoon. With the help of her boss, Bill Wisdom, she had filed her response well within the thirty days required by Rule 2.09, attaching the transcript of the cross-examination she conducted. In her conversations with the State Bar Investigator, she made sure to mention the transcript, and that Bill Wisdom would be representing her. She also had her entire file page-numbered and indexed.
Gwen did not look up as Bill walked into her office. "Are you about ready?" Bill asked as he slipped on his coat.
"I don't think I'll ever be ready," she said, poring over last minute notes. "Could you go over the game plan one more time?" Despite the confidence she had developed over the past month, Gwen was obviously becoming uncomfortable with the hearing just a few hours away.
"Sure thing," said Bill. "The panel will be in the hearing room when we arrive. Your hearing is the third one of the day. There will be a Chairman, who is an attorney, three lawyers, and two public members."
"What are public members?" Gwen asked.
"They are members of the community who come from many professions and walks of life, but are not lawyers," Bill replied. "Some people like to say they ensure that people with complaints get a fair shake." Bill continued, "The Chairman will start the hearing by calling the case and the case number. He will then spend a few minutes explaining that the purpose of the hearing is to gather evidence concerning the complaint." Bill could see that Gwen was soaking up every word he said. "It is important to remember, Gwen, that the committee is not there to solve legal problems between the parties, but to protect the public by making sure that attorneys conduct themselves according to the rules." Bill explained that the hearing was not a civil trial or a criminal proceeding, but really more of an informal administrative hearing.
Gwen was a little confused about exactly what she was going to go through. "Bill, I don't get it. If this is informal, then why is all the testimony taken under oath?"
Bill sat down in front of Gwen's desk. "Gwen, I don't want you to get to concerned about the process. There is a record made of the testimony which can be used in the event there is a District Court trial or an evidentiary hearing."
Gwen's eyes widened as she heard the words "District Court" and "evidentiary."
Bill said, "Don't get ahead of yourself, Gwen. If we need to, we'll talk about those hearings later. For now, you need to keep your head clear and focus on the hearing today."
Gwen nodded. "You know, it's a little ironic, Bill, that the complainant filed this grievance based on the cross examination I did at the trial, and today you will be cross-examining him again on his grievance complaint." Gwen snickered. "Maybe his next complaint will be against you!"
Bill smiled at the thought, then pointed out to Gwen that all questions between the parties have to be directed to the Chair, who then decides if the question is appropriate. If it is, then the Chair will ask the party to respond.
"That's too bad," said Gwen. "I was hoping to see the master at work."
Bill stood up and seemed more serious. "Actually, Gwen, this is not the best time for courtroom fireworks. It is not a good idea to attack the complainant in this hearing. Of course, we will make our case as to credibility and motive," Bill said, "but if the guy is lying or has an evil motive, the panel will recognize this without us having to challenge him."
As they got up to leave, Gwen said with a smile, "You're my lawyer, and I intend to take your advice."
As they drove to the State Bar of Texas office for the hearing, Bill and Gwen chatted about the firm's annual party. He had a good feeling about his newest client and could see that she was cool, calm, collected, and ready. Later that day, Gwen was introduced to the members of the panel.
The Chairman, below a red blinking video light, said "I am calling this hearing to order. . ."
When Gwen heard the Chairman announce that she would be notified by mail of the Committee's findings within thirty days, she knew the hearing was over. She was proud of the job she had done at trial and proud of the defense that Bill presented to the Committee.
That night, Gwen sat on her patio watching the night sky change shape with each passing cloud. She thought about the hearing she had dreaded for nearly a month and a half. It went exactly as Bill had outlined. The panel consisted of four lawyers and two people from the community. They were all polite, professional, and keenly interested in the merits of the complaint. She was amazed at how well they knew the details of the complaint and her response. Her nightmares had been about the rack and the Inquisition.
She had done precisely what Bill suggested. She was focused, brief, and kept her cool. Her defense was simple, direct, and based on the reality that the Grievance Committee is there to protect people from the unethical practice of law. Although it was hard for her to understand at first, the Committee was there for her as well as the public. Having a process to decide whether a lawyer's actions are ethical is as much a part of the legal profession as the lawyers. She now realized that her imagined inquisitors were really dedicated volunteers with tremendous collective insight and understanding of the practice of law and the public's perception of lawyers. Gwen sighed, stretched into the night, and commented to no one in particular, "I guess it's just one of the things that makes it worth being a lawyer."
Gwen had been out of town for the past two days, attending depositions for her boss, Bill Wisdom. It had been three weeks to the day since Bill had represented her in an Investigatory Hearing before the State Bar Grievance Committee. Gwen checked the mail every day for the results of the hearing. The Panel Chair who presided over the hearing said the findings of the Committee would be sent to her within thirty days. She felt pretty good about the hearing but could not decide which was worse: a complaint being filed, having to attend a hearing, or waiting for the decision of the Committee. It was about 2:00 in the afternoon when Gwen returned to the office. She wheeled her folding cart loaded with briefcase and banker boxes through the front door, waving hello to her secretary, Anna.
"Hi, Gwen, How were the depos?"
"Just fine," said Gwen, smiling at Anna's greeting.
Before Gwen could say another word, Anna, anticipating the question she had been answering for the past three weeks, said, "Nothing from the State Bar today, Gwen."
Gwen sighed, said "Thanks, Anna," and headed for her office. The "no news" news was becoming a curious conundrum. Should she be relieved that "no mail" meant there were no complaints from the State Bar? She remembered the day she took the notice of complaint from the Grievance Committee into Bill Wisdom's office. Even though she had just won her first trial and was "flying high," the mail she received that day was a killer.
On the other hand, she realized that the "no news" news meant she had another twenty-four hours to contemplate what the Grievance Committee was likely to do with the complaint filed against her.
She realized that her anxiety was probably wasted energy. Gwen had followed Bill Wisdom's advice to the letter. Her response to the complaint was short, direct, and confined to the issues. She did everything she could to cooperate with the State Bar investigator and her staff. She thought the Committee would find that there was no misconduct and vote to dismiss the complaint. But then, passing the bar exam didn't make waiting for the results any easier.
Gwen's phone rang her back to the present. "How were the depositions, Gwen?" The call screen told her it was Bill calling from his office at the end of the hall. Gwen briefed him on the depositions she had spent the last two days taking. Bill seemed pleased with what she had to report. He thanked her for a job well done and then said, "Gwen, stop by my office when you get a chance. I have a letter you may be interested in."
Gwen was out of her office and in Bill's before he could hang-up the phone. "What's up?" Gwen said, as she slid into the leather wing back chair in front of Bill's desk.
Bill wondered how she did that and chalked it up to youth. "Got a letter from the Committee today," Bill said, as he handed Gwen the envelope bearing the seal of the State Bar of Texas. Her breath stopped as she debated with herself whether she should open it. Bill said, "Because I'm your attorney of record, this was sent to me, but I thought you would like to be the first to read it."
Gwen removed the letter, and read out loud, "... no misconduct ...dismissed." Gwen relaxed back into the chair and, for the first time in two months, felt completely at ease.
"You're home free," Bill said as she gave him the letter.
"Thanks, Bill," said Gwen. "I can't tell you how much I appreciate everything you've done for me. It's hard to believe it is finally over!"
Bill Wisdom watched as the color came back into Gwen's cheeks. He could actually see the weight lifting from her and hated more than anything what he knew he had to say. "Gwen, it might be finally over." Bill continued, "Look at the last paragraph, Gwen. The vote was five to one in favor of no misconduct and dismissal." Bill explained to her that if the vote had been unanimous the Complainant could file a new complaint but only based on new evidence that had not been presented to the Committee. "Anything less than unanimous means you win, Gwen, but the Complainant can ask for a new hearing before a different panel."
Gwen was on her feet now, nearly in full attack mode. "How long does the Complainant have to ask for another panel?" asked Gwen.
"Thirty days," said Bill.
"So, if the Complainant asks for a new hearing in the next thirty days, then we have to go through the whole thing all over again?" asked Gwen.
"No," said Bill.
"The complaint and the response stay the same. The only thing that happens is an Investigatory Hearing De Novo." He continued, "The new panel will review the file as if it had just received it for a hearing. When it is scheduled for hearing, we will present our case in much the same way we did three weeks ago." Bill went on, "Gwen, the odds are it's over and done with, and I really doubt there will be any more to this."
Bill and Gwen stared at each other, their heads turning in unison to the tapping on Bill's door. Anna stuck her head into the office and handed Gwen a FAX. Her head pulled back and disappeared behind the click of the closing door. They looked at the FAX addressed to the State Bar Grievance Committee in silence. It was their copy.
Gwen was reviewing answers to discovery as they scrolled against the blue background of her monitor when she caught her own reflection in the screen. She wondered whose face would be looking back from the computer in her office when she woke up from her "Grievance Committee nightmare." In the summer of last year, she had tried a simple divorce case, her first, which she had won. It was a big day in her life, to say the least. The former spouse of her client filed a State Bar grievance against her, claiming that she had been unfair and disruptive. The "nightmare" was getting worse, and today was no exception.
Forty-five days earlier, her boss, Bill Wisdom, who was also her attorney of record, had received a letter from the State Bar informing her that the Committee had voted "no misconduct." The complaint filed against her had been dismissed. Gwen was elated as she read the exonerating words again and again, making sure that she got it right. The letter was still cool and crisp in her hand when, as though directed by some evil anti-celebration troll, her secretary Anna handed her a document that would become known as "The FAX." In the midst of Gwen’s celebration, this document notified her of the complainant's request for a rehearing before a new panel.
Bill had explained that he could ask for another hearing because the first panel's vote was not unanimous. The complaint would be presented to the new panel in exactly the same form. The new panel would conduct an investigatory hearing de novo without being informed of the first hearing or the results. And that is exactly what happened, although this time the State Bar letter had arrived today, two weeks after the hearing.
Gwen had felt pretty good about the first hearing; and her feelings were validated by the finding of no misconduct and a dismissal of the complaint. The second hearing had gone even better, and she was sure the results would be unanimous. It turned out that they were.
Gwen's gaze shifted from her own reflection in the computer screen to the tiny sparkles from city lights awakened by nightfall. She looked at her watch and wondered where the day had gone. What a day it had been. "I'm too young for this," she said to her reflection as the monitor faded to black.
"Uh oh!" she heard Bill say as he rounded the corner into her office. "Got you talking to yourself."
Gwen nodded as she packed up her brief case. "Bill, I have serious doubts about my future as a lawyer."
Bill knew exactly what she was feeling. He also knew there was nothing he could say or do to lighten the mood. Gwen was in a fight, and while he could be an advisor, confessor, and friend, he knew Gwen was the only master of her emotions. "How about a Raspberry Mocha Latte?" Bill said as they left the office for the day.
Gwen and Bill found a couple of over-stuffed chairs in the coffee shop and settled in. That morning they had both read the most recent letter from the State Bar enough times to commit it to memory. The new panel had considered the evidence and unanimously found that Gwen had committed professional misconduct. She was being given an opportunity to resolve the matter while the committee still had jurisdiction.
Bill explained to Gwen that she had ten days to make a decision. The Grievance Committee had made a “just cause” determination that she had violated Rule 3.04(5) by engaging in conduct intended to disrupt a proceeding. They were referring to the complainant's allegation that her cross-examination and exchanges with opposing counsel were disruptive during the trial. After finding that Gwen had committed professional misconduct, they voted unanimously that she be publicly reprimanded.
Gwen had been deep in thought ever since Bill explained that as long as the Grievance Committee retained jurisdiction, the matter was negotiable. Once the Committee lost jurisdiction, then the complaint would be heard by an Evidentiary Panel of the Grievance Committee or in a trial de novo in state district court. Gwen peered at Bill from the safety of the big chair with only her eyes visible over the coffee cup and asked, "So, if I go to the Committee and offer to accept a private reprimand, do you think they would go for it?"
"Gosh, Gwen, I sure hope they would because that's the only way you could get a 'private.'" Bill winced at the notion of her being sanctioned at all. He truly believed that she was in the right, and that there had been no misconduct at all.
"What do you mean?" Gwen asked.
"Well, Gwen, once the Committee loses jurisdiction, the sanction of a private reprimand is no longer available. So," Bill continued, "if you go to an Evidentiary Panel Hearing or into district court and you are found to have committed misconduct, the sanction would be at least a public reprimand." Bill pointed out that the rules specifically exclude private reprimands as a sanction available to Evidentiary Panels or district courts. “Both the district court proceeding and the Evidentiary Panel Hearing are open to the public, so a private reprimand really would serve no useful purpose,” he said.
Gwen put down the cup, leaned forward taking a breath, and said, "Bill, I don't want to negotiate. I didn't spend the last eight years to get this far and just give up. I want to have the Evidentiary Panel Hearing. I think I can convince them that if I had done any less in court than I did, my client would have paid for it."
Bill was struck by the calm resolve in Gwen's voice. Gwen lifted her index finger and tapped her chest. "I am willing to pay for this."
Bill was really proud of his youngest lawyer and said, “Gwen, I think you already have."
Gwen grabbed her purse and said, "Actually not, Bill. We pay on the way out." She smiled and headed for the cashier. Bill smiled for real for the first time all day and noticed the spring in her step.
"OK, Big Time," Bill said. "First thing tomorrow we need to draft a letter to the Committee electing an Evidentiary Panel Hearing and then start working on our witness list and testimony. This time we get to ask the questions."
Gwen smiled. "Big Time? I guess so," she continued "Now, I get to see my lawyer in action."
Gwendolyn Gewurztraminer, (apologies to Gary Anderson), graduated from law school in 1999 and was licensed to practice in Texas in 2000. She was really excited when she was accepted as an associate in Bill Wisdom's firm. The position was considered to be a career milestone and the competition had been fierce. She had been with Bill for nearly a year, when, on the heels of her first verdict in a District Court, a State Bar Grievance was filed against her by her client's former husband.
With Bill Wisdom's help, the complaint against Gwen was dismissed after the first hearing, but the Complainant asked for a new hearing before a different panel. After the rehearing, the Grievance Committee panel found misconduct and offered to negotiate a sanction with Gwen. Despite the fact that this would be her only opportunity to settle for a private reprimand, Gwen decided to ask for an Evidentiary Hearing. Bill had really been helpful and had provided her with sound advice, so it was with painful hesitation that she called Bill on the office intercom.
"Good morning, Bill," Gwen's voice cracked into the receiver. "Hey, Big Time!" Bill responded in his typical upbeat fashion. "How are you doing?" he asked. Gwen steeled herself and said, "Bill I have someone in the conference room who needs to meet you." "I'll be right down." The tone in her voice and his curiosity caused Bill a little concern, but after twenty-five years of practice, he was usually ready for anything. Bill opened the door and saw Gwen seated at the long table with a distinguished-looking gentleman. Bill went up to him and extended his hand. "Good morning, I'm Bill Wisdom." The man rose from his seat and smiled taking his hand, "Good to meet you, Bill. I'm Jack Easter."
"So what's up, Gwen?" Bill asked as everyone settled in at the conference table. "Bill," Gwen began, "Jack is going to represent me in the Evidentiary Hearing." Bill was silent. He thought about this revelation and decided that it made perfect sense. "I think that's a great idea, Gwen. I can't talk about the particulars, but I remember Jack from my days on the committee." Bill noticed the awakening familiarity flash across Jack's face. "Of course!" said Jack. "I thought I recognized you."
Jack seemed a little more comfortable and Gwen felt as though a weight had been lifted from her shoulders. After Bill and Jack exchanged "war stories" about cases that had brought them into contact over the years, Bill said, "Gwen, Jack is one of the best in the grievance defense business. You know I will help you if I can, but I must say I am impressed with your decision and the lawyer you have chosen." Bill continued, "Jack, please let me know if I can help. I know you two have a lot to discuss." Bill waved at them as he left the room.
"Thanks, Jack," Gwen said. She continued, "That was the hardest thing I've ever done. Bill has been so good to me through this complaint process, but I just don't think he can be impartial." Jack nodded agreement and said, "Well, Gwen, he is your employer and I know he is personally convinced that you have done nothing to violate the State Bar Rules." Jack folded his arms as he sat back in his chair. "With a vindictive complainant like the one in your case, Gwen, you are more likely than not in this for the long haul." Gwen groaned at the thought and said, "Well I guess it all begins here," as she handed Jack a copy of the Proposed Hearing Order. "This came in the mail yesterday and as I understand it we have to file a response. Is that right, Jack?" Gwen asked as Jack reviewed the stack of papers.
"Yes, Gwen, that's correct. Within twenty days we have to file a responsive pleading that either admits or denies each of the charges in the written statement of charges." Jack went on, "If we need to modify the Proposed Hearing Order filed by the Chief Disciplinary Counsel, we file our own proposed order at the same time." Gwen asked, "What happens if we don't respond?"
Jack explained to Gwen that the failure to respond can have dire consequences. If the respondent in the Evidentiary Hearing does not answer the charges by either admitting or denying them, then it is considered a default and all of the factual allegations will be taken as true for purposes of the Disciplinary Action. Jack pointed out that the rules permit a showing of good cause in the event there is a default and the panel can then allow a responsive pleading and proposed order for the Respondent.
"I don't think we will need to file a verified motion reflecting good cause," Gwen said. "But I am concerned about the proposed order. Exactly what does it contain and do we need to prepare our own order?" Gwen asked. "The order has to contain at least what the rules specifically require," Jack said as he handed the order to Gwen. He turned the page and referred to the first exhibit. "This is a list of all witnesses that are expected to testify. In your case there are not that many, but in some cases this would include people who will testify by deposition and in person and will have their addresses and telephone numbers."
Gwen read the list and asked Jack, "This has my name and the Complainant, but it also has the name of the State Bar Attorney as a witness. Why is he listed as a witness?" Jack explained that the State Bar is entitled to recover attorneys' fees and the Chief Disciplinary Counsel usually testifies in support of the fees. He then turned to the next exhibit and said, "Here are the summaries of the testimony expected from each of the witnesses. As you can see, the attorney will testify that the attorney fees are $750.00."
Jack went through the rest of the order and discussed the written summary of the issues of fact that were being contested, the list of exhibits expected to be presented, and the estimated time for presentation of the case to the panel.
"This seems to be fairly complete," Gwen said. "Based upon what you have told me about your case, I would certainly agree," Jack replied and then said, "Gwen, I will substitute in for Bill as your attorney of record and will prepare a draft response for your review. The hearing will not be set for another month or so. But in the meantime," Jack continued, "I am going to file a verified request with the committee for the deposition of the attorney who represented the Complainant in the case that you tried." "You can do that?" asked Gwen. "Well, Gwen, it's discretionary with the evidentiary panel, but I think they will let us have our deposition."
Just then, Gwen's secretary knocked at the door and handed Gwen a note. Gwen read it and then looked up at Jack. "Some guy named McWilliams is asking me to tell you he says 'thanks'?" Gwen was dumfounded. Jack said, "And he should, Gwen, I helped him out with an article he was writing!"
Jack Easter gazed at the setting sun from his office on the 21st floor of a popular downtown high rise and wondered what he would do next. The grievance against Gwen was filed by the defendant in a lawsuit Gwen tried last year. She won the case, but the defendant claimed she had taken unfair advantage in the trial court. Gwen had been through two investigatory panels and, most recently, an Evidentiary Hearing. Jack had represented her and thought Gwen's Evidentiary Hearing went exactly according to plan.
Jack's ponderings took him through each phase of the hearing as he mentally critiqued each witness and all of the evidence. The hearing only took a couple of hours. The Chief Disciplinary Counsel made a brief opening statement and called three witnesses, all of whom were present at Gwen's trial. They testified that they were often confused with what was going on because they were not attorneys and thought that Gwen's performance was "very TV."
Then, the State Bar's attorney called Gwen. She told her story as she had in the two previous hearings. She was proud of the service she provided to her client and of her advocacy skills. She was very convincing when she emphasized her commitment to her client and the law. Upon Jack's request, the panel let him take the deposition of Todd Pytoon, the complainant's attorney in the trial. Jack thought that Todd's testimony would persuade the Evidentiary Panel that Gwen's conduct at trial was not intended to disrupt the proceedings in the alleged violation of Rule 3.04(5). Jack focused primarily on Pytoon's testimony that Gwen tried a tough, honest case. Jack and the State Bar attorney made their closing remarks, and the hearing was adjourned for panel deliberation.
Jack recognized that the presiding member's rulings on evidence do not have to strictly comply with the Texas Rules of Civil Evidence, but even under the rules, there would be no reversible error. He was satisfied that Gwen had gotten a fair hearing, although he was very disappointed with the results.
Gwen walked into his office and said, "Hey, Jack, that's a great view from up here; sorry I'm late but I just escaped from a marathon mediation." Gwen was her typical effervescent self, happy in her work and in her life. She knew the news was bad but gave Jack a warm smile more for herself than him. It would be easy to unload on Jack. She wouldn't be the first client to shift the focus from where it needed to be to her lawyer. She was convinced that Jack was the best representation she could hope to have, but in the long run, it was her fight to win or lose. "So what did they give me, Jack?"
"Fully probated suspension for sixty days, provided you attend an MCLE course on court room ethics within the next six months," he said, as he dropped the order on the desk in front of Gwen.
"So, let me understand this," Gwen said as her voice crescendoed, "I go into court, work the evidence, this guy Pytoon fights me tooth and nail, and the guy who was cheating on my client gets me suspended for two months?" Gwen took a breath and whispered, "Where do they come up with a sanction like that?"
Jack reminded Gwen that in an Evidentiary Hearing, private reprimands are not available. "The sanction is based on a number of different things," Jack said. "The Evidentiary Panel looks at the nature of the misconduct, how serious it may be, and whether the profession has been damaged." Jack went on, "The panel is really concerned with avoiding repetition, overall respect for the profession, and deterrence. In your case, Gwen, you haven't had other complaints, but the panel can take that into consideration as well."
Gwen was on her feet now, tracking the design on the oriental carpet in the middle of Jack's office. Jack watched as she seemed to be meditating on a labyrinth. Gwen stopped and without turning to face Jack said, "I have the right to appeal to the Board of Disciplinary Appeals."
Jack walked over to her and said, "You could have had a private reprimand. I respect your decision to go to the Evidentiary Hearing, but now you've done that. You can end this right now with a suspended probation. Think about it," Jack said as he now faced her.
"Tell me about the appeal, Jack." Gwen pressed on, insisting that Jack give her chapter and verse on the appeal process before making any decisions. Jack pointed out that the Respondent, or any of the parties may appeal to the Board of Disciplinary Appeals. The notice of appeal had to be filed within thirty days from Gwen's receipt of the decision of the Evidentiary Panel. Gwen sat down and listened to Jack as he explained the substantial evidence standard and the importance of the record on appeal. As Jack recited the State Bar procedures, she began to doubt what she was doing and where it might ultimately go. She knew that this fight was taking its toll on her, the firm, and her boss, Bill Wisdom. She was already at the point where all of her efforts seemed to make matters worse.
Gwen went home that evening plagued by indecision and doubt. She resolved to commit to a course of action before the end of the next day.
Gwen had been at her desk since 6:00 a.m. when her secretary called her on the intercom to let her know she had a call from Jack Easter. "Good morning, Jack," Gwen said. "I promise to let you know my decision before the end of the day. If I don't get anything else done, it's going to be that."
Jack's voice came through the receiver and she could tell he was on the speakerphone. She heard a flurry of activity in the background as Jack said, "Gwen, don't worry about what you will do. The decision has been made for you."
Gwen was puzzled. "What are you talking about, Jack?"
He picked up the receiver and said, "Sorry, Gwen, I was packing my briefcase, and I have to run, but I wanted you to know that the Complainant has filed a notice of appeal." Jack continued, "He is contesting the sanction and is claiming it is too lenient for the wrong that was done to him."
Gwen was stunned. "You mean I'm headed for the Board of Disciplinary Appeals whether I want to or not?" Gwen asked.
"That's right," Jack said. He reminded her that the Complainant can also appeal, even if it is just the sanction. Jack went on, "I will begin working on your brief and will file notice of our intention to appeal the finding of misconduct. Listen, Gwen, I'll go over this with you in more detail later this week."
Gwen hung up the phone and leaned back in her chair. She remembered the day she got the original complaint and Bill Wisdom told her, "I understand that this complaint probably has very little merit. You were just doing your job. . . ."
She sighed and thought, "Maybe the Board of Disciplinary Appeals will see it that way."
Gwen had just returned from her meeting with Jack Easter and was reviewing the brief that he filed with the Board of Disciplinary Appeals. She was in a much better frame of mind since receiving Jack's frantic call several weeks ago. Plowden Torme, the complainant in the action, had sent Jack a notice of appeal contesting the sanction of a fully probated suspension for sixty days. Gwen was surprised by this move and became somewhat hostile about the fact that she didn't have the chance to accept the sanction or file her own appeal. In any event, her case was on the way to BODA.
Gwen's phone rang, and the receptionist said, "Gwen there's a Mr. Tyler Toozer in the waiting room who wants to speak to you about Mrs. Torme."
"Who is he?" asked Gwen, "And who is he with?"
Gwen's receptionist replied, a little defensively, "I asked him Gwen, but he wouldn't tell me, didn't want to talk to me, and quite frankly he was pushy to the point of rudeness!" The receptionist was becoming quietly agitated as she continued, "In fact, he didn't even ask, he told me he was here to see you!"
Gwen wondered what was up as she hung up the phone and made her way to the front of the office. Destiny Torme was her client and the former wife of Plowden Torme. Destiny and Plowden had been married for eight years. Destiny was in a state of severe depression when she hired Gwen to divorce Plowden. Destiny called him Petey, which actually came from his initials -- P.D. Apparently, Plowden did not like his full name. According to the psychology reports discovered during the litigation, his mother used to call him Plowden when he was being disciplined. During the trial, Gwen used his full name and gained some advantage during cross-examination. He didn't like it then, either!
She had not seen Destiny since the trial. Gwen had received a phone call from her about three months ago. Destiny gave her a temporary address and phone number with specific instructions that she was not to let Plowden have the number. Destiny told Gwen that her former husband had been harassing her.
Gwen opened the door to the waiting room and saw Tyler Toozer. She did not recognize him. The man in the waiting room was easily over six feet tall and weighed no less than 250 pounds. He was dressed in blue jeans with a black tee shirt and a black sports coat. He was pleasant looking, in a very rugged, hard-fought frame, and seemed to be between 35 and 40 years of age.
"Is there something I can do for you, Mr. Toozer?" Gwen stood by the door as it gently closed behind her.
"Yes", he said. "I need all of the information you have on a Ms. Destiny Torme."
Gwen was somewhat intimidated by his demand and said, "Exactly who are you, Mr. Toozer, and what makes you think I am going to discuss my client with you?"
The man looked over at the receptionist as though to say, "You didn't tell her?" He approached Gwen and handed her a card. Gwen saw the state seal and read "Detective Tyler Toozer, Homicide Division."
Now Gwen was startled. "Is something wrong with my client?" Gwen demanded.
Tyler Toozer was impressed with Gwen's strength and replied, "I really wouldn't know, Ms. Gewurztraminer."
"Gwen," she interrupted.
"You see, we don't know where she is, and we would really like to talk to her,” Toozer explained. Gwen motioned to the adjacent conference room and invited the detective to step in. She closed the door behind her as Tyler Toozer slid into a chair with his back to the window.
"So what's the deal?" asked Gwen.
Tyler leaned into the center of the conference table and looked squarely at Gwen. "Last night Plowden Torme died."
Gwen returned Tyler's gaze as her breath caught. She knew that he noticed this, and she said nothing.
Tyler continued, "We don't have the official cause yet from the Medical Examiner, but I suspect it will be the bullet they pulled from his chest at the Emergency Room." Toozer sat back in his chair and folded his arms. "We got your name from a routine courthouse records check on Destiny this morning, figured you might be able to help us, bein' an officer of the court and all."
"Is my client a suspect?" asked Gwen.
"Should she be?" asked Toozer.
"Well, that's not my point" said Gwen. "I can probably contact her," continued Gwen, "but I am not in a position to provide you with any information about my client."
Toozer seemed put off and said, "Gee whiz, here's how the cow eats the cabbage." He went on, "(A) she knows her ex is in the real estate business, (B) she doesn't, (C) she has joined him, or (D) she's about to."
"I understand," said Gwen. "I'll try to contact my client, and either she or I will be in touch with you." Gwen stood up. "Thank you, Detective Toozer."
"One other thing," he said as Gwen was leaving the room. "I also came across another name at the courthouse.” He continued as Gwen turned around. "Todd Pytoon represented the 'former' former husband."
Tyler got to his feet and walked toward the door. "Pytoon told me that Plowden filed a State Bar complaint against you, and that he has been giving you fits over it."
Gwen shifted her weight to one leg and put her hand on her hip as she said, "So, now I'm a suspect -- is that what you're saying?"
"Not at all, Gwen. Should you be?"
Gwen went back to her office, called Jack Easter, and asked him to come to her office. After she briefed him on her meeting with Tyler Toozer, she asked Jack what effect this would have on the appeal. Jack explained to her that he didn't know and would have to research the procedural results of the death of the complainant.
"Say, Jack," Gwen asked, "I thought the grievance process was confidential. Where does Todd Pytoon get the right to talk to this detective about the complaint?"
Jack explained to Gwen that the complaint process is confidential up to the point of a trial or an Evidentiary Hearing. At that point, the hearing is open to the public, and upon a finding of just cause, information can be made public upon request.
Gwen then asked Jack, "You're still my lawyer, right?"
Jack nodded and asked Gwen what was wrong.
She went on, "I need to talk to you about Plowden Torme. I think I am a suspect, and when Toozer finds out my client has been out of the state for the last three months, I know I will be a suspect."
Jack looked at his client and with sadness in his voice said, "Gwen, you didn't have anything to do with this, did you?"
Gwen and her attorney, Jack Easter, spent several hours discussing Plowden Torme's demise and how it would affect the grievance process. Although there was no specific procedure, Jack was of the opinion that Torme's appeal would either be dismissed, or the findings of the evidentiary panel would be affirmed. Gwen could appeal the finding of “just cause,” but there would be no point in returning it for a second hearing.
Gwen had met her client, Destiny Torme, about a year earlier. At that time, Destiny sought a divorce from Plowden Torme. Bill Wisdom, Gwen's boss since she graduated from law school, referred to it as a simple divorce with no children, just "pots and pans." Plowden was not at all interested in getting divorced and demanded a jury trial. Gwen won the case, her first jury trial. Destiny was thrilled with the result, but she was still fearful of Plowden. Destiny moved to another town, leaving Gwen her new address and telephone number with specific instructions not to release the information to anyone. Gwen couldn't have imagined the brew that would bubble up from her first jury trial.
After the trial, Plowden Torme filed a grievance against Gwen, claiming that she was unfair in her cross-examination of him and that her actions and conduct disrupted the proceedings. Since then, she had been through two panel hearings, an evidentiary hearing, and two appeals, one of which was pending. To make matters worse, just days after she filed her responsive briefs with the Board of Disciplinary Appeals, Plowden was fatally shot in the chest. Soon after, the investigating officer visited Gwen.
Detective Tyler Toozer wanted Gwen to tell him how he could get in touch with Destiny. His concern over Destiny’s whereabouts was motivated by the possibility of harm to Destiny, and also, Gwen suspected, because Destiny was probably a suspect. Toozer was aware of Gwen's history with Plowden and the grievance committee. He seemed to suggest that Gwen was a suspect as well. Gwen had tried unsuccessfully to contact Destiny several times. Toozer was anxious for the information, but Gwen needed to talk to Destiny first.
Destiny finally called Gwen. She was extremely upset, but not over Plowden’s death. Tyler Toozer had located Destiny and informed her of Plowden’s death. Destiny was convinced that Gwen had violated her confidence by releasing her address and telephone number without permission. Gwen was in a state of shock, flooded with memories of the past events and unable to reconcile any of them. Her client, who had been so pleased with her representation, was now threatening to have her disbarred.
Gwen contacted Jack Easter. Jack couldn't meet with her until the next day. He tried to encourage her by noting that this was clearly a misunderstanding. Gwen understood, knowing full well that she had not provided any information to Tyler Toozer regarding Destiny’s whereabouts. Gwen was reviewing medical records when the receptionist told her she had a phone call. “Hi, Gwen. This is Boots Pegleren with the State Bar CAAP office. Do you have a few minutes to talk?”
Gwen replied, “Yes, I do, but tell me again who are you with?”
“Right,” said Boots. “We are so new that's always the first question. Boots explained: “I work for the Client-Attorney Assistance Program of the State Bar. What we do, Gwen, is help attorneys and their clients resolve problems that don't appear to involve actual violations of the Rules of Professional Conduct.” Boots continued, “Before we opened our office, a lot of complaints went to the grievance committees that just didn't need to be there. The State Bar thought it would be a good idea to provide a neutral forum where the misunderstandings could be resolved without having to file a grievance.”
“Well, I think that's wonderful,” said Gwen.
Boots sighed and said, “I'm so glad to hear you say that, Gwen!” “You see,” Boots was excited now, “I'm an attorney, and we screen calls from folks who call the Grievance Information Hotline to file complaints. If the complaint does not seem to be a violation, we offer our services to help the client and the attorney solve the problem.”
“So, Boots, what can I do for you?” Gwen asked.
“Gwen, it's what I can do for you,” Boots said. Her voice changed to what was clearly a business tone as she announced the purpose for the call. “We received a call from your client, Destiny Torme. She called the Hotline to file a complaint against you.” Boots went on, “The good news is that she agreed to CAAP intervention rather than filing a grievance at this time. She claims you released information about her to the police department without her permission. When we discussed it further, it was pretty clear to us she was assuming you were the source of the police's information, but she didn't really know that for sure.”
Gwen had anticipated something would happen. After all, Destiny threatened to have her disbarred. Gwen explained to Boots the meeting she had with Detective Toozer and her refusal to provide confidential information to him. Gwen said, “I had been trying to contact Destiny for two days to get her permission. The next thing I know, Destiny is on the phone reading me the riot act." Gwen suggested that Boots contact Tyler Toozer and ask him how he obtained Destiny’s address and phone number.
“That's a good idea, Gwen,” Boots replied. “I already have a call in to him. If it's all right with you, I'd like to set up a conference call with you, your client, and the officer.”
“It's okay with me, if Destiny agrees,” Gwen said, “but I want you to make sure the police officer doesn't ask her any questions during the conference. All I want discussed is the source of his information.”
Boots assured Gwen that the conference call would be limited to the source of the officer's information. As it turned out, Tyler Toozer was very forthcoming during the call and insisted that he got Destiny's telephone number from a traffic ticket that had been logged into the state system when Destiny had been in the state two months earlier. Destiny agreed to meet with Tyler.
After the conference call, Destiny asked Gwen if she would represent her in all matters concerning the death of Plowden. Gwen explained to Destiny that she probably could not represent her and would explain why when Destiny returned home. She told Gwen that because Plowden was no longer a threat, she could live at home without fearing retaliation for the divorce. Gwen was not looking forward to her meeting with Destiny. She wondered how she would reveal to Destiny that she was also a suspect in the death of Plowden Torme.
The day following Gwen's "hands on" experience with the Client Attorney Assistance Program intervention, Bill Wisdom returned to the office. Gwen told him all about the CAAP call from the lawyer, Boots Pegleren. Bill had heard talk of the program, but it hadn't been active in their town. He was amazed at how well it worked in resolving Gwen's misunderstanding with Destiny Torme. Bill's concern, however, went considerably deeper than Destiny Torme's anger over police department sources.
"What's going on, Gwen?" Bill Wisdom had been Gwen's boss for nearly two years. She came to work for his firm right out of law school and had proven to be a smart choice. The last few months, though, had been stormy, to say the least. Gwen had been the subject of almost everything the State Bar Grievance process had to offer. Now, on the heels of an appeal to the Board of Disciplinary Appeals, the complainant, Plowden Torme, had become the victim of a homicide, and Gwen was right smack in the middle of it.
"Bill," Gwen said, "I am afraid the horses are out of the barn." Gwen gave him a weak smile and continued. "My goose is cooked; stick a fork in me, I'm done."
"What are you trying to tell me, Gwen?" Bill didn't think any of this was funny.
"It's real simple, Bill." Gwen was shaking as she repeated the litany of hearings and appeals she had gone through because of Plowden Torme's complaint. She then described her confrontation with detective Tyler Toozer and his veiled remarks that she was a suspect in the death of Plowden Torme. "And now," Gwen continued, "I've got one great big mess with my client, Destiny, who is on her way over here as we speak!"
Bill's jaw dropped as he listened to Gwen exploding with frustration over all she had been through. "Take it easy, Gwen," Bill said, as he tried to get a grip on what was next. "Why is Destiny coming here?"
"She has a meeting with Tyler Toozer this afternoon, and she expects me to be her attorney." Gwen's arms were folded in a death grip as she took three quick steps and then reversed direction. She was speaking to the floor, but Bill had no trouble hearing her.
"Has anyone been charged with a crime?" Bill asked.
"No," she said, increasing the speed of her three-step process. "But the way it shakes out, Bill, is not good for the home team. You see, as between me and Destiny, I am the one who was here in town, had a motive, and had no alibi on the night Plowden was shot. Destiny wasn't even in the state, and the only motive she might have was a life insurance policy on Plowden that we tried to have cashed in and distributed in the divorce. It's a big one, a couple of million dollars, and Destiny was the beneficiary."
"Destiny may have been the beneficiary before the divorce,” Bill said, “but she isn't anymore; you know that, Gwen."
"Right," said Gwen, "and that only leaves the freaky lawyer with the never-ending grievance!"
Bill studied the floor that Gwen had been addressing and nodded. "Holy Torme, batman," Bill said, stopping Gwen's three-step mantra in its tracks. "Well, it's a pure cinch that you can't represent Destiny, and it's also pretty clear that the firm can't either."
"I was afraid of that," Gwen said, looking up at Bill. "Conflict of interest?"
"You got it. You see, Gwen, your obligation as Destiny's attorney would be to protect her rights as a potential suspect in a felony, possibly a capital felony. But,” Bill went on, "as a potential suspect yourself, your best defense would be that someone else did it. That 'someone else' could well be Destiny, and if she is your client, that is a conflict. As her attorney, you would have to talk to her. Anything she said to you as her attorney would be privileged, and she could assert it, but anything you said to her would not be privileged. So it's possible you could incriminate yourself. If that's not enough," Bill continued, "Texas Disciplinary Rule 3.08(b) prohibits you from representing a client in a matter in which you might be a witness adverse to your client."
Gwen wondered what she would tell Destiny when she arrived. Gwen let Bill know that she had discussed the situation with Jack Easter, and that he would be representing her, should it come to that. Bill and Gwen were satisfied that neither Gwen nor the firm could represent Destiny. They began discussing the conference call during which Gwen was apparently acting as Destiny's attorney, when a call came from the receptionist that Destiny had arrived. Tyler Toozer was also in the waiting room.
Bill and Gwen went into the conference room with Destiny. Detective Tyler Toozer was still in the waiting room. He had explained to Bill and Gwen that their "client" had asked him to meet her at her attorney's office, and she would answer any questions he might have.
"Destiny, it's good to see you again," Gwen began.
"Bill! Gwen! I can't tell you how relieved I am that you are here for me." Destiny smiled at them and then lowered her eyes saying, "This is just so unbelievable. I told the officer on the phone that I really didn't know anything about this horrible incident, but he insisted that I could provide him with background information that might help his investigation."
Bill interrupted Destiny before she could say any more. "I'm really sorry to have to tell you this, but neither Gwen nor I can represent you in your dealings with the police or anything having to do with Plowden's death."
"Nonsense," Destiny said. “Why Gwen has already proved to be invaluable in our conference call with the State Bar. She made sure that the officer didn't get out of line, if you know what I mean. Destiny smiled at them again and said, "Now that's the kind of representation I need now."
"Destiny, listen to Bill! That detective out there thinks I had something to do with this because of the grievance Plowden filed against me. That means I can't represent you."
"What on earth are you talking about, Gwen? What grievance? Are you saying that someone suspects you of killing Plowden? Why would anyone think such a thing? Bill? Tell me what this is all about." She went on, turning to Gwen. "Gwendolyn Gewurtz . . . or what ever your name is, did you do something to my Plowden?"
Destiny was filling the room with a tension that both Bill and Gwen could no longer tolerate. Destiny’s last comment convinced Gwen that something was very wrong. Finally, Bill told Destiny that he had no choice, that ethically he had to sever any and all attorney-client relationship with her, and he strongly suggested that she talk to a lawyer before meeting with the detective. He handed her a letter which clearly stated that neither Bill, Gwen, nor the firm would be representing her.
Destiny stood up and looked at the two lawyers seated at the far end of the conference table. "I'll tell you what I think, Mr. Wisdom. I think I'm going to talk to Mr. Toozer or whoever he is, and after I do so, we'll just see who needs a lawyer." Destiny turned to the door, went through the waiting room, and without stopping, went past the detective giving him a wave over her shoulder and saying, “Let's go, Toozer . . . we've got business!"
The meeting with Destiny did not go well at all. Gwen and her boss, Bill Wisdom, were both shocked when she left the office in the company of Detective Tyler Toozer. Despite the fact that Gwen had encouraged Destiny to hire a lawyer before being interviewed by the police, she seemed determined to meet with Toozer on her own terms.
Bill and Gwen discussed the possible results of Destiny's meeting with the detective. On the plus side, Destiny was out of the state when Plowden Torme was killed. On the negative side, the focus would probably shift to Gwen. Bill suggested that Gwen meet with Jack Easter. It was clear to Gwen that she would need a game plan on several different fronts. The potential for criminal charges was growing daily. There was still the matter of the grievance filed against her. To make matters worse, there was the possibility of a lawsuit against her by Plowden's estate and family.
Before Gwen could leave the office for her meeting with Jack Easter, the receptionist called and told her that Tyler Toozer was back in the waiting room and wanted to speak with Gwen.
"Hello again, Detective. You're becoming something of a regular in our office," Gwen said as she entered the waiting room. "I am sure Destiny told you," Gwen continued, "that I am no longer Ms. Torme's attorney."
Tyler stood up, folded his arms, and said, "That's right, she did, and she wasn't very pleasant about it either. . . although now she understands that there is no way you could represent her and wouldn't want you as her lawyer even if there were a way."
Gwen showed the detective to the conference room as she said, "My boss and I tried to explain that to her, but she didn't seem to get it."
"Oh, she got it just fine," Toozer said. "In fact, she thinks you had something to do with Plowden's death, and that's why I'm here."
Gwen was stunned. For the first time since this whole mess had started, she was really frightened. "Why are you here?" Gwen asked, not understanding what he was suggesting, if anything.
"Well, let me think about that," Tyler said as he stared at the ceiling in mock concentration. "You're a young lawyer with your life invested in getting where you are today." Tyler lowered his gaze to Gwen. "You have a nut case who filed a really dumb grievance against you. . . ," Toozer said holding up his index finger, ". . . not once, but twice and, glory be, who would ever guess that the guy would win? Now comes the good part - nut case turns up dead right on the heels of an appeal of the grievance to the State Bar Board of Disciplinary Appeals." He seemed to be really enjoying this. "Why I am here," the detective continued, "doesn't take a law degree to figure out. Gwen, I'd like to ask you a few questions." He reached into his pocket, pulled out a business card, and tossed it to Gwen. As it slid across the conference table, she could see that it was a Miranda warning. "Do I need to read that to you, Counselor?"
Toozer's tone was really beginning to "bug" Gwen. Fear turned to anger, but although she wanted to engage this creep with his snide remarks and innuendo, she knew better. As she stood up to leave she said, "My attorney is Jack Easter, and I'll let him tell you what you need to do."
First thing the next morning, Gwen was in Jack Easter's office briefing him on what had occurred the previous day. Gwen wanted to know, first and foremost, what effect the investigation would have on her ability to practice law. Gwen was familiar with some of the actions that could be taken by the State Bar, but when it came to crimes, she was confused. Gwen was reading the rules and procedures and asked Jack, "Isn't there a section in here that says you're disbarred if you commit a crime?"
"Well, yes and no, Gwen. Section 8.04(2) of the Disciplinary Rules makes it professional misconduct for a lawyer to commit a serious crime or a criminal act that reflects adversely on the lawyer's honesty or fitness."
"So is murder a serious crime, or is it one that reflects adversely?"
Jack smiled. "Well, I guess it's both, Gwen. The rules of disciplinary procedure define 'serious crime' as, among other things, any felony involving moral turpitude."
"I'm pretty sure this fits that definition, Jack, but what's the difference between being disbarred for 8.04(2) and being disbarred under any other section of the rules?"
Jack explained to Gwen that the Rules of Disciplinary Procedure provide for Compulsory Discipline. When an attorney is convicted of an intentional crime, which includes serious crimes requiring knowledge or intent as an essential element, the attorney is disbarred unless suspended during a period of probation. Jack stressed the point that there needs to be a final conviction. Just being investigated or charged would not support compulsory discipline.
"So at this point, Jack, I can't be I disbarred for being a suspect alI though, if I am convicted, it would be mandatory?"
"That's about the size of it, Gwen." Jack continued, "I think the big threat to your license at this point will be from an Interim Suspension, or possibly a Disability Suspension."
"What do they mcan by 'disability,' Jack?" This was news to Gwen. Somebody might actually think she was disabled?
Jack went over PART XII of the Rules of Disciplinary Procedure and explained that if an investigatory panel of a Committee certifies the finding of a disability to the Board of Disciplinary Appeals, the Board will assign it to a District Disability Committee. If there is a finding of disability, the attorney will be suspended indefinitely.
"Gwen, disability can include physical problems that can interfere with the attorney's ability to practice law, but it also includes mental and emotional conditions." Jack looked at Gwen and said, "You are under a lot of stress right now, and it is not interfering with your practice, but that doesn't mean that it won't or couldn't. Gwen," Jack continued, "you are a suspect in a murder case. Better people than you experience disabling depression over considerably less. Perhaps, when we meet again, we should talk about how you are handling this."
Gwen looked up from the books and smiled at Jack. "I know you're worried about me, but I'm fine." Gwen reclined back in her chair and said, "Jack, really, I'm at my best when there's a crisis. I know I can handle it.
With everything that had happened in the last few months, the staff at Bill Wisdom's office was amazed at Gwen's composure. She had weathered grievance complaints, rehearings, appeals, and evidentiary hearings resulting in findings of misconduct. Now she was a suspect in the murder of Plowden Torme. Some of the staff, including Bill Wisdom, were actually a little uncomfortable with how calmly she went about the day-to-day business of the firm. Anyone else would have been out of the office on stress leave.
Although there had been no charges filed against Gwen, Bill felt it was best for the firm and Gwen that her duties be limited to office work and research. Bill had no doubts about Gwen's ability to represent the firm's clients. His concern was based on the clients’ perception of being assigned to Gwen, should the investigation and suspicion become public or, at worst, result in charges against Gwen.
It had been a month since Gwen's last meeting with Detective Tyler Toozer. He came to see her after meeting with Gwen's former client, Destiny Torme. Destiny was Plowden's wife, and Gwen had represented her in her divorce action against Plowden. Destiny met with Toozer after being advised that Gwen could no longer represent her, and that she should get another attorney before meeting with the police. In spite of the advice given by Bill Wisdom and Gwen, Destiny left their office in the company of Detective Toozer.
Since then, Gwen had met with her attorney, Jack Easter. He had been in contact with the police and advised them that Gwen was his client. The dust seemed to be settling, and Gwen was ready to get back to her real job as a litigator. Gwen went into Bill's office and said, “Got a minute Bill?”
“Sure!” Bill responded. “Grab a cup of coffee, and come on in.”
“Well, it looks like Toozer is off of my trail,” Gwen said as she sat in front of Bill's desk. “It's been almost a month since he was here.” Gwen continued, “And I haven't heard a word one from Jack Easter.” Gwen's voice dropped a notch or two and she said, “Bill I'd really like to get back to work. This research is all well and fine, and I understand why you have me under wraps, but I really am fine, and I want to get back to my cases.”
Bill understood where she was coming from and said, “Gwen, I know what you mean, and I sympathize with you, but I have a firm to run, and right now, my responsibilities as senior partner and as your supervisor are subject to the same rules you were sanctioned under. I have an obligation under the disciplinary rules to protect our clients from any situation within the firm that could affect their representation.”
Gwen nodded her head and said, “So it's like master and servant. If I do something wrong, you are responsible because you are my employer?”
“Not exactly,” Bill said reaching for a copy of the State Bar Rules. “A lawyer is not vicariously subject to discipline for the conduct of another lawyer. But a supervisor of a lawyer or a partner in a firm can be subject to discipline if a lawyer they supervise is allowed to commit a violation of the rules, and the supervisor knows the rules will be violated.”
Gwen said, “Bill, I don't understand. Are you telling me that you think I would violate the disciplinary rules if I represented a client in a trial? Why would you think such a thing? All this time I thought you were convinced that I didn't do anything that was a violation of the rules.” Gwen was obviously upset. She leaned forward in her chair and said, “Bill, if you think I'm unethical, why don't you just get rid of me right now?”
“Calm down, Gwen,” Bill said. “If I thought that you were unethical, you wouldn't be here having this conversation. Gwen, you are a smart, capable lawyer. Of this I have no doubt. I also have no doubt that what you have been subjected to the past two years is more than most lawyers experience in an entire career.” Bill opened the disciplinary rules and turned to Section V, Rule 5.01, “With that said, you can't forget that I, too, am a lawyer and must follow the rules, regardless of what I may think about you personally.”
Gwen sat back in her chair waiting for the “but” to kick in.
Bill pointed to the rules and said, “Gwen, I don't need these rules to understand what I must do. It is a simple question of morality. I cannot expose my firm’s clients to a lawyer who has personal and professional issues that could make her ineffective. You may disagree with me, but it's my responsibility, and I don't need your approval.”
Bill knew that he probably sounded harsh to Gwen, and he regretted hurting her feelings. There was no escaping the reality that Gwen's ability and competence as a lawyer could be adversely affected by what she was having to deal with personally and professionally. He could not ethically entrust a matter to her, knowing that she was the subject of a murder investigation; that she still had an unresolved grievance and could possibly have a second grievance filed.
Bill read Rule 5.01 out loud to Gwen, stressing the obligation to “take reasonable remedial action to avoid . . . “a violation of the rules.
Gwen looked up from the rule book and said, “So I am condemned to the library because all of this stuff that's being done to me could interfere with the representation of a client?”
Bill looked at Gwen and said, “Gwen, you’re not being punished for anything.” Bill then said, “Look at it this way, Gwen. Would you refer a client to an attorney if you knew she had your issues to deal with?” Bill threw up his hand and stopped Gwen before she could answer. “Give me your ‘Gwen the lawyer’ answer. It's not so easy, is it, Gwen? It's a tough unfair question because you don't know the attorney's capabilities. You have to make the call.”
Gwen took a breath and said, “Bill, I wouldn't hesitate to refer the client to me, but I don't know about another lawyer. I see what you mean, though, and I respect your position. Is there any chance you might take me to a deposition every now and then? I promise to be good,” Gwen assured Bill.
Bill smiled at Gwen and said, “That's better. Let's see what the next month or so looks like. Maybe, with a little luck for a change, some of these issues will be resolved.”
Gwendolyn was sitting in her office bemoaning the fact that she was relegated to the library, condemned to do research. Her first grievance, filed by the deceased, Plowden Torme, had been dismissed. This was certainly good news, albeit anti-climactic, considering that she was now the number one suspect in his death. She was fairly sure her former client, Destiny Torme, would be filing a grievance against her, and Plowden’s estate would probably sue her for wrongful death.
Gwen’s boss, Bill Wisdom, was considerate in allowing her to continue working in his firm. Because of his ethical obligations as an employer and as a supervisor, however, Gwen could not have client contact until she was able to devote her full attention and energy to representing her clients. She caught herself focusing on her problems instead of the case on her computer screen, when the ring of her phone brought her back to the business at hand and reinforced what Bill had told her weeks ago. “Hi, this is Gwen,” she said into the speakerphone.
“Gwen, this is Bill. I need to meet with you this morning on an ethical issue that recently came up. I’m on my way in and will see you shortly.”
“Okay, Bill,” Gwen continued, “I checked my calendar, and I’m free this morning.” Gwen and Bill laughed as the phones clicked off.
An hour later, Bill and Gwen were in the conference room. Bill was explaining to Gwen that his new client had a serious problem. Bill was representing a lawyer who had a grievance with a pending evidentiary hearing. He had represented himself in the investigator hearing and was found to have committed misconduct. The panel suspended him for six months. The evidentiary hearing was already scheduled and was coming up in two weeks. Bill was meeting with the lawyer in a few hours and wanted to run the case by Gwen. He knew that, in the past year, Gwen and her attorney, Jack Easter, had looked at almost every rule and case in the disciplinary rules, and that she was up to date on current procedure.
“Here are the facts, Gwen.” Bill was referring to a letter he had received from his client. “Several years ago, three teenagers were injured in a pickup truck accident on a hunting lease in the southern part of the state. They were all licensed to drive and had all taken turns driving the truck. The truck was owned by one of the boys and was insured in his name. The other two young men were not related to the owner of the truck.”
Bill looked up and saw that Gwen was writing furiously. He waited for her to pause and then continued. “Very early in the morning the three boys were on their way to the blinds to hunt. No one saw them leave. They were not heard from that morning, and by noon, the other hunters were looking for them. They found the pickup truck overturned. All three of the boys were out of the truck, on the ground and unconscious. It was apparent that they had all suffered serious head injuries. They were airlifted to a regional hospital. All of the boys tested positive for drugs, and all of them had damages in excess of the single-person limit of the insurance policy on the truck.”
“All right,” Gwen said. “I think I have it.” She looked up from her notes and asked, “So what did the attorney do?”
“The long and short of it is conflict of interest,” said Bill. “It seems,” Bill turned to the next page of the letter, “that our client represented all three of the injured boys in a claim against the insurance company that had the policy.”
“So what’s wrong with that?” asked Gwen. “The driver was clearly liable because of the drugs, so each of the passengers would be entitled to the $25,000 per person limit.” Gwen handed back to Bill the insurance policy that had been enclosed with the letter and continued, “And the driver is entitled to recover Personal Injury Protection benefits because that’s ‘no fault’ coverage.”
“Well,” said Bill, “here’s the catch. None of the boys has any memory of that morning, nor of the accident.”
“Why does that make a difference?” Gwen asked. “The insurance company is paying out maximum benefits, so . . . .” Gwen suddenly stopped herself and looked at Bill. She hit the nail right on the head when she said, “Any one of them could have been the driver.” She went on, “And the claims for the other two would change, depending upon which one was driving.”
“That’s it, Gwen.” Bill leaned back in his chair and sketched a diagram on his legal pad. “It’s classic, Gwen!” Bill showed her the diagram. “If we call the boys ‘A,’ ‘B,’ and ‘C,’ then ‘B’ and ‘C’ would have a claim against ‘A’ if he were the driver, ‘A’ and ‘C’ versus ‘B,’ and so on.” Bill dropped the tablet on the table and looked at Gwen. “What a mess,” he said.
Gwen looked up from her paperwork and said, “According to our client, he recovered PIP coverage for each of them, and then the insurance company paid him $50,000 for a release of the insured on the policy. Apparently, he divided the money after fees among his three clients and that was it.”
“Right” said Bill. “The young man on the policy was released by the other two, but neither of them was released by anyone. Now, they are all suing each other, and there is no insurance money left. Also, all three of them have filed grievances against our client based on a conflict of interest. They say they were not advised that they had causes of action against each other, and that they could only take the insurance money.”
“This is really wild,” said Gwen. “Each one of them should have had his own attorney.”
“Correct,” said Bill. “But there’s another dog in this fight. Each one of the boys would also be an insured under the truck policy, if he were the driver. The insurance company has denied a defense to any of them based on the payment of the policy limits. To make matters worse, our client has represented the insurance company in the past although he is not currently one of its lawyers.”
“Who is this guy?” Gwen asked as she reached for the cover letter to look at the letterhead. When she saw the name at the top of the letter, she almost passed out. She could not believe it.
As she looked up at Bill, the receptionist announced over the office intercom, “Mr. Wisdom, there is a Mr. Todd Pytoon here to see you. He says he has an appointment.”
Gwen was in her office, kneedeep in her latest grievance challenge. Fortunately, it was not against her! She was putting together a brief for Bill Wisdom. The case had come in last month and was a pretty. strange conflict issue involving an insurance settlement. Gwen's phone lit up, ringing on her direct line. She wondered who it could be at 7 a.m. -- the switchboard wouldn't open for another hour. "Hi, this is Gwen," she said.
"Good morning, Gwen." She recognized the man's voice immediately. She felt cold and noticed her hand was shaking. He continued, "This is Tyler Toozer, and I need to talk to you. Is now a good time?" Gwen was stunned and couldn't utter a sound. After several seconds Tyler said, "Gwen, are you there?"
"Yes I am, Detective. I'm just very surprised that you would be contacting me when you know I am represented by counsel." Gwen liked the way her response sounded, and then wondered in a panic if she had already said too much. She knew that, as a suspect in the death of Plowden Torme, anything she said to the senior detective would come back to haunt her.
"I understand how you feel, but I can assure you that I have no intention of repeating anything we discuss -- to anyone! Listen, Gwen," he continued, "I'm down in the lobby coffee shop. If you're here in five minutes, great. If not, I'll assume you want your lawyer with you, and frankly, if that's the way it is, then we really have nothing to discuss."
The phone clicked, and Tyler was gone. Gwen was totally mystified by this call, at this hour, from a guy who had accused her of murder! Now, he wants to have coffee with her? Gwen was tempted to call Jack Easter, but knew that Tyler Toozer would be gone by then, and it wouldn't make any difference.
She had heard nothing from Toozer or anyone else in the police department for months. There had been nothing in the media about the case. The last thing of any significance to occur was Toozer's visit with her in the conference room.
Curiosity claimed another victory. The elevator doors opened, and Gwen could see the coffee shop on the opposite side of the lobby. She heard a voice say, "Good Morning?" and realized there were two guys waiting to get on the elevator.
"Sorry," Gwen said as she stepped out of the elevator and walked toward the coffee shop. She could see Toozer sitting in the first booth by the door. He was alone and looked up at Gwen as she walked into the shop and came up to the booth.
"Gwen," he said, "I really appreciate what you are doing. I know it's tough, 'specially for a lawyer." Tyler waved at the waitress, indicating he was ready to order, as Gwen slid onto the bench opposite him.
"So what's up, Detective Toozer?" Gwen was expressionless as she looked at Toozer for some sign of what he was after.
"Well," he said as two cups of coffee were delivered to the table, "It's Tyler, just Tyler. Not Detective Toozer."
"I prefer to keep this formal," Gwen said.
Tyler sat back in the booth and said, "Then call me Mr. Toozer, because I am no longer on the police force." Tyler explained, "I'm presently unemployed, so please, Gwen, Tyler is just fine."
To say she was stunned would be a "Nice Nelly." Gwen was bowled over. "What could I possibly do for you, Tyler? Our only involvement was you investigating me for murder! For crying out loud!" Gwen said through her teeth.
Tyler was ready for heat of some kind from Gwen. It would have bothered him more if she weren't angry. He thought about saying something like it was his job, no hard feelings, but that would have been ludicrous in the context of what he needed to say. "Gwen, I think Destiny Torme is part of a ring of con artists that have been working in this state for the past ten years or so. You have the pleasure of having coffee with her latest mark, and I didn't see it coming and still don't believe it happened."
Tyler was shaking his head in disbelief as he explained to Gwen that during his investigation he found evidence that Destiny had been in the city on the day Plowden was shot. He also discovered that Plowden and Destiny were in business together. They sold stocks and bonds to investors, mostly senior citizens, through clubs that they would set up using different names and organizations. Tyler told Gwen that her client's real name was not Destiny Torme. The happy couple was really Bethesda and Ford Chase.
"The whole divorce thing you were involved in was to avoid some kind of a tax snafu they had gotten into," Tyler said. "Now here's the tough part. All of these theories are unsupported by any evidence I could use legally, and now, I've been set up by Destiny/Bethesda for taking a bribe, which, Gwen," Tyler stressed, "I did not take!"
"Hey, Tyler," Gwen said, "this is all way over my head! What do you want from me?"
Tyler's look communicated fear, which made Gwen very nervous. Then he said, "Gwen, if we don't work together, we are both going down for the count."
"But what can I do?" Gwen said more as a statement than a question.
"You have information that I need," Tyler said.
"I can't give you anything. It would cost me my license. Everything I know about Destiny, or whoever, is privileged and confidential."
"I thought about that," Tyler explained, "but here's the question you need to answer: your client is Destiny Torme, and that is an alias created for criminal purposes. And," Tyler continued, "you were hired for a divorce proceeding for a marriage that did not exist, solely for the purposes of tax fraud! Is there really an attorney/client relationship?" Tyler hoped that Gwen could accept the fact that she had been used in a criminal scheme. The whole divorce, trial, and grievance were part of a scam, and Gwen had been led right down the primrose path.
"That's a convincing theory, Tyler, but if she wasn't really my client, then most of the information would be false anyway!" Gwen felt like she was between a rock and a hard place.
"That's not quite right, Gwen. You have time records and notes that will show when she was here, and phone numbers and long distance records that will give us other locations. For example, all the time she was out of town because she was supposedly afraid of Plowden, she was really setting up an investment club right here under a different name. I think that some of these companies may be clients of your firm."
Gwen was beginning to suspect Tyler of some brinkmanship. She wanted him to give her his information, but he refused. She promised him she would research the issue and try to determine if she did, in fact, have an attorney/client relationship with Destiny/Bethesda.
They agreed to meet again. Gwen went back to her office, wondering if everything that she had been through in the past year and a half was just a game by a con artist.
Gwen was having a hard time believing anything Tyler Toozer had to say, but this conspiracy theory that Destiny Torme was really someone named "Bethesda Chase" was totally incredible. Gwen wasn't sure what she would do next, but she knew she had to speak to her attorney, Jack Easter. Later the same day, Gwen was in Jack's office explaining her conversation with Tyler to Jack. He was furious with her and kept shaking his head, admonishing her for talking to Toozer in the first place.
"I don't understand what's wrong with you, Gwen!" Jack looked at her over the top of his reading glasses. He didn't expect a response, but when Gwen started to defend her actions, he stopped her cold. "I don't want to hear any more about what you've done. Now, we need to be talking about what we're going to do about it." Jack took a book down from the shelf in his office and sat in the chair next to Gwen in front of his desk.
"This is not the reaction I expected, Jack," Gwen said, looking up at him.
"I'm sorry if I upset you," Jack said as he turned the pages of his book, "but the last thing I would have worried about was my client -- the #1 suspect in a murder case, who also happens to be a lawyer -- having coffee with the investigating officer. Listen, Gwen, I'm your attorney. I have given you a specific set of instructions that I expected you, of all people, to follow to the letter. Those instructions still stand. Just because `all is quiet on the front' doesn't mean you are out of the woods." Jack's voice softened, "Nobody has been caught or charged with this crime, and even if Toozer is no longer a peace officer, anything you say to him can be used against you."
"Okay, what do we do now?" Gwen asked as she sat back in the chair, folding her arms, wondering how she could be so gullible and who was conning whom. "What if Destiny Tonne is an alias, and the whole divorce was a scheme to avoid the IRS? Work with me on this, Jack." Gwen was on her feet now, pacing the patterns on the carpet. Jack called this her "war dance." "Just suppose Toozer is right, and Destiny and Plowden were involved in a crime, and nothing I did for them as an attorney was legitimate. Wouldn't that do away with any privilege?"
"Gwen, this is a really complicated area of attorney-client privilege. First of all, invocation of the attorney-client privilege is dependent upon the existence of an attorney-client relationship. And whether an attorney-client relationship exists depends on the facts of each case. It can be created expressly by contract, or it may be implied from the actions of the attorney and his client. You really need to look at what the parties did and said, and not at what you think their subjective states of mind were at the time the relationship was formed." Jack was referring to notes he had made in the margin of the book.
"What's that?" Gwen asked.
Jack looked up and said, "I had a case a couple of years ago that dealt with a similar issue, although nothing like your situation. There is an exception to the attorney-client privilege called the crime-fraud exception. Your attorney-client conversations are not confidential if they involve a continuing or future crime, and the attorney's services were sought to aid in the commission of the crime. We actually appealed the case and got a favorable decision. The case was going up to the next appellate level, but it settled."
Jack told Gwen that the case involved a client's telephone conversations with her company's attorney. The attorney had recorded the conversations, and during them, the attorney had fabricated stories to encourage the client to talk about trade secrets, in hopes of setting her up for theft of intellectual property. The client asked if the conversations were protected by the attorney-client privilege, and the attorney said they were. The court later held that the crime-fraud exception to the attorney-client privilege wasn't applicable.
"But let's not get the cart before the horse, Gwen." Jack then said, "Whether you have a confidentiality problem is secondary. We first have to decide if you are going to play ball with Mr. Toozer. Frankly, all you have at this point is speculation." Jack pointed out that Plowden Torme filed a grievance against her. "Why would he do that if the divorce action was just part of a scheme? Why would he carry it to the extremes he did? Wasn't Destiny a client of Bill Wisdom's before the divorce action? How come there has been nothing in the news about the bribe, the discharge, or the ring of con artists ripping off senior citizens?"
"I understand all of that," Gwen said, "but I'm the one having to live with this everyday, and I guess I'm looking for an end to it. You're right. I don't have a clue what Toozer is up to, but I would sure like to know."
Jack knew what Gwen was going through and resolved to get to the bottom of it. It was time to contact his investigator. Jack used the exclusive services of none other than Tidy Bohles. If anyone could get inside on this one, she could.
Thaidra “Tidy” Bohles had been Jack Easter’s investigator for the past thirteen years. To say she was “The Best” was an understatement. With her inside connections, she could flush out a witness and cleanup a case better and quicker than anyone Jack knew. Tidy was the youngest daughter of a British Diplomat stationed in one of the Pacific Rim countries. She was educated at Oxford, with advanced degrees in mathematics, logic, and computer sciences. Since Jack had known her, she had resided at the Bay Shore Marina on a blue, converted trawler called the Blue Norther. Tidy was 4’11,’ weighed an amazing 85 pounds and was blond to the point of saturation. Gwen and Jack were waiting for her as she entered the conference room.
“Hello, Jack, it’s so good to see you again!” Tidy turned her glance to Gwen and extended her small, pale hand and said, “Gwen, so very nice to meet you. Please call me Tidy. I’m sure Jack has mentioned that my clients and friends do so.”
Gwen took her hand and was stunned by her strength. “Thank you, Tidy. I’m happy to meet you, as well.”
“Tidy, how are your folks?” Jack asked.
“Just fine, Jack. Thank you so much for asking. Dad does send his warmest regards and wanted you to know that all is well at BMIC.”
Jack got to the point of the meeting, generally describing recent events and then said, “Tidy, we need to know if Tyler Toozer is playing us or is in a jam and needs our help. We also need to know who Destiny Torme is and what she is up to.”
“Well, Jack, I must tell you that I am certainly concerned that there has been a death associated with these shenanigans. Someone is apparently quite serious about their toys. Don’t you agree, Gwen?”
Gwen was caught off-guard by the question. Listening to Tidy speak was almost hypnotic. Her accent was English, but Gwen detected French as well. Tidy’s voice was a bit deeper than one would expect from a person her size, and almost “musical.” Tidy seemed to be in complete control of the pitch of her voice, varying from one note to another only when context dictated. “Yes,” Gwen said as though snapping out of a trance, “I am pretty sure whoever took out Plowden meant it.”
Tidy chuckled at Gwen’s attempt at sarcasm and said, “The vernacular so often evades me. It is a treacherous fault of mine. Gwen, if I am hearing you say there is a possibility that the death of Plowden was not intended, would I be correct?” Tidy, waiting for an answer to her question, studied Gwen. She sensed there were walls going up, rather quickly, with no foundation of which to speak.
Gwen was carefully measuring this last question that Tidy had so “tidily” put to her. Gwen snickered to herself, being careful not to let her private humor escape into the conversation. She was present enough to realize that any answer could be disastrous, at least as far as Tidy’s view of her. She realized full well that Tidy’s investigation would include her. Gwen was half smiling and quite serious when she said, “Tidy, I prefer not to speculate on what, if anything, you may be hearing. I do, however, expect you to live up to Jack’s belief in you and, with all due haste, extricate my butt from the sling in which it seems to be stuck.”
“I like her, Jack,” Tidy said. “If I am ‘hearing’ her correctly, Gwen just said ‘Don’t pull my chain,’ cause you’re not gonna like what’s at the end of it!”
Gwen cringed at Tidy’s obvious impression of her.
Tidy then said, “Very smart lady, Jack. Certainly smart enough not to have coffee and chit chat with the officer accusing her of homicide.” Tidy turned her entire body to the right, facing Gwen corner-to-corner. The leather chair in front of Jack’s desk looked huge with Tidy perched squarely in the center and offered no resistance to her movement towards Gwen. She then said, “So why did you have this tête-à-tête with the ever-so-scary Tyler Toozer, Gwen?”
Gwen smiled at Tidy and asked, “I take it you have met Tyler?”
“Our paths have crossed a time or two,” said Tidy. “He was the criminal investigator on an insurance fraud case I handled for Neutral of Omagawd. I found him to be borderline ineffective with delusions of adequacy.” Tidy continued, “So if he is in trouble, as he says, it wouldn’t surprise me.” Tidy stood up and with crossed arms began pacing about the room. Jack did not miss this similarity between Tidy and Gwen. Tidy seemed to be thinking out loud when she said, “I don’t understand how he could be taken in by Destiny Torme. She was, after all, a suspect, yes?” Tidy asked as she turned to face Jack and Gwen.
Gwen responded, “Destiny is, was, an old client of Bill Wisdom. He had been representing her for a number of years when I joined his firm. After I had been there for about a year, Bill let me handle Destiny’s divorce. We did just fine in trial, but afterwards there was some trouble with Plowden involving a grievance against me. Destiny had moved away, claiming she was afraid of Plowden. He was killed several months ago, and Toozer started his investigation. Now, Toozer is telling me this is all a set up, and he is no longer on the police force.”
Tidy nodded and asked, “What kind of work did Mr. Wisdom do for Destiny?”
“I don’t really know,” said Gwen, “and even if I did, I don’t think I could tell you because it is privileged.”
Jack added, “We have something of a Gordian knot, Tidy. All of Gwen’s communications with Destiny, and Bill’s for that matter, are privileged. Bill doesn’t know about Gwen’s meeting with Toozer and his claims that Destiny was involved in an investment scam. What we really need at this point is whatever background information you can dig up on the two of them. Also you might look into the names Gwen was given by Toozer -- Bethesda and Ford Chase.”
With her marching orders in hand, Tidy said good-bye and left. Gwen assured Jack that she would call him if there were any new developments and went back to her office. It was already after six in the evening, and Gwen was not surprised that the office was locked. As she slipped her key into the door lock, it seemed to stick when she first tried to turn it. She took it out and tried several more times before it dawned on her that the lock had been changed. She was dumbfounded. Bill had said nothing to her about changing the locks. She checked her cell phone for messages, and there were none. She then called the office number, and when she tried to access her voice mail, her code was not recognized. As she was putting her phone back in her purse, she heard someone behind her and turned around. A uniformed policeman looked at her and said, “Are you Gwendolyn Gewürztraminer?”
“Yes,” Gwen said weakly.
Without another word, the police officer handed her a piece of paper and left.
Gwen had been subpoenaed to appear before the grand jury.
The next day, Gwen went to Bill Wisdom’s Spanish-styled mansion, situated in a posh part of town on the corner of Don Prado and Capoleone. Gwen stopped at the gate. When there was no answer on the intercom, she entered the code on the keypad. As the gate slid across the cobblestone drive, she was surprised that the code Bill had given her nearly a year earlier still worked. She drove to the front of the house. There were no other cars in the driveway. She couldn’t see any lights on in the house, and there was no activity whatsoever on the premises. The place was for all practical purposes deserted.
Gwen flipped open her cell phone and called Bill’s home number. It rang three times, and then she heard a recorded “no service” message. She re-dialed, to make sure she had used the right number, and as she listened to the first ring, she heard a truck coming up the drive from the gate. The truck pulled to the side of the house, and the driver got out and walked toward her.
“Who are you?” the driver demanded.
Gwen could see that the man was a security guard and wondered if she had set off an alarm coming through the gate. “I’m Gwendolyn Gewurtstraminer. I work with Mr. Wisdom. I’m a lawyer in his office.”
“Oh, well okay,” he said, “I’ll be out of here in just a minute or two. Sorry to bother you.”
“Was there an alarm?” “Heck, lady, I don’t know and don’t much care. I’m here to disconnect the service and pick up our monitors. This account was closed about a week ago.”
Gwen was fidgeting when she asked, “Mr. Wisdom still lives here, doesn’t he?”
The man snorted a kindly laugh and said, “No one has lived in this house for about four months. We used to complain like the devil to our supervisor ’cause every time a bat would fly through a detector, we had to dispatch a unit for nothing. Can you believe it -- for nothing!”
Gwen got into her car and left. On her way back to the office, she called the State Bar and asked for Bill’s home and office addresses. They were still the same, as far as the Bar knew. She tried, with no luck, to get in touch with her lawyer, Jack Easter. Finally, she caught Tidy Bohles at her office and explained everything that had occurred since the time Gwen had returned to her office the evening before.
As Gwen arrived at the office building where she had worked for the past two and a half years, Tidy was just saying, “. . . and, Gwen, when you get to the office, go directly to building management and see what you can learn from them.”
Gwen went to the front door of the Bill Wisdom Law Offices and tried her key once again. It was useless, she thought. The locks had definitely been changed while she was out of the office. She walked into the management office and smiled at the receptionist. “Hi, Pita. I need your help. Believe it or not, I can’t get into my office!”
“Good morning, Gwen,” Pita smiled. “You bes’ be talkin’ to Benny,” she said, as though she wanted nothing to do with this problem. She called Benny, the building manager, to the front and then went into the coffee room.
Benny came into the waiting room and explained to Gwen why her key no longer worked. “You can’t get in there until somebody pays up all the back rent.” He shoved his big hands into his pockets and rocked on his heels as he continued, “$20,000 and change.” Gwen could tell that Benny was proud of this number. He then said, “I have a lien on everything in that office, and nothing can be removed until we are paid in full.” Benny put exaggerated emphasis on “paid in full,” enjoying immensely one-upping a lawyer.
Tidy had just entered the office as Benny was in mid-rock, and he nearly tipped over when he saw her. “Come on, Gwen,” she said. “Let’s go.”
“$20,000!” Benny repeated as they walked out of his office. He followed them into the hallway and shouted, “And then you’ll have three days to move out.”
Tidy was no stranger to what was going on. She had assisted attorneys appointed by the court to act as custodians of abandoned law practices. She drove Gwen to the field office of the State Bar. "
Marcus Carsum was the local Disciplinary Counsel for the State Bar. Gwen and Tidy were in luck. He was between hearings and had time to visit with them. Gwen explained everything to him in precise detail. He agreed that it looked like Bill Wisdom had disappeared. He then expressed concern over the status of trust accounts. He was of the opinion that those should be audited immediately.
“So what happens now?” Gwen asked.
Marcus explained that the Disciplinary Rules of Procedure had a specific procedure that applied in cases where an attorney has died; resigned; become inactive; been disbarred or suspended; become physically, mentally, or emotionally disabled; or has disappeared and can no longer provide legal services to protect the interests of the clients. Technically, all of the clients of the office were Bill Wisdom’s, and Gwen was an employee with no right of ownership. In fact, she was not even mentioned in the attorney/ client engagements and contracts.
Marcus said, “You see, Gwen, under the rules, a client, the Chief Disciplinary Counsel, or any interested person, can petition the District Court to assume jurisdiction over Bill’s practice. None of Bill’s clients, except for maybe Destiny Torme, have consented to your becoming their attorney, so the court will have to appoint a lawyer to assume responsibility.
Gwen asked, “What will this attorney be able to do?”
“Well, it’s not really that complicated when you talk about it,” Marcus said, “but the job can be daunting.” He went on. “Of course, the attorney will have to examine all of the client files. Then, he will send out notices to the clients that the practice has been assumed by the court and suggest that they may want other legal counsel. As far as anything that may be time-sensitive, he will have to apply for extensions or, with client consent, file motions and pleadings. He also has to serve notice on anyone, other than the client, that may be affected, and arrange for the surrender of all papers and files to the client.”
“My goodness!” Gwen sighed. “It sounds like I’m out of a job.”
“Well, you still have your license,” Marcus said, “and that has got to be worth something to you. You have done the right thing by coming to me. Right now, I have to get my staff working on access to the trust accounts. I would appreciate it if you would make yourself available in the event we have questions. Will you do that, Gwen?”
Gwen agreed that she would. At this point, she had time to kill and no clue what she would do next. Her first concern was Bill Wisdom’s whereabouts -- not to mention the grand jury subpoena she had been served last night. That was turning out to be a laugh since it was for files from the office.
Tidy said, “Gwen, I could use a little help. Are you up for it?”
“You bet,” Gwen smacked her right fist into the palm of her left hand. Tidy smiled and wondered how the devil Gwen wound up in this story.
Marcus Carsum assembled a team of attorneys to take over Bill Wisdom’s practice. Motions were filed in the District Court, and an attorney was appointed by the court to act as trustee. In the meantime, Marcus discovered that the trust accounts for the firm were completely empty. In fact, according to the bank, all funds had been removed a month before the inquiry.
Marcus contacted Gwen to find out what money was owed to clients, but she was really no help at all. For the past year, she had had very little to do with actual client matters and had been doing research for Bill, as well as the occasional “go-fering” expected of young lawyers. She explained to Marcus that she was not a signatory on any of the firm accounts.
Gwen and Tidy had busied themselves during the past week tracking down the firm employees. They had little or no information about what had happened to Bill Wisdom. The staff said that they had been paid up to date and then given a two-week severance package, plus a stern reminder that all firm business was confidential. Gwen was reviewing docket listings at the District Clerk’s office when Tidy’s phone rang. Tidy answered the call.
“Good morning, this is Thaidra Bohles.”
“Hello, Ms. Bohles, my name is Toby Twereter, and I was appointed by the State Bar to take custody of Mr. Wisdom’s files. I was told I could contact Gwen Gewurtztraminer at this number.”
“That’s right -- just a moment,” Tidy said as she handed the phone to Gwen.
“Hi,” Gwen said. “What can I do for you?”
Toby Twereter explained to Gwen that he had managed to get into her former office in spite of the human barricade set up by the building manager, Benny. “He was really weird,” Toby said, “but what I found when we got the files over to our office was even weirder.” Toby described the files to Gwen. They were, for the most part, empty. There were expandable and manila folders in every one of the 300+ files, but with the exception of 20, they were empty or filled with blank paper.
Gwen was flabbergasted! “Can you tell me about the 20 files?”
Toby was hesitant, “Gee, Gwen I don’t know. You are not named in the files as an attorney of record. In fact,” Toby continued, “neither is Bill Wisdom. They seem to be case files from all over the country and involve civil trials. There doesn’t seem to be any connection at all with Wisdom, you, or even the files themselves. They’re like random unrelated files from twenty different states.” Toby sighed into the phone and said, “I just don’t get it, but I will suggest to the State Bar investigator that he review them with you.” Toby said good-bye and added, “Maybe something here will ring a bell, Gwen.”
After Tidy heard what Toby had told Gwen, she said, “My dear, I just can’t imagine what in the world you and Mr. Wisdom were up to!”
Gwen said, “Heck, Tidy, I went to work there every day for the past two years and this just blows my mind!” She went on, “I did research, contacted clients, and even tried that stupid Destiny Torme divorce case. And but for the fact that I have been in a nightmare ever since Ms. Torme -- or whatever her name is -- came into my life, I don’t have a clue what is going on.” Gwen continued, on the verge of hysteria, “Tidy, where is Bill, and why has he done this to me?”
The next day Gwen got another call from Toby. He said that Marcus Carsum wanted her and Tidy to both come in and take a look at something he found in one of the twenty files. Gwen agreed, but explained it would have to be later in the day. Tidy had done a title search on Bill Wisdom’s house, and they were on their way to see the owner, Molly Bluesinger, or “Scooter” as the rest of the family lovingly called her.
Molly was heiress to the famous Minnesota pork empire built by Archie Katz. Archie had passed away under suspicious circumstances about twenty-five years ago, leaving his entire estate to Molly. Part of the estate was the residence located at One Capoleone. Word on the street was that Archie won the mansion in a poker game shortly after the previous owner had disappeared in St. Paul.
Molly was now a permanent resident of Saint Lucrezia de Arsangiac retirement home. The home and the grounds were huge, reminiscent of the English estates that Tidy had frequented as a child. Saint Lucrezia was no less than 500 acres of gardens, a main residence, a hospital, and dwellings for the staff of 150 administrators, doctors, nurses, and attendants.
Gwen and Tidy were taken to one of the gardens, where they found Molly. She was in the company of two attendants that were covered from head to foot in white gowns. One of the attendants introduced herself, “I am Poote’ Baranga. If you need a translator for the Miss Molly, then I am at your service.”
Tidy said, “Thank you. I am conversant in most languages, but I am assuming Ms. Bluesinger speaks English -- yes?
Poote’ Baranga smiled warmly at Tidy and said, “The Miss Molly doesn’t speak anything, anymore. We communicate with her through aural interface. You speak the words to me, and I will truly and faithfully imbue her with them.”
When Gwen asked Poote’ Baranga how Molly communicated with the other residents of the home, Poote’ said, “There is only one resident at Saint Lucrezia. The Miss Molly resides at Saint Lucrezia. It exists for only the Miss Molly.”
Tidy said, “Poote’, what we need to know is who tends to Miss Molly’s real estate concerns?”
“Ah, that is easy,” said Poote’. “Mr. Wisdom was the attorney-in-fact until he died. Now, the banks oversee all concerns of the Miss Molly’s estate.”
Gwen and Tidy stared at each other. Tidy then said, “Bill Wisdom is dead?”
“Yes, indeed,” said Poote’. “The banks have been custodians of the Miss Molly’s concerns for the past ten years.”
Gwen asked Poote’ where Mr. Wisdom lived. “Not far from here. He lived in the main residence just beyond the garden where he was buried.”
Tidy took a deep breath. Folding her arms, she gazed at the ground and asked, “Pray tell, Poote’, what caused Mr. Wisdom’s death?”
Poote’ told Gwen and Tidy that poor Mr. Wisdom was killed in a car crash on his way to court. He was to testify in a matter involving Mr. Katz’s partners. It was shortly after his death that the Miss Molly dramatically changed her mode of communication.
After a most interesting afternoon with Scooter Bluesinger and her attendant, Poote’ Baranga, Tidy and Gwen were literally swimming with new information. As Tidy drove, Gwen was hard at work on her cell phone. She called Toby Twereter at Marcus Carsum’s office and told him they had reason to believe that Bill Wisdom, or at least an attorney by that name, had died about ten years ago. If this was true, then her employer of two years was obviously not the same person. And if not, then who was he, and how did he come to be the resident of One Capoleone?
Next, Gwen contacted the banker Poote’ said was managing finances for Molly. After the banker gave her the most recent information about the lessee, Gwen closed her phone and said, “Tidy, you are not going to believe this.”
As Tidy continued driving, she glanced at Gwen as though saying, “Try me!”
Gwen said, “According to the bank, the house at One Capoleone has been leased to Bill Wisdom, Attorney at Law, as Trustee of the Estate of Destiny Torme, for the past ten years.” Gwen then turned in her seat, straining against her seat belt and, raising her voice above the traffic said, “But here’s the kicker -- Mr. Wisdom terminated the lease effective the end of last month.”
Tidy had her hands on the steering wheel, firmly at 10:00 and 2:00, and was looking straight ahead with no expression whatsoever. She said very slowly, almost to herself, “And now the circle begins to close.”
“What do you mean?” asked Gwen.
Tidy smiled and said, “How much would you like to bet that your boss is really Ford Chase, and that Plowden Torme was an unfortunate flunkey that also worked for him?” Tidy then added hastily, “I’m not saying you’re a flunkey, Gwen.”
“Right,” Gwen said and then added, “Say! Where do you suppose Tyler Toozer is? He seems to have kicked this ant hill into life.”
Tidy gave Gwen a quick glance and said, “That is exactly right, Gwen. I suspect Tyler is looking for a job somewhere and will come to us before we need him. Tyler found out about Bethesda and Ford Chase, and when things got a little close for your boss, POOF! He’s gone.”
“I’ll be a son of a gun,” said Gwen. “That explains all the empty files back at my office, and a few other things I never understood about Bill’s practice.”
“Like what?” asked Tidy.
Gwen said, “Well, Tidy, it always struck me as a little peculiar that Bill had no bookkeeper or accounts that I could access.” And then she snapped her fingers and said, “Tidy, I think we need to track down Tyler.”
“Like right away,” said Tidy.
Gwen and Tidy met with Jack Easter and brought him up to date on the events of the last few weeks. To say he was amazed at what they had uncovered was putting it mildly. At Jack’s suggestion, Tidy and Gwen met with the State Bar attorneys who, in turn, requested that the Attorney General begin an investigation. The employer Gwen had known for two years as Bill Wisdom was nowhere to be found, and there really wasn’t much for Marcus or Tobey to do with the files. There seemed to be little question that the contents of the office belonged to building management as part of their lien. Marcus got an agreement from the manager, Benny, that any file materials that were clearly the work product of an attorney would be turned over to Gwen. She was, after all, the only apparent licensed attorney that had worked in the office.
Gwen and Tidy continued to office together. Several days later, Gwen was sitting on the deck of Tidy’s trawler, the Blue Norther, watching the sun disappear behind evening clouds. Tidy came up through the main hatch from below and handed Gwen a glass of wine and held her own glass in a toast.
“Mare Liberum,” Tidy said as she saluted Gwen with her glass.
“Thanks,” Gwen said. “They are out there somewhere,” she said as she pointed in the general direction of the ocean.
Gwen realized that she was probably the only person that had a connection with all of the players in a seemingly impossible mystery. She couldn’t be sure of anything having to do with any them. For nearly a year they had all, in one way or another, made her life a nightmare. And now she was, seemingly, the only one left standing. Plowden Torme, a/k/a Ford Chase, or perhaps someone with no identity, was dead. Bill Wisdom had died ten years earlier. Someone who assumed his identity was missing. Tyler Toozer was no where to be found. Gwen talked to “Bill’s” secretary and learned that Destiny Torme had been there the week before Bill disappeared. She had not been seen since.
Marcus Carsum with the State Bar turned out to be a big help. He assured her there would be no further action on anything that had been filed by Plowden Torme. She had also been informed that she was no longer a suspect in the murder of Plowden, but that it was an open case, and her assistance, from time to time, would be appreciated.
Tidy was lost in her own thoughts when she said with a start, “Oh, Gwen! I nearly forgot to tell you. Jack said you have a client who wants to see you.”
Gwen smiled. This was the best news she had heard all day.
At 8:30 a.m. on the button, Todd Pytoon stepped into Gwen’s office aboard the Blue Norther, British registry, of course. He was immediately impressed with her new office and stunned when he was introduced to Tidy Bohles. Gwen and Tidy welcomed him, offering him coffee and a seat.
“I’m sorry I had to go through Jack to find you,” said Todd. “I really had no idea where you might be, and as Jack may have told you, I really need your help.”
“Actually,” Gwen said, “I haven’t spoken to Jack.” Gwen smiled at Todd, ready to hear what he wanted from her.
Todd told Gwen that, several months ago, he had a problem with an insurance case that he settled. He contacted Bill Wisdom for advice on what he should do. When he tried to get in touch with Bill, the phone lines had been disconnected, so he called the State Bar and was told that the State Bar appointed an attorney to oversee whatever remained of the practice. “I was told that Jack Easter handled grievance matters, and when I called him, he put me in touch with you.” Todd went on, “I figured you might know something about the case, so here I am.”
Gwen leaned back in her chair and said, “Sure, I know about it Todd. I did all the research on it, and I also checked the court records on the settlement.” She leaned toward him and asked, “Where are you with the proceedings before the committee?”
Todd threw his hands in the air and said, “That’s just it, Gwen! I don’t have a clue. Apparently, the rules have changed, and I don’t know what I should be doing.”
Gwen assured Todd that she would help him. She had a pretty good handle on the new rules of disciplinary procedure that had recently gone into effect. “Don’t worry, Todd. We will get you through it. Get all of your files together on the case, and come see me in a week or so. I’ll contact the Committee and let them know I will be representing you. With the problems everyone is having over the disappearance of Bill Wisdom, I’m sure they will allow you some additional time.” Gwen added confidently, “I’ll take you through it chapter and verse when we meet again.”
Todd Pytoon was confused and angry over the complaint that had been filed against him, but he was really distraught over how careless he had been in the first place. After he had spoken to Gwen at length about the facts, he apologized to her for having been a part of the complaint that Plowden Torme had filed against her.
"I really have an appreciation for what you went through," he said. "This whole thing is very upsetting, and I brought it on myself. I can only imagine what it did to you. After all, you were just being a good lawyer."
Gwen looked at Todd with what she felt was probably a stern expression. "Listen Todd, that's all history. Right now, we have a very big fish to fry, and I don't want you distracted by what happened to me."
Todd thought this was a pretty funny comment since they were sitting on a boat!
Gwen went over the facts with Todd once again. Three friends had been out drinking. They all had had way too much to drink. One of them owned a car that they all had driven from time to time. Todd did not know if there were witnesses at the time they left the bar, because none of the three remembered where they had been drinking. No one knew who had been driving the car when it rolled three or four times off of the road at fifty to sixty miles per hour. All three of the men had-been ejected from the car and had sustained serious head injuries. None of them recalled the events of the day of the accident.
Todd explained to Gwen that he had gotten a call from the parents of one of the three men. Todd had represented a family member in a minor traffic violation, and they still had his card. All three of the men were in the same hospital in a rural community about fifty miles away from the county seat, so Todd went to see them. Two of them were able to speak to him. The third was in a coma and was expected to recover. The two he spoke with had no memory of the events that landed them in the hospital. Neither of them knew who was driving.
The folks that had called him were with their comatose son. They asked Todd to take care of him. They were quite emotional when they signed an attorney contract at the hospital and gave Todd the insurance information on their son's car. The other two signed similar agreements. Todd was to be paid a percentage of the recovery from the owner's insurance policy. There were no other insurance policies that would cover any of the three.
Gwen asked Todd, "How much was the policy for?"
"It was a single-limit $300,000 liability policy," Todd answered. "The way I saw it, each one of them would get $100,000, less my fees."
The first time she had looked at the case, Gwen thought that was reasonable, but then realized there was trouble.
"So, as I understand it, your plan was to wrap it up in nice neat package, open and shut, no problems, right?" Gwen asked.
"Yeah," Todd said, "pretty slick work, but so brainless!" Todd leaned back in the reclining chair and hung his head over the top of the back. As the blood began damming up in his face, he said, "I closed the case in forty-five days. Everyone seemed pleased. I even cut my fees to fifteen percent. I was the 'good guy,' the hero of the day. Until three years later! About three or four months ago, I started getting calls from the parents of the guy that had been in the coma. They were complaining because the money was gone, and the guy was unable to work."
"I'm surprised you didn't get sued, Todd." Gwen was shaking her head as she looked at her notes. Gwen waved the papers in her hand at a blond curl that had found its way over the top rim of her glasses and said, "You were representing three people that all had potential causes of action against each other, Todd. But the complaint has been filed by just one of them. What's the deal there?" Gwen' asked.
"He's the one that was in the coma and was the owner of the car. His parents were the ones that contacted me. He regained consciousness in a week or so, but has been disabled since the accident. The other two are nowhere to be found. The last I heard, one of them had been in jail in another state."
"And his damages were no doubt way in excess of the policy limit," Gwen stated more than asked.
"Sure were," said Todd. "His injuries were worse than the other two because he never really recovered to the point he could go back to work." Todd explained that the loss of memory in all three of them was an indication of brain damage, which motivated the insurance carrier to want to pay limits. Each one of his clients signed a release in favor of the other two and the insurance company.
"Well," Gwen said, "we need to make some decisions, Todd. First and foremost is whether we want to have an Evidentiary Hearing or a District Court jury trial or bench trial. We have twenty days from the date you received the Rule 2.14 written notification of Complaint." Gwen flipped through several pages and -- after looking at the date Todd received the notice -- said, "That gives us a whopping ten days to respond. You had twenty days from the date you got the letter." Gwen added, "It's a good thing you contacted me. If you had missed the date, you would have lost the election and would have an Evidentiary Hearing before a panel."
Todd looked bewildered and asked, "I thought there was an investigatory hearing first. Did we miss that?"
"No," Gwen replied, "There is no provision for an investigatory hearing under the new rules." Gwen took Todd through the rules, pointing out the highlights. Once a Grievance is filed, the Chief Disciplinary Counsel has thirty days to determine if it is an Inquiry or a Complaint. If it is an Inquiry, Counsel must notify the Complainant and the Respondent that it is dismissed. The Complainant can appeal, if it is within thirty days, to the Board of Disciplinary Appeals.
In Todd's case, however, the Grievance was determined to be a Complaint. Todd was sent a copy of the complaint and was asked to respond in writing. Todd was directed to respond, within thirty days of his receipt of the notice, to both the Chief Disciplinary Counsel and the Complainant. He did as requested but without the assistance of counsel. In no more than sixty days after the date that he must file his response, the Chief Disciplinary Counsel must conduct an investigation and a determination of just cause. Just cause was determined to exist, and now Todd had to elect whether to proceed before a panel or District Court.
Todd asked, "If I go to District Court, is it a jury trial?"
"You get your choice," Gwen said. "It can be jury or non-jury."
Todd said, "But the Evidentiary Hearing is before a panel of lawyers and public members?"
"That's right. At least one public member for every two attorneys, with the quorum being one public member for every two attorneys present at the hearing, but it has to be a majority of the members of the panel."
There was a knock on the door, and as Gwen looked up, Tidy Bohles opened the door. She looked at Gwen for what seemed an eternity and then said, "I think I know what your former employer has been up to, and where he may be."
Tidy entered the makeshift office aboard the Blue Norther, as Gwen was discussing the grievance process with Todd Pytoon. As she did, she told Gwen that she had new information about the disappearance of Bill Wisdom.
“Todd, Tidy. Tidy, Todd,” Gwen said introducing them; to which she added, “Try saying that five times!”
“Right,” said Tidy, not missing the fact that Todd was just a tad confused.
Todd stood up and said, “Gwen, I really have to get going. I’ll bring you all of my notes and the file later today. I really appreciate your help.”
“Nice to have met you, Todd, but please don’t leave on my account.” Tidy was very sincere when she added, “I can come back when you have concluded your business with Gwen.”
“Actually, Tidy, I think I would rather have Todd hear what you have found.” Gwen looked up at Todd Pytoon from her small teak desk. “He’s a pretty good lawyer, except for this current mess on his hands, and he may be able to help us with ours.” Gwen added, “Is a little quid pro quo okay with you, Todd?
Todd said that was fine, as Gwen reminded Tidy that Todd had represented Plowden Torme in what turned out to be a fake divorce trial by a client with an alias.
Tidy was already seated in the rounded corner of the stateroom in the Blue Norther that had been converted into an office. She had her arms wrapped around her legs and her chin resting on her knees. Her left and right arms were connected by the manila folder in her hands. “My, my” she exclaimed, “our little firm seems to be growing.”
“So what have you got?” asked Gwen.
“The State Bar attorney and I were digging around in the files that actually had paper in them.” Tidy unfolded herself and then opened the folder as though she was a conductor preparing to begin a symphony. “Of course, you remember that they didn’t seem to have any continuity with the practice and they referenced cases all over the country.” Tidy was now on her feet pacing the confines of the office/stateroom. It drove Gwen nuts! Gwen could traverse the room in two steps, but Tidy looked like she was strolling through a park.
Todd listened to Tidy, mesmerized by her intelligence and her voice. Gwen remembered when she had first met Thaidra ‘Tidy’ Bohles, and well understood the effect she had on people.
“Well,” she said matter-of-factly, “we have established a common link in every case that is referenced in the files. And it is not pretty.”
Gwen said, “How can that be? We went through all of them with a fine-toothed comb, and Bill Wisdom wasn’t an attorney of record, a referring attorney, witness, or anything else. Nothing was signed by him; there was no correspondence, and the attorneys in those cases that I talked to had never heard of Bill or any of the other cases.”
“All too true,” said Tidy. “but nonetheless, there is in fact a connection. Each one of these cases has had one common issue.” Tidy paused and said, “A party or witness that is, to this day, missing or has been confirmed to be deceased. And just for the record, Gwen, I think it is pretty much a certainty that Bill Wisdom wasn’t any more Bill Wisdom than The Molly was!”
Todd asked, “Who in the world is The Molly?”
Gwen explained to Todd that Molly Bluesinger was an heiress whose estate owned the property that Gwen’s employer, Bill Wisdom, called home. When Wisdom disappeared, Gwen and Tidy went to see Molly Bluesinger to ask her if she had any idea where her tenant might be. That’s when they met her personal attendant, Pooté Baranga. The attendant was the only one who could communicate with Molly through ‘Aural Interface.’ Pooté referred to her as “The Miss Molly.”
Todd said, “Oh yeah, I’ve heard of that,” nodding his head and staring at a spot somewhere above Gwen’s head. Gwen and Tidy just stared at Todd. “I have!” He said in response to their doubtful glares.
Gwen redirected her attention to Tidy and asked, “So, what does that have to do with Wisdom?”
“Don’t know. Can’t say,” said Tidy. “But the cases date back to when Molly Bluesinger’s lawyer, Bill Wisdom, was interred on her estate over ten years ago.”
Todd was waiving his hand like an excited third grader who just figured out that three times three equals nine, except Todd would have said “six.”
“What, Todd?” asked Tidy.
Todd calmed down. He began very slowly. “About three years ago, a friend of mine who was on the nationwide Asbestos Docket was supposed to go to a deposition in Elktide, Nebraska. Well, he couldn’t make it, and he asked me to go for him. Elktide is a pathetic smudge of a town just off of an interstate in the center of Nebraska. There is a bed and breakfast there and a bar. The guy that was being deposed was in what amounted to a hospice and was definitely terminal.”
Gwen said, “Let me guess. You think that’s one of these cases?”
“Not at all!” said Todd. He continued. “There were about six or seven lawyers there, some local, and after the deposition we all went to the bar. It was pretty much what you would expect. Except . . . ” Todd waived his index finger up and down and said, “I heard a story about a lawyer that specialized in the permanent removal of any problem witnesses that a lawyer might have in a case.”
Tidy asked, “Did one of the other lawyers tell you about this?”
“Nah!” said Todd, waving his hand at them as he continued, “I wasn’t even talking to them. I was talking to an old coot that passed for the bartender. He hated lawyers! Couldn’t stand the fact that there were so many of them in his bar. When I asked him why he hated lawyers, he said we were all just a bunch of hired guns. I thought he was just slinging the usual metaphors, but then he told me about this guy that had been in his bar about three or four years before, who had a little too much to drink. He told the bartender that he was on his way to some town south of Elktide to do some ‘special’ lawyer work.”
Tidy got out a map of Nebraska but couldn’t find anything called Elktide. She handed the map to Todd and said, “Are you sure you were in Nebraska?”
As Todd poured over the map, he said he was not surprised the place wasn’t on the map. Tidy was reviewing the notes in her folder.
“Bingo!” she said. “We found one case in Nebraska.” She went back to the map and located the county the case had been filed in. It was smack in the middle of the state about an hour south of the interstate.
Gwen’s eyes began to tear as she sat down. She was trembling as Todd and Tidy continued to review the map and the notes in her folder. Bill Wisdom, or whoever he was, had treated her well. He was kind and intelligent. He was a perfect gentleman, even when he had “a little too much to drink.” She had already reached the conclusion that Tidy and Todd were sure to reach.
Todd and Tidy continued locating areas on their maps that corresponded to the case-file information Tidy had retrieved. Gwen was rummaging through a box, seemingly looking for nothing in particular. Tidy said, “Gwen, give us a hand over here. Will you?”
Looking across the brown box at Tidy and Todd, Gwen said, “Bill gave me a frequent-flyer card that I was supposed to use whenever I went out of town on a case. It was in his name, and he was really particular about getting mileage credit for everything we did.” She then emerged from the box saying, “And here it is!” She waived the card like a brass ring.
“Are you going somewhere?” asked Todd.
“Don’t be ridiculous, Todd,” said Gwen. “This card is obviously useless now.”
“So what’s the big deal?” Todd said returning to the maps.
“Where did you get this guy, Gwen?” Tidy said. She then went on to explain to Todd that, with the card, they could find out where Bill Wisdom had flown and correlate the flights to the locations on the map.
Gwen picked up the phone and dialed a number. A moment later she said, “Hi, this is Gwen. We need your help. Fine, I’ll see you at three, same place.” Gwen hung up the phone as Tidy and Todd waited for an explanation.
“That was Tyler Toozer,” Gwen said as she returned to the map table.
Tidy asked, “How did you know how to contact him?”
Gwen gave Tidy the short version of the Tyler Toozer saga. After he had been cleared of the charges made by Destiny Torme, he was reinstated as a detective, but he was no longer assigned to homicide. He was now attached to the District Attorney’s White-Collar Crime Division and had been working on the Plowden Torme divorce case. Once Destiny and Plowden’s real identity had been discovered to be Bethesda and Ford Chase, Gwen had given Tyler what little information she had. He gave her his cell number and offered to return the favor. She was going to meet him at the coffee shop in her old office building. Gwen said, “I think it would be a good idea to get him involved in this mess with Bill Wisdom.”
Tidy shrugged and said, “There certainly seems to be a connection.”
Gwen nodded, saying, “That’s right, and what we are doing right now is driven by our curiosity rather than a paying client.” She then looked at Todd and said, “Todd is a paying client -- don’t get me wrong, Todd -- but he is paying us by helping us with this little project which is beginning to look like it will be bigger than we think. Listen,” Gwen continued, “Plowden Torme a/k/a Ford Chase is dead, and I have been cleared of any involvement. Plowden and Destiny have both been revealed to be scam artists. We have nothing to do with Destiny or any of the people she has hoodwinked. I was trying to find Bill Wisdom because I worked for him, and he disappeared. Trying to find him has now opened an even bigger can of worms. He certainly isn’t the Bill Wisdom that has been buried at Molly Bluesinger’s estate for the past ten years. And now we have a box full of files that belonged to Bill, and they all have one common link -- someone died or disappeared!”
“I think you are right, Gwen,” Tidy said. “This isn’t really about you at this point and could turn up trouble.”
Todd said, “I don’t think I want to know any more about Bill Wisdom.”
Tidy, Gwen, and Todd began putting the files, maps, and other materials they had collected into the box. Gwen would deliver the whole package to Tyler that afternoon.
Gwen and Todd then began working on the hearing, which was coming up shortly. Todd had timely responded to a grievance filed against him and had requested an evidentiary hearing. The complaint was based upon a conflict of interest in a settlement he had handled for three people who were injured in the same accident. One of the three people was now complaining that his share of the settlement was not in his best interest. Gwen had explained to Todd that the reason he had to elect between an evidentiary hearing and a trial was because the Chief Disciplinary Counsel had reviewed the grievance and had determined that there had been a violation of the Disciplinary Rules of Professional Conduct. The State Bar’s attorney had filed a pleading with the Evidentiary Panel setting out the facts and the alleged rule violations. Gwen and Todd had submitted Interrogatories and had received additional information from the Chief Disciplinary Counsel.
“So what’s your take on the State Bar’s case?” asked Todd.
“Well,” Gwen explained, “you did in fact represent these three men. You had an attorney-client contract with two of them and then an additional contract with the parents of the one that was comatose.” Gwen handed the three contracts to Todd and continued, “When I first looked at this, I didn’t see the problem; but after talking to the person who said he was Bill Wisdom, it made sense to me that you were setting yourself up. Each one of the three had a potential claim against whoever was driving, and we don’t know to this day who that was.”
Todd asked, “Are you telling me that I violated the conflicts rule because each of them could have sued the other two, alleging that one of them was the driver?”
“That’s about the size of it,” said Gwen. “The real problem is there was a single- limit policy that would pay a total of $300,000, and it was divided equally among the three of them. Now the man who was in the coma is convinced he should have received all of the money, and that you as his lawyer failed to represent his interest.”
Todd pointed out to Gwen that he had dealt with the comatose man’s parents, and that they had agreed with the division of the funds.
“In the discovery we received,” said Gwen, “there is a statement from the man’s father that no one explained to him that there was a conflict, and that no one told him his son might be entitled to more money.”
Todd told Gwen that he explained very carefully to the parents that there was only the $300,000, and that the likelihood of any other recovery was slim.
Gwen said, “He mentions that conversation in his statement, but he claims you told him that the three-way split was what the insurance company wanted to do, and that you recommended that the parents take it.”
“Gwen, I swear I thought that was the best thing to do.” Todd was emphatic. He explained to Gwen that the guy in the coma was just as likely the driver as either of the other two and would not be able to testify that he wasn’t the driver, or that the others were. Todd was convinced that this was the best deal he was going to get for any of them.
Gwen said, “Todd, I don’t doubt that your heart was in the right place, but we have to look at who you were representing and what, if any, potential conflicts there might have been.”
Elsewhere, Pooté Baranga answered her cell phone, “Yes sir, Mr. Taktime.” Pooté listened for a moment and then said, “They were looking for the poor Mr. Wisdom, and I showed them to his grave.” Pooté was nodding her head vigorously saying, “Yes sir, Mr. Taktime. Yes sir.” Pooté turned the desk chair to the window that framed one of the beautiful gardens of the estate. As Pooté Baranga rocked, she said to herself, “Mr. Yule Taktime is not a happy camper.”
Gwen was putting the final touches on Todd’s hearing. It was set for “trial” before a panel in two weeks. All discovery had been completed and exchanged with the Chief Disciplinary Counsel. Other than Todd, they would not have any witnesses. As she was putting the file materials back into the folder, the phone rang. Gwen and Tidy did not have a secretary or an assistant, so they took turns being the receptionist/secretary/assistant. Gwen pleasantly “sparkled” into the receiver, “Gwen Gewürztraminer, may I help you?”
“Yes,” replied the caller. “My name is Mazda Mullet. I do some part-time paralegal work for Plenary & Panagony, and one of their attorneys suggested I give you a call.”
“Thanks so much for thinking of us, Ms. Mulay,” said Gwen, repeating the name as she heard it, “but we really can’t afford support staff right now, maybe in a few months if you would like to call again?”
Mazda said, “Please call me ‘Mazda,’ and actually it is I who would like to hire you.”
Gwen was twice surprised, pleasantly so, and said “I’m so sorry, Mazda, when can you stop by?”
“Well, if you’re not real busy, I can be there in twenty minutes.”
Mazda Mullet walked into Gwen’s office aboard the Blue Norther, struggling to accommodate her 6’2” frame to a new environment. She was smartly dressed in a dark blue suit with a colorful silk scarf around her neck. Mazda was a striking beauty, clearly put to task in Tidy’s diminutive home and office. “Very ni . . ., er, different office, Gwen”
“It takes a little getting used to.” Gwen said sympathetically. “Tidy is very much at home here, due in no small part to the fact that it is her home, and she has been incredibly kind to me since I was forced to relocate my practice.”
“I heard about that, Gwen. You are something of a mainstream continuing saga in the legal community. You would be surprised how many friends you have.” Mazda was trying to find the center of her chair. She gave up, reminding herself that she was on a boat. Mazda said, “I have been subpoenaed for a deposition, and I need representation for that, as well as anything that comes up afterward.”
Gwen looked at the subpoena that Mazda handed her, noticing the spelling of her last name. She made a mental note to be careful pronouncing “Mullet.” “Why don’t you give me the details, Mazda?”
Mazda explained to Gwen that she was a paralegal and had been doing freelance work. Some years earlier, she was employed part-time at the Plantagenet firm assigned to the defense team in a suit against a bathtub design company. While she was engaged, the Indexer firm offered her a full-time job, working on a class action suit on behalf of injured parties against twenty-seven bathtub design firms. Mazda didn’t see how this could work because of the potential for a conflict of interest. The Indexer firm was really hot to hire her because she had a great deal of experience in document control. So, the new firm contacted the firm that Mazda was working for and settled the only case they had against the design company they were defending; they also signed an agreement that neither they nor any of their attorneys would file any suits against the design company or share any information about them.
Gwen whistled, “Boy, it must be nice to be wanted!”
“It was indeed,” said Mazda. “Everything seemed to be fine until three years later. I left the firm and went back to freelance work. That same month, Indexer filed a suit against the bathtub design company that I was working on when I was with Plantagenet. A motion to disqualify was filed, and I was subpoenaed to testify.”
Gwen said, “I don’t think you have anything to worry about from the standpoint of wrongdoing. I also think you are smart to be seeking representation. As I see it, this is a dispute between the firms, and the agreement will probably control. Your testimony may be useful, but I don’t think it will be persuasive. The courts apply two different standards, one for attorneys and another for their assistants. For attorneys, there is a presumption that they gain confidential information on every case. It doesn’t really matter if they worked on the case or not because there is an irrebuttable presumption that they share information with the members of the old and new firm. For folks like you, there is an irrebuttable presumption that you gain confidential information only on cases on which you work, and a rebuttable presumption that you share that information with a new employer.”
Mazda nodded, “I appreciate that. The scope is what I am concerned about.”
“What do you mean?” asked Gwen.
“Well,” Mazda began, “I was in charge of about two and a half million documents, hard copy and digital. I was also present for all of the client meetings.”
Gwen began to understand. “You could be tied up for months in deposition if they decided to question you about everything you were involved in.” Gwen was about to continue when the phone rang. As she reached for the phone, she dropped her notes and as she was retrieving them she heard Mazda say, “Law Offices of Gwendolyn Gewürztraminer, may I help you?” Mazda clicked the hold button and said, “Gwen, its Mr. Toozer.”
“Thanks, Mazda.” Gwen picked up the phone and said, “What’s up, Tyler?” Gwen began shoving papers into a brief case while she listened to Tyler. She managed to get her coat on without breaking the contact between the phone and her ear. She then said, “On the way.” She hung up the phone and was on her way to the deck. She paused, stuck her head through the hatch and said, “Mazda, watch the office for a while!”
Mazda sat at the small teak desk and carefully arranged pen and paper. A forty- five-foot crew boat motored by, creating a mild wake. Mazda watched the pen role from the desk to the floor, stood up and hit her head on a light fixture. She resigned herself to perfecting maneuvers in this strange little office until Gwen returned from . . . wherever.
Gwen slid into Tidy’s A6 and headed toward the north side of town. Tyler Toozer sounded somewhat anxious when he summoned her to the Betty Binx Wine Boutique. The wine and sandwich shop was popular with north-side professionals. It served as a convenient meeting place for friends and business associates alike. She was smart to take the North Mensan Parkway through the east side of town rather than the Loop. Traffic was ridiculous at this time of day, and if she had any chance of meeting Toozer at the agreed time, the NMP was the only way to get to Betty’s from the marina.
Gwen’s thoughts about what was up with Tyler were interrupted by the distinctive ring of Tidy’s cell phone. She hit the “hands-free connect” on the steering wheel and said. “Hello, this is Gwen.”
Tidy’s voice filled the interior of the car as she said, “I want to report a stolen car!”
“Hey, T,” Gwen replied. “I figured you would still be in the air.”
“I lucked out, Gwen, got an earlier flight, and we are rolling on the runway as we speak.”
“Listen,” Gwen said. “I am on my way to Betty’s, and I’ll be going by the airport in about fifteen minutes. I’ll swing by and pick you up.”
Tidy agreed with the travel arrangements and then asked, “Who answered the phone? She said something about a Mazda and then told me you were in the car on the way to meet Tyler Toozer.”
“Long story on the Mazda thing,” said Gwen. “I’ll tell you about it in the car. Toozer wants to talk about the files we sent to him last month. I told him that we really don’t want to be involved any more, but he was pretty anxious.”
Tyler Toozer was an investigator with the white-collar crimes division. He was promoted partly because of the worst year in Gwendolyn Gewurtztraminer’s life, and the work he had done on a case that involved her and a client. It all started with Plowden Torme. Torme was the respondent in a divorce that Gwen tried. She won her case, but Torme filed a grievance with the State Bar, claiming misconduct. While the complaint was on appeal, Plowden Torme was murdered. The investigating officer was Tyler Toozer, who at the time was assigned to the Homicide Division. Tyler was investigating two suspects, Gwen and Plowden’s ex, Destiny Torme. During his investigation, he learned that the Torme duo were con artists wanted in several states under the names of Ford and Bethesda Chase. Bethesda charged Tyler with bribery, which resulted in some time off for him and reassignment to “white collar.” Then, when things seemed to have reached their nadir for Gwen, her employer Bill Wisdom disappeared. Gwen met Tidy, a private investigator, along the way, and the team discovered that Bill Wisdom had died ten years earlier, and that whomever Gwen was working for had assumed his identity. Gwen and Tidy were concerned for their safety when they learned that Wisdom was much more than your ordinary work-a-day lawyer. They turned all of their files over to Tyler, hoping to get on with their lives. Tidy and Gwen’s hopes would prove to be misguided beyond their belief.
As they entered the small restaurant, Gwen and Tidy saw Tyler sitting in the back facing the front entrance. As they approached he waved them to the table. Tyler stood up, smiled, and said, “Well, this is my lucky day. I have the whole crew here.”
Gwen and Tidy sat down, acknowledging his pleasantries. “What can we do for you, Tyler?” asked Gwen.
Tyler knew Gwen and Tidy pretty well -- well enough to know there would be no small talk before dealing with the business at hand. “Gwen, I need more information about a possible client of your firm, possibly even a client of yours. I understand that, ethically, you may not be able to answer my questions,” Tyler said, taking a breath and leaning back in his chair.
“Just don’t ask me anything about Destiny Torme, or I swear, Tyler, I’ll scream!”
“It’s not about her,” Tyler said with a smile, “And I don’t want to be anywhere near you if you start screaming at me or anything else.” Tyler leaned forward with his arms on the edge of the table. “Do you know, or have you ever represented, a person known as Mr. Yul Taktime?”
Tidy was the first to respond, laughing and shaking her head.
Tyler said, “I know it’s a weird name, but I’m serious.”
“I’m not laughing at the name, Tyler,” Tidy was also leaning on the edge of the table. “I’m laughing at the fact that you, of all people, would ask Gwen if she represented a fictional character dreamed up in the back room of a bar populated by off-duty instructors from the police academy.”
“So you know about that,” Tyler said. He chuckled when he saw the expression on Gwen’s face.
“I can’t answer the question,” Gwen said, “if I am not on the inside.”
“Well,” Tyler said, “Tidy is right and is plugged in better than I thought. Yul Taktime is considered by the intelligentsia to be fictional only because no one has been able to verify whether he ever existed, exists now, or is someone else using the name as an alias.”
“Okay,” Gwen said, “so why all the ethical preliminaries. You obviously think I know something about this guy, and that he might be a client, which -- just for the record -- he isn’t; so why me?”
“Yeah,” chimed Tidy, “Why Gwen?”
Tyler looked around the restaurant for a moment and said, “I have reason to believe that, if Yul Taktime is not a client of yours or the firm that you worked for, then Bill Wisdom and Yul Taktime are one and the same person.” Tyler slid a document across the table to Gwen. “Have you ever seen this?” he asked.
Gwen nodded her head and said, “Yes it’s my resume. I had it printed when I got out of law school. I sent it to just about every firm in the city. What’s the big deal?” Gwen asked.
Tyler turned it over, and on the back was Bill Wisdom’s signature under the word “HIRE.” “Look very carefully at the word ‘BILL,’” Tyler said.
Tidy lifted the resume to the light and said, “Yul has been changed to Bill.”
Tyler said, “Correct, and the fact that we have connected Bill Wisdom, a/k/a who knows, to homicides here, namely Bill Wisdom and Plowden Torme, and to one in Nebraska, he very nicely fits the profile of Yul Taktime -- a well-known legendary contract killer who is fondly discussed in bars by off-duty instructors.”
Gwen and Tidy returned to their office aboard the Blue Norther. As they stepped down the ladder into the cabin, they were surprised to see Mazda perched in the chair behind the teak wood desk. It was after five in the evening, and Gwen had been gone for nearly four hours. Mazda had been on the phone when Gwen had rushed out to her meeting with Tyler. Gwen had left Mazda somewhat in charge of the office, never expecting her to stay there.
Gwen introduced Mazda to Tidy and explained, “Mazda was here when Tyler called. She wants us to represent her. It seems she has been subpoenaed for a deposition. We had just gotten through discussing the history when I had to leave. She was kind enough to watch the office.”
“Well, thanks ever so much,” said Tidy. “I know Gwen feels badly that you have been here all afternoon.”
“Not at all,” Mazda said, rising to her full six feet and two inches, which just happened to be three inches more than the floor to ceiling height of Tidy’s office. Mazda extended her hand to Tidy, as Tidy tried to match the tilt of Mazda’s head, greeting her eye to eye. “Believe it or not,” Mazda announced through a remarkable smile, “I think I have managed to overcome my discomfort with the movement in your office and have actually been fairly comfortable this afternoon.”
Gwen and Tidy looked at each other and said, “What movement?”
“Well, the . . .” Mazda rocked her shoulders left and right, “. . . movement.”
Gwen and Tidy laughed and were quickly joined by Mazda. The three unanimously agreed that it was time for wine. Tidy placed a chilled bottle of 1999 Sonoma Cutrer Chardonnay into a massive bronze cork screw. It was permanently mounted to the edge of a small bar that Tidy had built into the corner of the cabin. As she tightened her grip on the clamp that held the throat of the bottle, she eased the lever up and then down, removing the cork from the bottle. She handed the cork to Mazda. “Word on the street is that real cork is on the way out. Hang on to that, some day it will be rare!”
Mazda smiled, accepting the token and promise of friendship. Studying the cork she added, “The future ain’t what it used to be.”
Tidy laughed and pouring the wine replied, “Yogi Berra.”
“She’s like that,” Gwen said. “Knows everything, sees everything, and hears everything.” The three women were enjoying the evening, but soon the frivolity gave way to the professional side. Gwen picked up a letter and said, “Let me run this by you,” flipping to the second page. It was scored with highlighter and had notes in the margin. Before Gwen began, she turned to Mazda and asked, “I know a couple of glasses of wine is probably not much in the way of compensation for this afternoon, but welcome aboard our team?”
Tidy nodded her head in agreement.
Mazda held up her glass and said, “I can’t think of any place I would rather be! I accept. We can work out the details later.”
Gwen and Tidy were obviously pleased with the newest addition to their expanding office as they got down to business. “Here’s the deal,” Gwen began, “a lawyer from out of state is considering taking a case in our jurisdiction and wants a legal opinion. He wants to know if he can be disqualified by his opposing counsel in a divorce case.”
Tidy sighed, “Hope it’s not the Tormés, the Chases, or the Wisdoms!”
“No,” Gwen chuckled, “he is actually in Missouri. This is kind of an ethical problem. He is thinking about representing the wife in a divorce case and wants to know if, or to what degree, he would be vulnerable to a disqualification attack.” Gwen continued from the outline in the letter, “He is also concerned whether he would be violating the State Bar Disciplinary Rules if he takes her as a client.”
Mazda asked, “Why is he concerned?”
“Apparently,” Gwen said, as she reviewed her notes, “he represented the husband in a couple of matters. Let’s see . . . he prepared the husband’s will, and he also drafted a warranty deed conveying a tract of land from the husband’s father to the husband.”
“Isn’t that enough to disqualify him?” asked Mazda.
“I don’t know for sure, but there’s more,” Gwen continued. “The property is presently disputed, and there have already been claims made against it. He also advised the husband about adopting the wife’s children from a prior marriage.”
Tidy chimed in, “Doesn’t there have to be a violation of the disciplinary rules before he can be disqualified?”
“Good question!” Gwen flipped to the letterhead on the first page, “Mr. Hieronymus Ponteen, doesn’t think that is necessarily the case, and I tend to agree with him. The violation of a disciplinary rule is not an essential prerequisite for disqualification.” Gwen explained that the disciplinary rules provide guidelines. They are not controlling standards for disqualification motions, and as guidelines, they will be relied upon by the courts as potential bases for disqualifying a lawyer.
Mazda said, “What would I have to prove to disqualify a lawyer? Isn’t it enough that he prepared the deed that they are fighting over?”
Gwen explained to Tidy and Mazda that an attorney-client relationship does not necessarily arise when a person hires an attorney to draft an instrument, but does not seek the attorney’s legal advice about the instrument or the transaction for which it is used. In such cases, the attorney is considered a mere scrivener. She continued, “To disqualify a lawyer, you have to prove that -- as a result of the attorney-client relationship -- the lawyer has received confidential information and that his possession of the confidential information has caused actual harm to the person trying to get him disqualified, and there isn’t a lesser means available to remedy the harm.”
Tidy said, “But no one is trying to disqualify Mr. Ponteen. He just wants to know whether the work he did for the husband would prevent him from representing the wife.”
“That’s it in a nutshell,” said Gwen.
“My daddy always told me that ‘it only takes one hand to get into a wildcat fight, but sometimes it takes more than two to get out of it,’” Mazda continued. “I think Mr. Ponteen will definitely have to litigate the issue and, whether he wins or not, it could be very expensive for his client. I can’t imagine the husband is going to just sit back and let him represent his wife.”
“Good point,” Gwen said. “Disqualification is an extreme remedy, and there would probably be an appeal as well as hearings in the trial court. I think he is certainly vulnerable, win or lose.”
In the pending silence, as the three pondered Hieronymus Ponteen’s potential miseries, all eyes looked to the ceiling in response to the sound of footsteps on the deck above.
Gwen, Tidy, and Mazda watched the opening leading down into their offices. The sound of the footsteps stopped directly in front of the hatch. The evening sky was suddenly obscured by grey flannel, as a black Johnston & Murphy wingtip invaded the space below.
“Can I help you?” Tidy’s voice was strong and commanding. She didn’t care for uninvited guests, and this certainly was not a store-front operation.
The visitor continued entering as his voice raced ahead of his feet. “I am looking for Gwendolyn Gewürztraminer.”
Gwen and Tidy’s breath caught simultaneously as Bill Wisdom’s head cleared the top of the hatch.
“Hello, Gwen, long time no see!” Bill displayed his best charismatic smile. “Gosh, it’s good to see you. Nice office. Looks like you landed on your feet.” Bill surveyed the interior of the cabin, although it was very obvious that he was not looking at the decor. Bill moved from the bottom step of the hatchway ladder and quickly occupied the center of the cabin. The three women all took a step back as Bill a/k/a Yul Taktime reached into the left breast pocket of his Hickey Freeman suit, hesitated a moment, and removed two banded stacks of $100 bills. He extended his right hand to Gwen and said, “Back pay and a little extra for your troubles.” Bill’s smile never faltered. His eyes worked rapidly between Gwen and Mazda. He seemed to disregard the diminutive member of the trio who was tucked against the bulkhead to his right. He was flanked by Gwen and Mazda, neither of whom had made a single sound since his arrival.
When it became clear to him that Gwen was not reaching for the stack of bills, he looked to his left, saw the bar, and placed the stack of bills next to an empty wine bottle. “Now that we are square, Gwen,” Bill said, “we have some unfinished business.”
Gwen was stunned by how quickly the evening went from Bon Ami to I Know What You Did Last Summer.
Bill continued, “Where are my files? I suppose you took them with you, yes?
“No,” Gwen answered. She then rattled a bit: “Where have you been? Why did you leave? The State Bar took all of your files.”
Tidy rolled her eyes and thought, “Gwen shut up!”
“Is that all?” he asked.
“What do you mean?” Gwen asked.
“Are you telling me you don’t have copies, that you haven’t read them, that you haven’t been conducting your own end-run investigation into my business, that you haven’t visited Bluesinger or Baranga, and finally and most incredibly that you and your little friends haven’t been talking to Toozer? Do you really expect me to believe that you don’t know what is going on?”
Bill’s smile remained intact, even though he was becoming quite agitated. He now appeared more sardonic than charismatic. Tidy knew from many past experiences that, as the sun was setting in the west, violence was rising here in her home. She had her back against the bulkhead and was trying her best to blend into it. She wanted to be as non-threatening as possible. When Tidy backed up, she slid her keys from the desk into her hand. She was now feeling the remote unit behind her back, isolating the A6’s remote panic system. She had programmed it to send an immediate alert to law enforcement together with the exact location of the vehicle via Global Positioning Satellite. She sent the signal as Bill was asking Gwen if she expected him to believe her.
Mazda stepped forward saying, “Listen, Mister, I don’t know who you think you are, but it’s time for you to go!” When she took the first step, Bill reached to the small of his back and drew a SIG-Sauer P228. Bill moved with blinding speed. Mazda kicked at Bill’s hand but missed. She knew she would not have another chance and gave Bill a sheepish “You Win” shrug.
While the dust settled, Tidy — who was now almost invisible to the assailant — moved very carefully to a position slightly behind and to the right of Bill/Yul. From this position she was able to easily place her hand on the stopcock that would open the bilge to the sea through a three-inch pipe. When Mazda delivered her failed attack, Gwen dropped to the deck as Mazda’s foot cleared her shoulder. When she did, Bill changed his position to cover his left side. Tidy, now outside his peripheral vision, slammed the stopcock ninety degrees to the downside. The immediate effect was to blow the cabin floor boards up. The Blue Norther would be completely flooded in less than sixty seconds. The three women then heard sirens approaching. When they cleared their eyes of the initial blast of water, Yul Taktime, was no where to be seen. He had vanished once again.
With the arrival of the police, Tidy closed the intake valve and started the bilge pumps. Tyler Toozer was in the cabin helping Gwen, Tidy, and Mazda to the upper deck, a little wet, but none the worse for wear. Tyler asked Gwen what had happened.
Gwen put her hand on Tyler’s shoulder and said, “Mr. Wisdom came to pick up his files!”
“He was here?” Tyler was shocked to hear this.
“Yes he was, Tyler, and I must say he was not pleased that his files weren’t.”
Tyler continued to question Gwen. “Did you see where he went?”
Gwen sat down on a storage chest and was still working the towel across her face and arms. Tidy and Mazda joined them.
“It was the most amazing thing I have ever seen!” Gwen said. “One second I was staring up at his gun, and the next there was water everywhere. Then, he was gone.”
“I wish I could do that,” Tidy said. “It was definitely one of the fastest exits in history, and I didn’t see as much as a split second of it.”
A uniformed police officer came up to the top deck from the cabin. Tidy watched as he approached the group. He was dressed in a dark blue BDU with a black web belt containing a full array of weapons and equipment. He was holding a Ziploc® bag that contained the two stacks of bills that Bill offered to Gwen. “Detective Toozer, if you have just a minute.” The officer handed Tyler the stack of bills. “These bills are what used to be bank security dye packs. Fairly common some years back, but these are a new breed.”
“How so?” Tyler asked the officer, as he examined the contents of the bag.
“Well,” the policeman said, “these bill packs contain wireless technology designed for tracking the pack using satellite-based global positioning technology to catch robbers. It uses a miniature wireless unit like a beacon similar to mobile communications. It’s a good thing they had that flood. There is enough explosive in this pack of bills to take out the entire dock. The water short circuited the receiver; otherwise, it could have been detonated from anywhere there is cellular service. First time I have ever seen that happen. You have some very lucky friends, Detective.”
Tyler looked at the uniforms on the dock and on the boat and said “I think we are all lucky, Officer.”
No one saw the swirls as a dark figure emerged from the water on the opposite side of the marina. The passenger door of a black Cadillac XLR opened briefly without a sound. Seconds later, all that remained were ever-widening ripples.
Gwen looked at Tyler Toozer and said, “Pay days always were a blast.”
The repair work to the Blue Norther was not as extensive as Tidy had thought. It was comforting to know that after the visit from Yul Taktime, they would be back in their office within a week or so. In the meantime, Tidy and Tyler Toozer were following up on several leads. Although she was technically a target of an attempted homicide and what Tyler was calling a “terrorist attack,” he acquiesced when she insisted upon helping him with his investigation. Of course, Tidy did have some leverage.
The day after the visit from Gwen’s former employer, Tidy took her 3.8M Zodiac inflatable — which she had equipped with a 40-horsepower Mariner outboard — for a spin around her neighborhood. She shut the engine off, floated in the middle of the harbor, and scanned 360 degrees with her Steiners. She decided to check out an area 40 degrees off the port bow of the Blue Norther. About a quarter of a mile from the slip, there appeared to be the remnants of an old jetty. Tidy couldn’t tell from her position, but it looked like a road extended to nearly the end. She fired up the Mariner and quickly covered the quarter mile to the end of the jetty. Tidy secured the Zodiac and climbed onto the rocks. Even with the tide out, it was only four to five feet from water level to the top surface. She immediately saw the tire tracks from what appeared to be low-profile Z-rated tires. She also found the stub end of a MacDonald Export A cigarette.
When Tyler “agreed” to include her in his investigation, she shared her findings with him. Tidy had been careful and didn’t disturb anything in the area. Tyler dispatched an evidence crew to the scene.
“So what’s the next move?” asked Tidy.
Tyler looked at Tidy’s diminutive frame, thinking, “This teeny, tiny person bested a legendary international killer, and I should be delighted to have her working with me, but this is so wrong!”
“Well, Tidy, there are only three tobacco shops in town. Export A cigarettes are Canadian, and I’m guessing one of them carries that brand, so what do you say we hit the local cigar shops?”
“Your ride or mine?”
Tyler ogled the A6 thinking, “This is so wrong!”
Meanwhile, Gwen and Mazda set up shop in the courthouse library while the office was getting the “once over.” It was a little inconvenient, particularly with the opening and closing times, but all of their work in progress was accessible from their laptops. When Tidy made the decision to live and office on the Blue Norther, she was wise enough to have offsite servers for her data base. “Lucky for us, ” thought Gwen, as she pulled up an opinion letter she had drafted.
“What are you working on, and can I help?” asked Mazda, as she positioned her laptop on the eight-foot conference table in the law library. Mazda liked the expansiveness of the room and table. At slightly over six feet, three inches, she was in her element.
Gwen replied, “Yes, pull up Pyntobean.doc. There is only the opinion letter.” Gwen brought Mazda up to speed.
The Pyntobean case was all about money. Attorney’s fees, specifically, and who was entitled to them. Cyclo Pyntobean is a personal injury attorney who accepts referrals from other attorneys. One such attorney was Odysseus Glyphada, known to his friends as “OG.”
Mrs. Clayton Corderoye, Individually and as Next Friend of Spud Corderoye, her minor son, was represented by OG. Her husband, Clayton, had been mortally injured while using an allegedly defective ear-cleaning mechanism. The tool consisted of a six-inch piece of standard white wood, approximately one and a half millimeters in diameter. One end of the device was swathed in white cotton. On the day of the accident, Clayton was using it on his left ear, with what he considered to be the appropriate technique. He was standing in his bathroom with the offending instrumentality in his left hand. His elbow was perpendicular to the bathroom door when his three-year-old son, Spud, ran into the door, striking his dad’s elbow and forcing the defective apparatus into his father’s left brain. Clayton’s wife called EMS, despite her husband’s objections. When he described the accident to the technicians, they decided it would be a good idea to head for the hospital. Clayton never made it and was DOA.
OG had Mrs. Corderoye sign a contingency-fee contract and referred Clayton’s widow to Cyclo Pyntobean. Once in the hands of Pyntobean, the case quickly settled. Cyclo and OG had agreed to split the 40% fee. When Pyntobean ran a routine check with the State Bar, he found out that OG had been suspended from the practice of law when the contingency fee agreement was signed by Mrs. Corderoye. Pyntobean is of the opinion, according to current case law, that the contingency fee contract was void and unenforceable.
“Cyclo wants to know if OG has any right to the fee,” Gwen explained.
“Why was OG suspended?” Mazda asked.
“Apparently he didn’t pay his Attorney Occupation Tax.”
“Oops,” said Mazda. “But you know, Gwen, I was a public member on the State Bar Grievance Committee for a few years, and — I’m not real sure about this — but I think the attorney gets reinstated retroactively when he pays the fees, so why would it make a difference?”
Gwen scrolled down to a paragraph in her letter and said, “Mazda, that would be State Bar Rules, Article III Membership, Section 7 Return to Former Status, and I cite it right here. When a member, who has been suspended for nonpayment of fees or assessments, removes such default by payment of fees or assessments then owing, plus an additional amount equivalent to one-half the delinquency, the suspension shall automatically be lifted and the member restored to former status. Return to former status shall be retroactive to inception of suspension.”
“That’s pretty much as I remembered it,” said Mazda.
Gwen pulled up the next page and said, “Yeah, but . . . .” She paused, reading the result of her research, and then said, “You see, Mazda, the occupation tax is covered by State Bar Rules, Article III, Section 8(g), which provides for reinstatement but does not say it is retroactive. Article III, Section 7 only applies to membership in the State Bar and not to the Attorney Occupation Tax. According to the Tax Code, the State Bar is required to suspend a lawyer who does not pay his taxes within 90 days after the date the tax is due. When he pays the taxes, he will be reinstated, but there is no provision for reinstatement retroactively.”
Gwen added, “An Attorney can also be suspended for defaulting on a student loan, and that’s not retroactive either. And to make matters worse, it is a violation of the State Bar Disciplinary Rules to practice law during a period of suspension. That means, in addition to a fee agreement being void, it was misconduct to enter into it in the first place.”
“What if the suspended attorney has just negotiated a plea bargain in a criminal case?”
Gwen threw up her hands and said, “Holy smokes, Mazda, that could be a real can of worms! According to the information we got from Cyclo Pyntobean, the case he is relying upon is so new that there hasn’t been time to appeal it to the Supreme Court. I suppose the Court could extend the retroactive reinstatement, but the Legislature chose not to do so when they wrote the statute.” Gwen looked at her notes and continued, “Pyntobean says that over a hundred lawyers a month are suspended by the Supreme Court for non-payment. There is just no telling what kind of chaos that could create.”
“Well, I guess someone out there thinks lawyers are smart enough — after seven years of college and law school and passing the bar exam — to pay their taxes,” Mazda said.
Gwen cocked her head and frowned, “Did I just get bashed?”
Gwen and Mazda put the finishing touches on the opinion letter to Cyclo Pyntobean. They were in the law library of the county courthouse while repair work was being completed on the Blue Norther. Although the room was open to the public, it was usually quiet and a good substitute for their office. They were seated at a large conference table with their wireless laptops open in front of them. People would come and go from time to time, so there was no reason to notice him when he entered the library. He was short, about 5’3” and almost completely round. He was dressed in a three-piece suit and wore a baseball cap with a Yankees insignia. He had shoulder-length hair that was pulled back and held with a turquoise band.
“Good morning ladies,” he announced as he sat down opposite them at the table. His engaging smile lit up his round face.
“Hello,” said Gwen, “may we help you?”
“Oh yes, yes indeed, you can help me!” he said extending his hand, not quite half way across the table, but certainly as far as he was able to reach.
Gwen took his hand, as did Mazda in turn.
“My name is Findley Findley,” he said as he repositioned himself in the conference chair. “Lovely office!” It was clear from his chuckle that he was joking.
“So, Mr. Findley, what can we do for you?” asked Gwen.
"Please call me Findley,” he said, as his smile evaporated into a serious business countenance. “I would like to retain your services in a matter of some importance to me and my employer.”
Gwen asked, “Who is your employer, Findley?”
He pressed his palms together as though praying and said, “Speaking for myself, I am General Counsel for Twedle & Twedle, Inc. Our firm is in the intellectual property design and marketing business. Three weeks ago, one of our retained attorneys disappeared with technology recently developed but unpublished and extremely confidential. Two days ago, I received a letter from him.”
“If he is blackmailing you or holding your property for ransom or something, you really need to be talking to the police.”
“That would be my first consideration as well,” said Findley, “but under the circumstances, absolutely not a consideration.”
Mazda folded her arms and leaned back into her chair, “You lost me, Findley. And what makes you think we can do anything for your company?”
“It’s really quite simple,” said Findley. “Speaking for the company, the project involves hardware and software that is capable of accessing any encrypted database anywhere. It was not designed for that capability, but began as research to protect against misfeasance by cyber terrorists. It was, in effect, reverse engineered. We hired the best technicians and set them to the task of breaking into highly secured data systems. It was our intention to design a security system. In doing so, we wound up with a formidable product that we had no intention of releasing to anyone, not even the government. Before we could neutralize the system, the attorney in question packed it off in his briefcase. Now, we have two problems. The first and worst is that we don’t have the product to design protection against, and it would be very valuable to persons of questionable intention. Findley continued, “We don’t expect you and your team to do anything about the software problem. You do, however, know the attorney in question.”
Gwen and Mazda looked at each other. “Bill Wisdom” they said in unison.
“Who is that?” asked Findley.
“No,” Findley said, “the lawyer in question is Todd Pytoon. I believe he was a client or an associate of yours at some point in time.”
Gwen’s jaw dropped in utter amazement. “I can’t believe that Todd could have anything to do with something like that. He is a good enough general law practitioner, but corporate law and intellectual property are not topics that come to mind when we talk about Todd.”
“Well, here is a letter from him,” said Findley, as he slid it across the table.
Gwen read the letter. Whoever the author was had written the letter to Findley and to no one else. “Who else has seen this letter or has a copy of it?”
“To my knowledge, you and I, for myself and on behalf of the company, are the only people other than Mr. Pytoon and those with whom he has shared it.”
Gwen continued reading the letter. There was no demand for money or anything else. It did not seem to be motivated by treachery. Apparently, Todd, if in fact it was, had attended a meeting with some of the directors of the company. He expressed a concern over security of the property. He was concerned that the General Counsel’s office was not adequately safeguarding it and had not instituted access procedures for the company’s staff.
Gwen looked up from the letter at Findley. “Tell me again, Findley, who my client will be?”
Findley laughed, “Well, Miss Gwen, I think you already have a client, having read that letter, and having interviewed me regarding the difficulties at Twedle & Twedle.” Findley laughed again.
Gwen felt a chill as the cute little fat man across the conference table from her transmogrified from cherubic to demonic. “I am sorry, Mr. Findley, but I have not agreed to accept you or Twedle & Twedle, Inc. as a client. There is no contract. There has been no payment of fees, and there is no attorney-client relationship.”
“Ah! My good woman, it is truly a shame that in the early dawn of our professional affiliation you have elected to identify a terminus, as it were, of what could have been a beautiful relationship. So be it.” Findley stood up and turned toward the door and said, “Please call me Findley, and please remember your duties of confidentiality to both me and my company. And please be advised that we intend to assert and instruct you that we insist upon the assertion of all privileges.” With that, he was out of the door.
“What the heck was that all about?” asked Mazda. She got up and went to the door and looked at the lobby. No one was there.
“I don’t have a clue, but I intend to find out.”
“Let’s go get some lunch,” Mazda said.
As they exited the courthouse, Gwen’s cell phone began playing “Another Brick in the Wall.” She recalled that the reception in the library was nonexistent as she retrieved the voice message signaled by the song. It was Todd Pytoon. His message was short and panicked. “Gwen, this is Todd. I need to talk to you right away. Please don’t see or talk to anyone before we talk, especially not to anyone named Findley. Call me as soon as you can on my cell phone.”
The Blue Norther never looked better. She was completely refitted following the preemptive sinking during the “visit” by Bill Wisdom/Yul Taktime. The 47-foot Grand Banks Europa that Tidy had converted for use as an office and home had been certified seaworthy and could go just about anywhere in the world where there was water and no ice. Gwen, Tidy, and Mazda were in their newly appointed office waiting to hear from Todd Pytoon.
Tidy was still working with Tyler Toozer on the leads they found after the “visit” when Gwen had her “encounter” with Findley Findley. After Gwen recapped the meeting with Findley, Tidy asked, “Does someone’s coming into your office and dropping a load of information on you make him your client?”
“Not necessarily,” answered Gwen, “but there is something more afoot than that issue. For some reason, Findley wants to isolate Todd from us. He made some pretty serious allegations.”
Tidy nodded in agreement. “With the little knowledge I have about data security and access issues, I know full well that some folks can get a little testy when you mess about with their software.”
Gwen and Mazda looked at Tidy’s newly installed array of four, 20-inch LCD panels and said, “Right, Tidy, just a little knowledge.”
“Well, it’s fairly clear to me that Findley thinks he established an attorney-client relationship with you by sharing private corporate information, but his actions are certainly suspect,” Tidy said.
“What do you mean?” asked Mazda.
“Tidy is right,” Gwen said. “The letter supposedly written by Todd suggests misconduct on the part of Findley, acting as General Counsel for Twedle & Twedle. If this is so, there may not be any privilege or confidentiality between us and Findley.” Gwen explained that a client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications to a lawyer so that she can provide professional legal services to the client. “The general rule is trumped by an exception that actually came up during the Ford and Bethesda Chase mess.”
Tidy snapped her fingers and said, “Of course! The thing about crimes and fraud and such. You can’t use the attorney-client privilege in the furtherance of a crime.”
“Right-oh, my diminutive friend,” Gwen said, “although in that case we never really got down to applying it.”
Gwen was pacing, albeit no more than three passes, in her usual fashion when she was struggling with an important issue. She was addressing Tidy and Mazda, but more thinking out loud than anything else. “If the services of the lawyer were sought to assist anyone in the commission or planning of what the client knew or should have known would amount to a crime or fraud, then the attorney-client privilege can be defeated. It’s called the crime/fraud exception. It comes into play when a prospective client, such as Findley Findley, hires an attorney to make a false statement or statements of material fact or law to a third person or the court for personal advantage. The question is what does Findley want with me?”
Tidy said, “If Findley is your client, and you represent him personally or as General Counsel, you would have an obligation to tell him whatever you learn from Todd. Maybe he thinks he can use the relationship to discover whatever Todd discloses to you. I mean, he knows you’re going to talk to Todd. Right?”
“Maybe,” said Gwen, “but all Todd has said so far is ‘Don’t talk to Findley.’ The burden of proving a privilege is on the party claiming the privilege. The burden of establishing the crime/fraud exception to the attorney-client privilege is on the party seeking discovery of the communications. At this point, I don’t really know anything that would be discoverable. The letter that Findley showed me has been seen by him as General Counsel and I guess by Todd, who is the alleged author.”
Mazda said, “I love it when she talks like that! Alleged! Here’s a question for you: If Findley is General Counsel, doesn’t he have a duty to bring that letter to the attention of the board of directors?”
Gwen and Tidy looked at Mazda. “That’s right, Mazda, he does, and I suppose he has,” Gwen answered as she flipped open a yellow legal pad. “Here is what he said at the meeting when I asked him about the letter and who had seen it: ‘To my knowledge, you and I, for myself and on behalf of the company, are the only people other than Mr. Pytoon. . . .’”
“Well,” said Tidy, “you won’t be violating any confidences by showing Todd a letter that he in fact wrote, or by discussing it with him.”
“We need to back up a little,” said Gwen. “First and foremost, if I did represent Findley, or Twedle whoever, I don’t any more. Not only did I tell Findley that I don’t represent him or his company, but I also followed up with a letter of termination. Listen, we all know Todd, and we all know he didn’t rip off a company he was representing. He discovered something and sent his concerns up through corporate channels in a letter written on his letterhead and apparently signed by him. Somehow, Findley knew we would be contacted by Todd, and he beat him to us. We don’t really know whether Todd has possession of this property or not. He just expressed a concern about security.”
Tidy placed praying hands under her chin and said, “You know, ladies, I have heard about software and design schemes that are supposed to be able to break into any encryption, and they are, for the most part, nothing more than scams. What if this product of which Mr. Findley is so protective is bogus? What if this lack of security is because there is nothing to secure?”
“Tidy, are you suggesting that Mr. Findley has created an imaginary genie in a bottle?” Gwen asked.
Gwen, Tidy, and Mazda heard footsteps on the deck above them. They turned in unison to the four, 20-inch LCD panels and breathed a sigh of relief.
“Hi, guys!” Todd said, as he descended through the gangway.
“Wow!” Todd said when he saw himself on all four of the screens. “Looks great, Tidy. When are we going to the Bahamas?”
Gwen said, “Seems the Toddster has a desire to be out of the country.”
Todd eased into one of the office chairs, “I was afraid you would be contacted by Findley Findley before I could talk to you, and no I don’t want to leave the country!”
“So what’s the deal?” Tidy asked.
Todd brought them up to speed. He represented one of the directors of Twedle & Twedle, Inc. He got a call from his client who asked him to come to a quarterly meeting of the directors. His client introduced him to the Board and the officers as his personal attorney who was representing him in connection with a potential conflict with another director (who remained undisclosed) one of the officers, and none other than Findley Findley, General Counsel for the Corporation. Several of the twelve directors that were present objected to Todd’s attending the meeting. The Chairman of the Board decided that Todd could attend only to the extent that his client was either presenting his issues or responding to questions concerning the issues. With that said, Todd’s client gave each of the officers and directors the letter that Findley Findley had shown to Gwen. Todd described what could only have been panic as Findley Findley left the meeting screaming obscenities at Todd’s client. The Chairman wanted to adjourn, but all of the directors insisted that they continue.
“I guess that’s when Findley Findley came to our office,” said Gwen, “but why? What led him to us?”
“That’s a really good question,” said Todd. “As you now know, the company is in the software business and makes security products for banks and securities companies. They also do some government work and, to a small extent, research for the Department of Defense. Now, I didn’t know this until right before I called you the other day, but my client told one of the other directors that he hired me because of my association with Gwen and her association with Tidy. As you might guess, these guys network with IT types all over the world. Seems Tidy has got something of a legendary rep in the IT security field.”
“Tidy, you little devil!” said Mazda.
“So what’s the beef, Todd?” Tidy was doubtful that she was as big of a deal as some apparently thought.
“Well,” said Todd, “therein lies the problem. We don’t really know — and there are some things I can’t tell you until we are sure I won’t be breaching a confidence. I have asked my client to meet with us once we are sure who represents whom and whether there are client confidences with corporate clients.”
Todd continued, “After the General Counsel walked out of the meeting, the Board voted to hire independent counsel to represent the company. I don’t represent anyone other than the Director that hired me. The software Findley told you about is for real. One of the technicians in the security labs reported to Findley that there were tapes missing from the vault. Nothing happened, so he told the same story to the VP of R&D.”
“Why did the Tech tell Findley?” asked Tidy.
“Findley is General Counsel and is also an Executive Vice President. He is in charge of security for the company. The Tech went straight to him because he didn’t know who, if anyone, in the lab might be involved, including his boss.”
Mazda said, “What made him think something was missing?”
“Good question,” said Todd. “The technician works in the highest security lab in the company. Their research and work product is kept in a vault in the lab. It’s not really part of his job, but everyday that he works he counts the number of items in the vault at the beginning and end of his shift. The vault is open during the work day, and this is his way of making sure nothing gets left on a desk. But here is an interesting point. He did not know what was missing and knew nothing about the software that Findley described to you. As a matter of fact, you all know more about what the so-called secret software supposedly does than I do or my client does.”
“So what happened after he told the R&D guy?” asked Gwen.
“Nothing!” Todd went on with his story. “Guys, no one even told him not to worry, or that it had been moved, or sold, or destroyed. Absolutely nothing! So he told his father-in-law, who also happens to be a director, who also happens to be my client.”
Tidy added, “And you and the director went to the meeting to let them know that a security issue had been raised but was apparently not addressed by the head of security and the Vice President of R&D.”
“Yeah.” said Todd. “That’s all it was about to start with, and now who knows what will happen next!”
“So, Todd, what did you do with the software?” Tidy was on her feet, arms folded and staring intensely at Todd.
“What do you mean?” asked Todd.
Gwen said, “Findley says you were hired by the corporation and ‘packed off’ the software in your brief case.”
“That’s ridiculous,” Todd said emphatically. “I was in the corporate offices at Twedle one time, and that was with my client. No way do I represent the corporation, and no way do I have any software! I don’t even know what it looks like!”
“Has this director paid you anything in the way of a fee?” asked Gwen.
“Sure, I got a retainer from him for $3000 and a client contract. He wired it into my account from his office on his laptop. I confirmed the deposit.” said Todd.
Tidy sat down at the console housing her systems. “Where do you bank, Todd?” She typed in the name and pulled up a login page. Todd entered his pin number, and the account appeared on all four screens. The last deposit was for $3000. Tidy clicked the detail link and the next page opened. Todd turned white with shock. The wire was from Twedle & Twedle, Inc.
“I wasn’t hired by Twedle,” said Todd. He sat quietly in front of the screen, staring at the wire confirmation. He knew what the next question was before Gwen asked it. Every article he had read for the past seven years dealing with the ethics of the attorney-client relationship insisted upon the same two things. Write a letter of representation, and send a letter terminating representation when it is appropriate.
“Well . . .,” Gwen thought, “Todd, Todd, Todd, what is the deal with you! There is always your attorney-client engagement letter.” Gwen put her hand on Todd’s shoulder.
“No letter,” said Todd. “I was going to send him a contract, but I haven’t been back to the office since the meeting with the board of directors.” Todd felt Gwen’s hand slip from his shoulder as she moved to the other side of the cabin. He shook his head silently, knowing that he had messed up. Again. As it stood, he appeared to be representing the corporation. The letter he wrote was requested by his client and was intended to document the concern he had for the security issues. Otherwise, there were only the meeting in the director’s office, attending the board of director’s meeting with his client, and the payment.
“Why would Findley want us to believe that you were representing the company?” Tidy was thinking aloud and not really trying to engage Todd in a conversation. “More to the point,” Tidy continued, “why would your client want it to appear that you were not his attorney but the corporation’s?”
Mazda piped in, “None of those guys owns the software. It belongs to the corporation. If Todd represented one of them personally and took the software, the focus of any investigation would be on him.”
Tidy said, “Good thinking, Mazda! The question is still why they would want to do that.”
“All good questions,” said Gwen. “Let’s look at what we know. Twedle & Twedle have super-secret software that could be potentially harmful in the wrong hands.”
Tidy interrupted her, “We don’t know that. What we do know is that no one in this room, and that includes Todd, has ever seen it. We know that Findley is saying Todd, in the interest of protecting the company, has taken the software. We know that Todd’s client introduced him to the board as his personal attorney and was permitted to attend the meeting only to the extent the director was presenting his personal issues.”
Todd put up his hand as though to say stop. “I was not in the board room before my client had gotten permission for me to attend. The board had been in session for about forty-five minutes before Findley escorted me into the meeting. That’s when I passed the letter to the members, and Findley made his dramatic exit.”
Mazda looked up from her legal pad and said, “Gee, seems everything we know we don’t know. I have attended lots of meetings with all kinds of boards, and there is usually a record of some sort that is made of the proceedings.”
Gwen asked Todd if he had any pending work that he was doing for anyone connected to the corporation.
“No,” Todd answered. “Not a thing. I was asked to draft the letter of concern and attend the meeting. I presented the letter, and before I could say or do anything else, Findley and everyone else went nuts. The chairman got the meeting under control and asked me to step out for a moment. Then, my client came out and told me they were discussing retaining independent counsel, thanked me, and said I could go. That’s when I called you.”
“Todd, did you have a brief case, file folder, or anything like that with you?”
Todd looked at Tidy and wondered what she was thinking. “I had my brown leather briefcase, Tidy. I take it with me everywhere I go.”
Tidy asked Todd if he had it with him. He went out to his car and returned with a simple leather briefcase with a shoulder strap, no outside pockets, and three dividers inside. Todd placed the briefcase on the desk, and the four of them gathered around it as though it were center stage, the grail, the most important thing in their lives.
Before anyone touched the bag Tidy asked, “Was this ever out of your sight while you were at Twedle?”
“No, in fact it was on my shoulder when I went into the meeting. The letter was in the bag, and I opened it, took out the letter, and then closed the bag. I haven’t opened it since.”
Tidy pulled a box from one of the deep file drawers in their community desk. She opened the box and removed a pair of surgical gloves. She then examined the bag carefully. She opened the flap and began carefully working her way through each of the inside dividers. And then she saw a sparkle of light reflecting from the face of an unlabeled CD. She asked Todd what it was.
“Gosh,” Todd said, “it could be just about anything. I use CDs instead of floppy discs because they hold more data.”
Tidy removed the CD and held it sideways below the desk lamp. She saw the telltale coloration on the disc that meant it was not blank. “Something is on this disc, Todd, and we need to find out what.”
Todd pointed to the multi-screen array powered by Tidy’s computer and said, “Let’s run it and see what’s there.”
“No way, grasshopper.” As Tidy reached for her attaché and removed a laptop computer, she explained, “I am not about to risk the mainframe, but I can live with losing a laptop if it comes to that.” She booted up the laptop and opened the CD carrier. As it slid into the computer, the screen went blank. They listened to the mechanical sounds as the disc began to spin. A bright blue spiral configuration appeared on the screen as the laptop’s tiny speakers came to life.
“Oh! I just love that song,” Mazda said as Pink Floyd worked through the intro to “Another Brick in the Wall.”
Tidy frowned. With folded arms and one hand under her chin, she studied the computer. Finally, she said, “Todd, I need a copy of this disc right away."
Todd asked, “What the heck is a brick in the wall?” Tidy had just ejected the CD and was about to remove it from the disc carrier.
“Tell us you’re kidding!” Mazda said as she slapped Todd’s hand.
Tidy exclaimed, “Pink Floyd, The Wall, 1979, come on, Todd, enough already!”
“I think he’s serious,” said Gwen.
“Gwen, I don’t know Pink Floyd or that song or how it got on that disc. I was six years old in 1979, and all we listened to was ‘Peter and the Wolf’ and classical music. I have discs that look like that but none that have music on them.”
Tidy was instantly on her cell phone. “Sukhwinder,” she said into the cell phone. Tidy glanced at Gwen and said, “Voice dial.” Tidy waited a moment for the connection, and her call was quickly answered. “Sukhwinder, my friend, I need your help. I have a hot CD I need to crack pretty quick. We are on the Blue Norther at the marina. Twenty minutes is good. Thanks.” She flipped the phone and it closed with a snap. “Sukhwinder Kamat is a friend of mine. We went to school together in India. He is a data recovery genius and will be able to tell us what, if anything else, is on this disc.” Tidy lifted the disc from the carrier and put it in a jewel case.
Tidy asked Todd to outline all of his comings and goings for the week before the meeting at Twedle & Twedle, particularly those where he had his brief case with him. She wanted to know if anyone had loaned him any CDs, had any with them when they met, had given him any papers or files that the disc could have been in, and whether he had visited anyone that had teenage children. Todd was no help at all. He didn’t have a clue or a suspicion of where the disc could have come from, or how it got into his brief case. Tidy then ruled out Gwen or Mazda as a possible source.
Gwen and Mazda were startled by a roaring sound that began faintly and escalated to a crescendo in seconds. As the noise reached its peak, the Blue Norther began moving, buffeted by a strong wind. The Sikorsky S-76C++ Helicopter landed in the parking lot adjacent to Tidy’s boat, no more than 100 feet from the edge of the water. As the massive rotors wound down and the engines quieted, a stairway unfolded onto the pavement. Gwen and Mazda gawked at the huge helicopter. Sukhwinder Kamat descended the stairway and moments later was on the Blue Norther.
Tidy and Sukhwinder greeted each other with bows and handshakes first and then hugs and kisses. “Oh my, Tidy Tidy,” said Sukhwinder. “You are looking more wonderful than ever before!”
“Thank you my dear friend,” said Tidy. She introduced Sukhwinder to Gwen, Mazda, and Todd. Mazda was struck dumb by the incredible good looks of Sukhwinder. He was almost Mazda’s height, and would be if she wore sandals. He wore a traditional Sherwani embroidered with gold detailing of designs and figures from India.
Mazda managed to say, “Mr. uh, Sukh . . ., uh Kamat, do you think your pilot would like a Coke?”
“Inasmuch as I have no pilot, my dear Mazda, I would very much enjoy a Coke. And Mazda . . .”
“Yes?” she replied.
“You may call me Jeff. Now, Tidy where is the hot CD?”
Sukhwinder Kamat a/k/a Jeff sat at Tidy’s multi-screen computer. He removed three CDs from an inside pocket and loaded them into the computer. Tidy handed him the disc that she had found in Todd’s briefcase, and Jeff loaded it into a fourth CD drive. As the machines hummed he said, “So what are we looking for?”
Tidy explained that none of them really knew, but it may contain something from Twedle & Twedle.
Jeff stopped short of what he was doing and said, “Twedle & Twedle? They owe me money! I have done work for them and have yet to be paid! I hired a lawyer to sue them and was told their net worth was insufficient to permit a recovery! They owe me money!”
Pink Floyd began playing through the reference speaker system of Tidy’s computer. No sooner had it started than the array of LCD monitors blinked once, the music stopped, and the screens filled with encrypted data strings that cycled through page after page at an amazing speed.
“They owe me money! And now they take my Substrate Security Algorithm and bootstrap their silly junk in my miracle!”
Mazda put her hand on Jeff’s shoulder and said, “Oh my, you poor man!”
“Watch this, Tidy,” Jeff said as he typed in J E F F. The scrolling pages stopped immediately, and a logo appeared that said “Property of SK Enterprises.” “That is what we have here -- my miracle and their junk!”
Mazda reassuringly continued to keep her hand on Jeff’s shoulder as he explained his Substrate Security Algorithm. A common garden variety CD will hold about 700 megabytes of data. Jeff had devised a way to append data to the data substrate, or more simply the actual magnetic imprint on the disc. So for each byte of data on the disc he could add data stacked under it by attenuating the strength of subsequent magnetic imprints and alternating their polarity. The 700-megabyte CD would now hold as much as 700 gigabytes of data. Twedle & Twedle had hired him to format a disc for them to hold additional data strings that were supposedly able to break data encryptions. Jeff laughed at this point and said, “I did exactly what they asked but refused to give them the access codes until they paid me my money. They never paid me. Anyway, this is the stuff on the disc, and it isn’t anything other than stacks and stacks of old machine language that they had loaded onto tapes to test my algorithm. Without the access codes, all you would be able to see on the disc is that song you heard because everything else is under it. Way under it!
“Why would they do that?” asked Gwen.
“I think they went broke trying to finish a private contract and needed an excuse or someone to blame.”
Gwen said, “Todd, someone at Twedle slipped this into your briefcase when you were there. It had to have been the director or Findley Findley.”
“The stuff on the tapes that Jeff was talking about must be what the technician saw, and once it was transferred, the tapes were no longer needed. Whoever is behind this had everyone convinced that the tapes held some super secret killer program when all of it was just junk.” Todd shook his head in disbelief. They saw him coming a mile away and set him up to take a fall, probably for a phony insurance claim.
Jeff said, “Todd, as you are befriended by my good friend Tidy and her friends Gwen and Mazda, I too am your friend and will help you. I have information in my office regarding who underwrites their insurance, and I will give this information to Gwen. Perhaps we can ‘head them off at the pass’ as the cowboys say, yes?”
Mazda, still clutching Jeff’s shoulder half whispered, “Oh my goodness! Will you take me for a ride in your helicopter?”
As the Blue Norther settled into its slip, Jeff and Mazda were already a mile from the marina, destination unknown, aboard the Sikorsky. Gwen, Tidy and Todd began the task of determining what to do next.
“If this is really an insurance fraud for the loss of this so-called code breaker software, then Todd will be involved on a number of levels.” Tidy had quite a bit of experience with insurance fraud cases. She had worked as an investigator for most of the major insurance companies in the world and had, from time to time, represented the party making the claim. “First will be law enforcement. Twedle & Twedle will almost certainly involve them in the case, and very soon. Otherwise, their insurance claim will have very little credibility.”
“It’s probably a safe bet that the insurance carrier will want to talk to Todd.”
“That’s something of an understatement, Gwen. I suspect they will want to keelhaul him,” said Tidy.
“And then there will be the State Bar Grievance Committee,” added Gwen.
“Not again!” moaned Todd. “What for this time?”
Gwen gave Todd the chapter and verse. “It is more likely than not that your “putative” — don’t you just love that word — client will file a complaint against you — if not as a bona fide grievance, certainly to appear consistent in their efforts against the insurance carrier. I imagine they will claim a breach of your fiduciary duties under common law, as well as theft or conversion. Under the Disciplinary Rules of Professional Conduct, they will claim a failure to safeguard their property; commission of a serious crime; engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; conflict of interest; incompetence; and undertaking representation of a client that is beyond your ability — just to name a few,” said Gwen.
“I think our biggest concern right now is keeping Todd out of jail.” Tidy thumbed through her Day Timer looking at the phone directory. “Gwen do you have a recent number for, Tyler Toozer?”
“Yes,” answered Gwen, “and I think we ought to give Jack Easter a call as well. We probably don’t want to represent Todd because, more likely than not, we will be witnesses in whatever comes up as a result of the Twedle & Twedle scam.”
Todd said, “What do you think we should do with the disc they planted in my brief case?”
“What disc,” asked Gwen?
“Yeah, what disc?” asked Tidy.
Todd looked from Gwen to Tidy and frowned, “Okay, what the heck does that mean?”
“Listen, Todd. Jeff has the disc. It’s his property. He hasn’t been paid, and it doesn’t look like Twedle &Twedle have any intention or ability to pay him. You didn’t take anything from them and aren’t in possession of anything that was taken from them. Furthermore, if the disc were returned to them, they would only have a copy of a Pink Floyd song. You heard Jeff; no one can get into the substrate without his key.”
Gwen poured a soft drink into a glass of ice, “Todd, Tidy and I decided this was best for you and us. At this point, Twedle doesn’t know that you know the disc was put into your brief case. Anyone looking for it will no doubt have been dispatched by Twedle and will only have their word that anything was taken from their offices.”
Tidy put down the phone and said, “I haven’t been able to contact Tyler, but Jack Easter is on board and said to call him the instant Todd is taken into custody.”
The trio heard a knock on the hatch. “Good afternoon — hello?” a voice said from above.
Tidy asked if she could help.
A fairly large man in a black battle dress uniform came down the stair well. “Good day, ladies . . . sir. I am Lieutenant Edwidge Boaz of US Customs Enforcement. I have a writ of sequestration from the Federal District Court, and I have been ordered to take possession of this craft and all of its contents. Kindly please leave the premises at this time and take nothing with you on your way out.”
“Uh, excuse me inspector, but I happen to live here — as ‘in, this is my home.’” Tidy was not a happy camper.
“In addition, this also happens to be my law office and contains numerous papers that are subject to attorney-client privilege, and I am not about to leave them in the possession of anyone without a hearing.” As she was saying this, Gwen was quickly reviewing the writ, and Tidy was calling Jack Easter.
“I don’t know anything about those issues, ladies. I have a writ to serve, and I intend to do exactly what the court’s order states.”
Gwen finished reading the writ. Tidy advised her that Jack was on the way down to the marina. Gwen addressed the officer. “I have no quarrel with you performing your duty, particularly duties directed by a court. A couple of things, though, if you don’t mind, officer. I would like to see some identification. Furthermore, this writ is not under seal and is issued by a federal district court out of this state, in a different time zone, and that by my reckoning is already closed for the day. Additionally, this writ is not directed to me, and it is not directed to Thaidra Bohles, who is the owner of the Blue Norther. The writ is only directed to Todd Pytoon and his premises and the contents. There stands Mr. Todd Pytoon, but these are not his premises, and these are not his contents. By the way, where is your identification? I asked for it, and I am entitled to see it.”
Tidy said, “With the court closed, we don’t even know if the bond for this writ is any good.”
Lieutenant Edwidge Boaz said, “I was instructed to come here and take possession of this boat and its contents, and . . . .”
“Who instructed you?” demanded Gwen. “And please show me some identification.”
“ . . . And I was to treat the premises as a crime scene.”
Gwen was outraged, “What are you talking about? This writ is issued in a civil matter filed by TNT Enterprises with an address in Toronto, Canada. A crime scene? I am not buying this at all. Let me see your identification, now.”
He put his hand into his pocket and said to his empty palm, “I must have left it in the truck. I’ll be right back.” The black uniform turned heel and went up the stairway, onto the deck, and into the parking lot. As he bolted off the boat, he brushed passed Jack Easter, who was stepping over the toe rail and onto the deck. They peremptorily greeted each other, and as Jack was descending into the cabin, he heard a truck engine starting and then tires squealing.
Gwen was on her way to the deck of the Blue Norther as Jack Easter was descending. She smiled at him as she squeezed herself between Jack and the rail and raced to the top. As she cleared the hatch, she was able to see the truck being driven by Lieutenant Edwidge Boaz of US Customs Enforcement. She still had the “writ” in her hand. The truck was definitely not a law enforcement vehicle. The circa 1990 GMC Sierra was pale green and had a paper dealer tag on the back. Gwen was unable to make out any of the numbers on the temporary tag. The truck and the duty-bound law enforcement official disappeared into the city.
Gwen stepped back into the Blue Norther. “Well it’s pretty obvious that Boaz was a phony, but I don’t get it,” said Gwen. “Why would someone send a fake officer to get the disc?”
Todd chimed in, “Yeah, he scared the daylights out of me. And for the record, I have never heard of TNT Enterprises let alone worked for or represented a Canadian client!”
Jack stood in amazement trying to follow the events of the past fifteen minutes. After the dust settled, Gwen, Tidy, and Todd brought him up to speed. “Gwen has got a good point,” Jack noted as he pondered the facts presented by the trio.
“Twedle would have no reason to impersonate an officer to recover a worthless disc they planted in Todd’s brief case. If they were going to say he stole it from them, they could just call the police and report the theft, which they most certainly would have to do to make an insurance claim,” Jack said. “But I have an idea who might want to.”
“You and me both,” Tidy said as she sat down and reorganized the facts for the group. “We have a company that is on the ropes because they contracted to produce software that could break into any encrypted data system in the world. Somebody paid them a ton of money to either develop it or as an investor in the company.”
“On the day of reckoning, they had a product that not only didn’t work but was just a bunch of machine language trash. Enter Sukhwinder Kamat. Twedle hired him to format a disc so that it could hold a tremendous amount of data. He was never paid, and when he tried to recover from them, he learned they had no assets with which to pay him.”
“Enter Todd.” Todd sat up straight and smiled. Tidy continued, “Findley Findley needed a patsy.” Todd slumped in his chair and frowned. “Sorry, Todd. He set Todd up to be the fall guy and the basis for an insurance claim. I suspect Findley Findley has cleaned the company out and needs a product that everyone will say worked and was worth millions but can’t be proven because it was moved to one of Jeff’s super discs which was then stolen by Todd.”
“So, brain trust, who do you think might want to get their hands on a worthless disc?” asked Tidy.
Gwen said, “Someone who doesn’t know it’s worthless.”
Jack added, “And someone who stands to lose a great deal of money.”
Tidy jumped up to her full slightly less than five feet and said, “Or someone who is afraid they will lose an insurance claim if it can be proven that the disc is worthless! As in Jeff, who has the only key to actually see what is on the disc.” Tidy flipped open her cell phone, “Sukhwinder,” she said into the phone.
“Jeff, Tidy here, where are you?”
“Hello again, Tidy,” said Jeff. “The beautiful Miss Mazda and I have arrived at my office, soon to depart for heretofore undisclosed locations.”
“Listen, Jeff,” Tidy was clearly anxious, “Right after you left a truck pulled into the parking lot and someone pretending to be a law enforcement agent tried to con us into turning over the Blue Norther. “
“Sounds like something is stuck in someone’s craw,” said Jeff.
Tidy told Jeff that he should be very careful as the “someone” to whom he referred probably wants to get rid of the disc and anyone who knows what is actually on it. “Somehow the people who hired this guy know that we had the disc and now know that we have been visited by you.”
“No question about that,” said Jeff. “We saw a truck pull up as we were leaving, and a guy dressed in black jumped out and looked right up into the blade wash. I told Mazda he would be lucky to have any eyes left unless he was wearing eye protection.”
“That’s our boy,” said Tidy. “Just be careful, Jeff. You and your helicopter are well known around here.”
Gwen asked, “Do you think anyone besides us knows that Jeff has the disc?”
“Unfortunately,” answered Tidy, “if they have half a brain, they would know there was no reason for us to keep it once Jeff was involved with us. I can only guess that they would have had no earthly reason to believe that Jeff was in any way connected with me or you, Gwen. It was really just a coincidence that I called a consultant that I have worked with in the past, and he turned out to be the creator of the disc. At that point, anyone with less than half a brain could easily surmise that the cat was out of the bag.”
Jack returned from the upper deck and was folding his cell phone. “I have lined up security for the rest of the day and night through a client of mine that owns a private agency. They will be here shortly.”
“Thanks, Jack,” said Gwen. Gwen spent the next hour getting as much information as possible from Todd about Twedle & Twedle. Tidy did the same except on the Internet. The most alarming bit of news was that some of the major stockholders were Middle Eastern IT concerns. There was nothing to suggest that they were involved in the visit by “Lt. Boaz,” but for the time being it was the best guess.
Gwen looked at her watch and said, “I am going to try Tyler Toozer again,” and opened her phone.
Tyler Toozer answered, but Gwen had a hard time understanding him. “Can’t talk now, Gwen. I’m on first response for a pretty bad helicopter crash. Looks like a big Sikorsky was blown out of the sky. Call you later.” Tyler disconnected.
Gwen looked at Tidy with tears in her eyes. Tidy’s breath caught in her chest and her expression said, “What?"
“There’s been an accident or an attack or something involving a helicopter.” The silence in response said it all. “Tyler is on his way there right now. He said it blew up in the sky, a big Sikorsky.”
Tidy sat at her desk and whispered through clenched fist. “I should not have involved Jeff in this case.”
Jack Easter put his hand on her shoulder and said, “Come now, Tidy. First off, we don’t know it is Jeff or his helicopter. When you called him it was a reasonable thing to do. He is an expert after all, and you needed his help. There is no way you could have known that he actually worked for Twedle.”
Tidy nodded, “I know Jack, but if it is Jeff’s helicopter, then we are all at risk as well. I think the time has come for us to relocate at least for the next few hours.” Tidy continued, “Suppose whoever is involved in the destruction of an aircraft is bent on destroying boats as well.”
“I agree,” said Todd.
“Makes sense to me,” added Gwen.
Jack has a rather large office in his home that was completely equipped with everything they would need to continue working on the case. He convinced them all to come home with him. Jack, Gwen, Tidy, and Todd grabbed what they could and loaded into Jack’s Range Rover. They discussed the events of the day as they climbed the hills north of the city and the marina.
Tidy looked down at the coastline and could see the marina as it disappeared in the distance. Her reverie was broken by the sound of a cell phone ringing. They all reached simultaneously. It was Gwen’s phone, and Tyler was on the other end.
“What a mess,” Tyler said. “We have a helicopter crash, and it’s still too hot to get close to.”
Tidy said, “Put it on the speaker phone.”
Tyler crackled through the tiny speaker, “By the way, is Tidy there?”
“Yes. I’m here, Tyler,” she said as she leaned as close to the phone as she could get.
“Good,” said Tyler, “There is someone here who wants to speak to you.”
They heard voices in the background and then the signal was monetarily lost as Jack rounded a switchback. “. . . Mazda and I are feeling chipper as ever, my Dear friends.”
Tidy said, “Jeff, is that you?”
“Of course it is! Who else could sound like me?” Jeff laughed into the phone at the joke he made about his own accent. Jack pulled over to the side of the road when the signal seemed strongest. Jeff explained that it was, in fact, his Sikorsky that had been shot down. Jeff and Mazda had departed for his office where his heliport was maintained. It was located about thirty miles down the coastline. On the way, Jeff decided to stop at his plant to drop off Mazda. Mazda was then to be taken by Jeff’s chauffer to her apartment to prepare for their weekend trip.
When Mazda and Jeff arrived at his plant, they were immediately met by Jeff’s head of security. He explained that an individual had been apprehended by the local police near the plant.
“When they searched his car, they found a RBR-90 mm M79 ‘OSA’ which is a light, effective anti-tank weapon rocket launcher that can be used by a single person. When the police questioned him further, he denied any knowledge of the unit or its intended use. The police notified me because the man was apprehended on the side of the hill that overlooks the landing pad. If you had arrived an hour ago, you would have flown right over his head.”
Jeff said that he explained to his chief of security that he had seen someone at the marina that was directly underneath his craft.
“What happened to your helicopter?” asked Tidy.
“We didn’t want to take any chances on the trip to the office so we flew the chopper over there in “Drone Mode.”
Gwen said, “I didn’t know there was such a thing.”
“There isn’t!” said Jeff. “I invented it, and my Sikorsky is the only one in existence. I just tell the computer where I want it to go, and it does the rest. It even calls in a flight plan and converses with FAA.”
Tyler got back on the line. “Jeff and his security people flew a parallel course inland while the Sikorsky was out over the water. They called the whole thing in to the FBI as well as Homeland Security. When the Sikorsky was hit, the FEDS were on the shooters in seconds. Fortunately, no one was hurt, except for a very intelligent helicopter.
Tidy asked, “Who was it that did this, Jeff . . . Tyler?”
“The most unlikely person you can imagine and six goons that looked like rejects from a defunct security company. The leader was actually a lawyer! Can you believe it?”
Gwen and Tidy exchanged grins. “His name wasn’t Findley by any chance?”
Jeff got back on the cell phone. “I don’t guess I will ever get paid now. My very good friend Tyler Toozer . . . ”
They all heard Jeff put his hand over the phone and say, “And people make fun of my name, hah!”
“. . . is going to escort us to my home because he is still concerned that someone may wish me considerably less than well.”
Gwen told Jeff and Tyler that they were on their way to Jack Easter’s house because it was a relatively unknown location, even to them, and it would give the dust a chance to settle before taking the next step, whatever that may prove to be. One piece of the puzzle was still evading them. For whom was Findley Findley working?
Mazda was floating on air as she walked into the office aboard the Blue Norther. Now that the ruckus over the phony software was resolved, business was back to routine in the law offices of Gwendolyn Gewürztraminer. Part of that business was Mazda’s engagement to Jeff. The rest of it was a new client Gwen was representing.
Chip Pótel had been practicing law for seventeen years. Last year, he was retained by Mandy Tuberious, who was looking for an attorney to represent her in a divorce case. Chip agreed to represent Mandy, and they signed a contract for legal services. At some point, the professional relationship deteriorated, and Mandy fired Chip and got a new lawyer.
Mandy filed a grievance against Chip, and the grievance committee took it to trial. Chip represented himself throughout the process. When a judgment was entered that he had violated a number of the Disciplinary Rules, Chip hired Gwen to advise him about whether he should appeal. Gwen, Todd, and Mazda were meeting with him in about an hour. Gwen had already spent several days reviewing the court records and other information Chip had provided her.
Gwen was reviewing Chip’s contract with Mandy when Mazda came in. “Is that on the new client?” Mazda asked.“Yes it is, Mazda. It’s the contract the client signed when Chip was hired.”
Mazda picked up a copy and scanned it with a critical eye. “Not very well done,” she said. “It has a lot of typos, and the English ain’t too good!”
“Tell me about it,” said Gwen. “It looks like Chip got a retainer in the amount of $25,000. This says it’s non-refundable, and he gets $300 per hour paid from the retainer. When it is used up, he can ask for additional non-refundable retainers.”
Mazda said, “I can’t believe the client would agree that none of the legal fee is refundable, even if the case is dropped or dismissed or even settled. Can a lawyer do that?”
“Mazda, that depends on a number of things that we need to discuss with Chip. In some cases, a lawyer can receive a non-refundable retainer, but I am having a hard time fitting this case into that scenario.”
“Hey, Gang!” shouted Todd, which was followed by the sound of his coming down into the office. “Gwen, I think our client just pulled into the parking lot. I’ll wait topside for him and bring him in.”
Chip Pótel was, to say the least, surprised by Gwen’s office. At first, he was a little uncomfortable, but he settled in as the meeting began. He was very nervous as he gave the history of the complaint to Gwen, Todd, and Mazda. “I actually did better in court than I did with the committee,” explained Chip, although he seemed to be bragging. “The committee wanted to suspend me for two years, but the Court’s judgment probates that without any conditions. I need to decide if I want to go ahead and accept that or appeal the judgment.”
Todd asked Chip, “Have you paid any part of the fee back to your client?”
“You bet,” said Chip. “The first thing I did when the suit was filed was write a check for the full amount of the committee’s restitution finding. Whether I owe her a refund, and how much it should be, is really not an issue at this point. The question is whether I violated the Disciplinary Rules.”
“As I understand our role in this, Chip, you want us to advise you whether or not you should appeal the judgment.”
“That’s right, Gwen. I have been representing myself, and that may have been a mistake, but it is where I am now, and I’ll have to live with it. An appeal would have to be handled by lawyers who have that expertise because I don’t.”
“Are you asking us to represent you in an appeal?” asked Todd.
“No, I am asking you for a second opinion. I already have a firm lined up to appeal the judgment, and they are waiting for me to give them the go ahead. Gwen has a great reputation in handling grievance matters, and I suppose I am doing this backwards. I should have contacted her when the complaint was filed. So now, having improved my position by going to trial, I want your firm’s opinion on whether this case merits an appeal.”
Gwen said, “The suit was filed by the committee, and then Chip and the State Bar submitted opposing motions for summary judgment. The Court granted the State Bar’s motion and denied Chip’s motion.”
“That’s right,” said Chip. “I talked to the State Bar’s lawyer, and we agreed that would be a better way to present it rather than a jury trial. I had an agreement with my client that the retainer would not be refunded if she decided she didn’t want to go through with the divorce, and that’s exactly what happened. The State Bar said I violated several rules, but essentially they say I failed to give my client information; collected an unconscionable fee; didn’t tell my client the basis for the fee; and failed to put her money in my trust account. And doggone if the court didn’t agree with them A to Z.”
“And the point is?” asked Gwen.
“Well!” huffed Chip. “The point is that if the fee was non-refundable, then I didn’t have to put it in a trust account, and everything else evaporates around that point.”
Mazda said, “Chip, I’m not a lawyer like you guys, but I’ve been working for lawyers for a long time, and I’ve never seen a contract like the one you had Mandy sign.”
“That was actually the first time I had used that form of a contract. I think I read somewhere that it was easier to keep track of the retainer if it was non-refundable. I work by myself, and if I don’t have to juggle accounts, then that’s a benefit to me.”
“Chip, just because you call a retainer ‘non-refundable,’ doesn’t make it non-refundable,” said Gwen.
The foursome resumed their file review and ordered out for lunch. It was beginning to look like it was going to be a long day with Chip. Chip’s attitude was getting in the way. Gwen knew that she was going to have a “hard sell” convincing Chip of anything he had already made up his mind about. She needed to know a lot more about Chip as a lawyer before she could appropriately advise him.
Gwen and Todd sat on the upper deck of the Blue Norther watching the sun set over the harbor. There was a gentle roll on the deck, created by the wake from various craft returned to their moorings for the evening. The two lawyers sat in silence as sunlight scattered across the horizon, changing colors until the sun dipped beneath the sea.
Max Lemming, the harbor security guard walked by on the dock. “Beauty tonight, Ms. Gwen,” he waved at her.
“Sure is, Max. You have a good night,” said Gwen.
“When is Tidy coming home?” asked Todd.
“Well,” said Gwen, “she is going to be in Athens next week, and then she is off to London. I don’t know what the job is, but it has something to do with a United Nations Contract dispute. So, maybe two or three weeks, I imagine.”
“I’m glad she wasn’t here.”
“You are right on that one, Todd,” Gwen said. “I don’t think she could have handled Mr. Potel.”
They had just concluded a rather long meeting with a lawyer by the name of Chip Potel. Chip had just finished a trial that resulted in a judgment of professional misconduct against him. He wanted Gwen’s opinion on whether he should appeal the summary judgment in the case filed against him by the State Bar Disciplinary Committee.
“What are we going to tell Chip Potel?”
“He certainly has an attitude about him,” said Gwen. “I think we need to give him the straight scoop and hope he buys into it.”
“You mean tell him he has a good case, bad case, or what?”
“No, Todd. This guy has to decide for himself. As much as he claims to respect our work, I don’t see him marching to our drummer.”
“Yeah, I guess so. The damage is already done, even if he thinks he won.”
Gwen retrieved her note pad from the coffee table and clicked on the deck lights. She turned to the last page. “This is what I think we have,” said Gwen. “If a lawyer violates any disciplinary rule, then that violation will support a judgment finding professional misconduct. The Judge in this case relied on all of the violations alleged by the State Bar. Each of the violations is sufficient to support a finding of professional misconduct.”
“Okay, but what does that have to do with whether he should appeal?” asked Todd.
“If Chip appeals, he will have to contend that he did not violate any the disciplinary rules. The Court of Appeals will affirm the trial court’s summary judgment if there is no genuine issue of material fact that Chip violated at least one disciplinary rule.”
“As I see it, his whole case pretty much depends on the fee,” Todd said.
“Perhaps, Todd, but I don’t have enough to make that leap at the moment. There is no question the fee is what triggered the complaint.”
“I had an appeal once where we had summary judgments on both sides, and the court granted one of them. When the Court of Appeals wrote its decision, it said that when both parties move for summary judgment on the same issue, and when the trial court grants one motion and denies the other, the appellate court can render the judgment the trial court should have rendered if the trial court was wrong.”
“That’s right, Todd, and that’s the one thing Chip has going for him. He has no downside if he appeals, except the cost associated with appeal.”
“No downside?” scoffed Todd. “Look who he has lined up to appeal the case! The appeal will cost him more than the retainer he was fighting over in the first place.”
“Well, that’s true, but I don’t think Chip wants to hear that from us,” said Gwen. “There was a State Bar ethics opinion a couple of years ago that said that a retainer is to secure a lawyer’s services, and pay him for the loss of other employment. If the lawyer can prove that other employment will probably be lost by representing the client, then the retainer fee is earned at the time it is paid.”
Todd pondered this for a moment and said, “Well, if it is earned when it is paid, then there is no need to put the money into a trust account.”
“That’s true,” said Gwen, “but Chip seems to think that by calling it ‘nonrefundable’ it somehow becomes an earned retainer, and that is the hole I am trying to bridge. Todd, there is not one single shred of evidence in the summary judgment motion that discusses availability or lost opportunities or anything else that would create a true retainer. Money that is just a prepayment of a fee belongs to the client until the work is done and has to be put into a trust account.”
“If the fee paid up front was non- refundable, then what difference does it make what account it was put into?” Todd asked.
“That’s a good point -- kind of falls into the category of ‘no harm no foul.’” Gwen continued, “But that State Bar ethics opinion says it’s not earned even if it is designated as non-refundable. Todd, that’s the law. He didn’t earn it, and it has to go into a trust account. He didn’t put it into his trust account, and that is a violation.”
“So, what’s the next issue?”
“Doesn’t much matter, Todd. Any violation of the disciplinary rules will support the judgment of professional misconduct. I’m thinking it will be good money after bad if he pursues the appeal. At this point, he would be better off asking for a new trial. Maybe there is evidence that will move this from prepayment to retainer. In any event, he will be here tomorrow, and we can discuss options with him.”
Bright lights came from the direction Max had been walking. Following the bright lights was the rumble of a very large engine. The Shelby Cobra came to a stop under the street lamp on the edge of the dock. Chip Potel climbed out and waved at Gwen and Todd, a folded piece of paper in his hand. He walked to the edge of the dock and declined Gwen’s invitation to join them.
“I just received another complaint alleging trust fund violations,” he said as he held the paper high in the air. “There is no way I can accept this judgment, and I have instructed my appeals guy to proceed. Turn off the clock, Gwen. It was nice meeting you.”
Gwen and Mazda were preparing a letter confirming that Gwen no longer represented Chip Potel according to his instructions to them. He had visited the marina the night before and said he had additional complaints filed against him for not refunding the unused portion of advanced fees. Because of those complaints, he felt he had to proceed with the appeal of the summary judgment in favor of the State Bar.
They both looked up from their screens when Tidy descended the steps from the upper deck to the office. Her body language predicted to both of them that she was “fit to be tied.”
“Good to have you back, Tidy!”
“It’s good to be home, Gwen.” Without another word, Tidy opened her briefcase and locked three files in her fire secure cabinet. “I am so angry I can hardly contain myself,” said Tidy. “It would be best for everyone if I just made myself a martini and sat up on the deck!”
“Is this about the scrap down at the courthouse?”
“That’s right, Mazda. I can’t believe how some of these lawyers get a license and, even with a license, are allowed to set foot in a courtroom. Say, how did you know about that?”
“My cousin, Mercedes, is one of the clerks in Judge Vroom’s court. She called me about an hour ago.”
“What happened?” asked Gwen, looking from Tidy to Mazda and back.
“Well, as you know, I had to come back from Spain early to testify in the WacBat Security case. I was testifying for the defendant as a security expert and was cross examined by this incredible snit. By the way, I bought the beach house in Costa Blanca.”
“Way to go, Tidy! Was he mean to you?” asked Mazda.
“She,” said Tidy, “wasn’t mean to me. This lady of the bar kept asking me questions that began with, ‘So, when did you and your attorney decide to alter the accounts?’ or ‘What did you and your attorney do with the letters that aren’t here today?’” Tidy had her fingers locked in a strangle hold. “She kept suggesting through these questions that the attorney who hired me, who wasn’t my attorney, had altered or destroyed evidence and was a liar.”
“What did you say?” asked Gwen.
“That’s just it!” exclaimed Tidy. “I sat in the witness chair for three hours and other than for direct examination, didn’t say a word! Between asking me questions that impugned the integrity of the other lawyer, yelling at him when he objected, and arguing with the Judge, there wasn’t time or a chance for me to say a thing. The Judge had to excuse the jury four times to have conferences with the lawyers and held the lawyer in contempt twice before he recessed for the day. On top of it all, the poor court reporter said over and over again, ‘I can’t do this. Stop it. Please. One at a time!’”
“I am surprised the attorney that hired you didn’t ask for a mistrial,” said Gwen.
“The Judge asked him twice if he was going to do that, and all he said was he wanted an instruction to disregard the comments. At one point, the Judge said he was inclined to order the mistrial on his own motion. After we recessed, the lawyer told me he felt pretty good about the case and was ready to go to the jury.”
“What was the contempt ruling, Tidy?”
“I don’t know, Gwen. I wasn’t there for that, but from what the attorney told me, it was a fine of some kind. He also told me that she was in a lot more trouble than just a fine for contempt, and that the judge had a history of filing grievance complaints with the State Bar on lawyers that violate the rules in his court.”
Gwen reached to the top shelf of the bookcase in back of the desk. She opened a binder and ran her finger down the index. “Rule 3.04 Fairness in Adjudicatory Proceedings,” said Gwen. “Engaging in conduct intended to disrupt the proceedings is a violation of the disciplinary rules. So is asking questions intended to degrade a witness or other person, and that includes the integrity of the lawyer on the other side. In fact, some courts have held that impugning the integrity of opposing counsel is automatically reversible error.”
“I haven’t said this to anyone yet, and it’s just a thought of mine,” said Tidy, “but I think she was trying to force a mistrial because she was unprepared to deal with the technical side of my testimony.”
“If she was,” said Gwen, “it could cost her a lot more than losing the case or being sued for malpractice.”
Mazda said, “I thought only a client could file a grievance against a lawyer because there had to be an attorney-client relationship.”
“Actually, Mazda, it is a violation of the rule for an attorney, that includes judges, to not report a violation. Rule 8.03 says that a lawyer who has knowledge that another lawyer has committed a violation of the rules ‘shall’ inform the appropriate disciplinary authority.”
“But what if her client told her to upset the apple cart?”
“That dog won’t hunt, Mazda. A lawyer can’t violate the rules because a client told him to do so.”
“So, Tidy, do you have to go back to court tomorrow?”
“The judge’s staff is going to call me and let me know when, and if, I have to get back on the stand. I was told that the judge, not the lawyers, controls the trial, and he may very well decide that she has had her cross examination and it is over for me as a witness. I haven’t been excused yet, though, so I guess I am on standby.”
“So you actually bought the house in Spain,” Gwen said.
“Lock, stock, and cabana! Gwen, it is so cool you won’t believe it.”
“Very cool,” said Mazda.
“How do you know?” asked Gwen.
“Been there, Gwen. Where do you think Jeff and I have been for the last month? Who do you think Tidy bought it from?”
The flight from Alicante Airport was smooth and uneventful. Gwen, Tidy and Mazda had plenty of time catnapping and arrived stateside with little or no jet lag. Tidy’s house in Costa Blanca was everything she said it was and more. They spent three wonderful weeks doing nothing at all except recharging their collective batteries. Tidy bought the beach house on the Mediterranean from Jeff, and it was quickly becoming the trio’s retreat.
Gwen spent Sunday getting organized. Monday morning, bright and early, they were all back aboard the Blue Norther happy to be back at work.
First thing on the calendar was a meeting with Betty Ergo-Mondian. Gwen did not know her, nor did she recognize the name. Betty stepped into the Blue Norther at the appointed time, and the lack of any reaction to Gwen’s office aboard a trawler told Gwen that Betty had obviously researched her and was prepared. Betty was a beautiful woman, thirty-five years old, with flaming red hair, dressed professionally and carrying an over-stuffed briefcase. She arrived in a taxi, and Gwen soon learned she was from out of town.
Betty was gracious and enthusiastic as they all greeted each other and poured espresso from the Bialetti. One thing they all had in common was that they had recently been in the air. Betty had flown in the night before from Ontario and stopped to see Gwen before going to her home in Nebraska. Betty explained that she has law offices in Omaha and also Manhattan. She had been in Canada taking depositions in a divorce case.
“I have heard a great deal about you, Gwen,” said Betty.
“That’s a scary thing to hear!” Gwen couldn’t imagine what people in Omaha had to say about her.
Betty laughed and, after taking a sip of the Jamaican Blue Mountain espresso, said, “People are singing your praises, Gwen. And not just because you are a fine lawyer! Some of the things you have been involved with are nearly legends in the profession.”
Tidy piped in, “Never a dull moment with Gwen around!”
“So what can our little team do for you, Betty?”
“Gwen, I have a couple of things I need to discuss with you. First and foremost is a client that I am representing in a divorce and child custody case.”
“That’s not exactly my specialty, Betty.”
“Well perhaps not, but ethics is something you seem to have a grip on, and the issue I want to discuss is an ethical one.”
Betty explained to Gwen that she had been hired as one of three lawyers representing a party in a hotly litigated divorce. The client had not paid her as agreed in the attorney-client contract. She had told the client in writing and in person that she would withdraw if the fees were not paid. Betty also talked to the lead attorney who assured her that she would be paid. A further complication was the client’s “significant other,” who had attended one year of law school before dropping out and was advising Betty’s client contrary to Betty’s instructions on how they should proceed. On top of that, she got phone calls every day from the client’s “significant other” and her client’s other two lawyers. Sometimes the client would call and scream at her and berate her. The lawyers and the client‘s “significant other” would tell her what to do, when to do it, and how to do it, even though it was against her better judgment. However, when she needed to meet with the client, the client would not work with her, would not return her phone calls or respond to correspondence.
“I really cannot tolerate this anymore,” said Betty. “It is ruining my practice because of the time demands placed upon me without compensation. It’s also ruining my reputation and credibility with the courts because my client refuses to abide by the court’s orders and has been held in contempt more than anyone I know. I advised the lead attorney that, when I returned to the office, I was going to file a motion to withdraw, and I got a letter from him, the client, and the ”significant other” stating that if I moved to withdraw, they would file an ethical complaint and sue me for malpractice.”
Betty sighed as she leaned back in her chair and said, “I didn’t know it at the time that I agreed to represent the client, but they have sued just about every lawyer, expert, therapist, doctor, investigator, and witness that has in any way been involved in this case.”
Betty handed the motion to her. Gwen quickly scanned the standard motion to withdraw from representation of a client in a lawsuit. The motion stated there was good cause for withdrawal because the client refused to communicate with Betty, and refused to pay her.
Gwen asked Betty, “Is another lawyer substituting in for you?”
“No, three lawyers, and there will still be two after I step out. The lead attorney will actually be trying the case. At least that is the plan as it was presented to me.”
“Okay,” said Gwen. “As I understand it, you want us to advise you on whether your motion will create an actionable complaint under the Disciplinary Rules of Professional Conduct.”
“You got it,” said Betty.
Gwen told Betty that, as a first step, a motion to withdraw must be in writing, demonstrate good cause, and provide notice to the party. The withdrawing attorney must also notify the client in writing of any impending deadlines.
“All right, let’s talk about good cause,” said Betty, as she did a quick turn around the cabin, touching the wood panels and looking at the twin-monitor computer system installed by Tidy. “What exactly does that mean?”
Gwen pulled a binder from the shelf above her desk and said, “The guideline, if any, that is used by the courts is in Rule 1.15 of the Disciplinary Rules of Professional Conduct. It lists circumstances that require a lawyer to withdraw and circumstances under which a lawyer may withdraw without being in violation of the disciplinary rules.”
Betty responded to Gwen’s questions as they went through each section of Rule 1.15(b). “Can withdrawal can be accomplished without a material adverse effect on the interests of the client?”
“Gwen, I don’t think my role is significant enough to interfere with the case, so the answer is ‘Yes.’”
Betty, has the client been involved in a course of action involving your services that you reasonably believe may be criminal or fraudulent?”
“I don’t think we can use that one, although my client has disregarded most of the court’s orders and has been held in contempt.”
“Is your client insisting upon pursuing an objective that you consider repugnant or imprudent, or with which you have fundamental disagreement?”
“Nope, can’t use that one either.”
“Has your client failed substantially to fulfill an obligation to you regarding your services, including an obligation to pay your fee as agreed, and have you given the client a reasonable warning that you will withdraw unless the obligation is fulfilled?”
Betty smiled, “That’s the one, Gwen. Other than for a retainer that was exhausted months ago, I have not been paid. As it stands, my client owes me about $65,000.”
“That’s really all you need to be within the Disciplinary Rules of Professional Conduct, but let’s look at the rest of them. Will the representation result in an unreasonable financial burden on you, or has the representation been rendered unreasonably difficult by the client?”
“Well, I don’t think you have an ethical problem, but that doesn’t mean they won’t file a complaint with the State Bar—or worse, file a lawsuit against you. I think you have grounds for withdrawing, at least under the disciplinary rules. Let us see what the court rules when you have the hearing.”
“I have another issue I need to discuss with you.” Betty seemed more relaxed as she moved to the next order of business. “I am considering expanding my operations into your state and want to retain you to help with the process. Are you interested?”
Gwen, Tidy, and Mazda looked at each other as Gwen said, “Let’s talk!”
Shortly after the extended meeting with Gwen’s new client, Betty Ergo-Mondian, Tidy was off to a sleepy little town in the deep western part of the state. She had been hired by the State Police and would be working with the famed forensic team of Palentine & Cutter on a rather vicious event that resulted in the demise of a young local woman.
Gwen and Mazda began reviewing the details of Betty’s proposed expansion of her firm into their jurisdiction. Most of the information dealt with real estate requirements, staffing, licensing, organizations that would benefit the firm, and local practices and procedures.
Mazda opened one of the expandable files that Betty had left with them and said, “I guess we need to set up her telephone service and business pages, Gwen. Here is an ad from a phone book—at least that’s what it looks like.” She handed the page to Gwen.
The yellow sheet of paper looked to have been removed from the “Attorney” section of a phone book and had a number of listings on either side. Gwen could not find any listing for Betty Ergo-Mondian. She did notice a prominent listing on one side which was a half-page box. In the top half of the box in bold letters was the name, “Divorce Information Outreach.” There were no names or addresses in the box. It did contain a toll-free telephone number and a list of ten topics regarding various family crises with numbers next to them. Knowing that Betty was in the family law business, Gwen said, “Let’s see what this is,” and dialed the number.
Gwen put the call on the speaker phone and listened to it ring several times. A friendly voice welcomed them to the “Divorce Information Outreach” line and instructed, “Please enter the code for useful information about your topic of interest.”
Gwen entered the code for the first topic. Gwen and Mazda then heard a recorded message advising what to do if her spouse left home with the children. It described things she should do and persons she should contact. At the end of the tutorial, a different voice invited her to press “666” to schedule a free consultation about her crisis with a qualified family practice attorney. She was then transferred to the office of Betty Ergo-Mondian. Gwen disconnected the call and tried the other nine topics with the same result.
Mazda said, “Wow, Gwen, that is definitely pretty slick marketing!”
Gwen shook her head and said, “Definitely!”
“You’re shaking your head, Gwen. What’s the problem?”
“Well, right off the bat, Mazda, there are probably two, maybe three, violations of the Disciplinary Rules if this is a published ad; and that’s without really thinking very hard about it. I mean, this is just wrong! Lawyers can’t do this, at least not in our neck of the woods. I am really surprised to hear something like this that involves Betty, and I can assure you it is not something with which we will be connected.”
“I don’t get it, Gwen. The ad in the phone book doesn’t make any representations that are false, and neither Betty nor anyone else said a word about Betty, so she’s not bragging or saying she can win someone’s case. I thought most of the information was really helpful.”
“Mazda, there is no question that this is an advertisement, so it has to comply with all of the rules in Chapter VII of the Disciplinary Rules, including being reviewed by the Advertising Review Committee of the State Bar. Also, ads can be a violation of the rules for what they don’t say, as well as what they do say.” Gwen called the cell number that Betty had given her and was connected to her voice mail. She left a message asking Betty to call as soon as she got back to her office.
“I always thought we had freedom of speech as long as we weren’t lying about something or trying to rip someone off,” said Mazda.
“I understand, Mazda, but the Disciplinary Rules governing advertising only ban misleading or false commercial speech, and, according to the courts, do not violate the right to free speech.”
Mazda asked Gwen, “How in the world can something you don’t say in an ad be false advertising? I mean if you advertise a car for sale and you don’t claim that it is in working condition, isn’t it up to me to check it out before I buy it?”
“Mazda, there is a big difference between cars and lawyers. What you are referring to is the old saying, ‘let the buyer beware.’ That doesn’t cut it when it comes to lawyers.”
Gwen explained to Mazda that Chapter VII was intended to protect the public from being misled by an attorney’s advertisement. Clients are entitled to know what fees that will be charged, the location where services will be provided, and the attorney who will be performing these services before they actually hire the lawyer. As Gwen had mentioned, an advertisement can also be misleading by what it does not contain. In an advertisement such as Betty’s, a caller wishing to speak to an attorney cannot verify any information regarding that attorney before dialing “666” to speak to the lawyer.
“You see, Mazda, one of the fundamental purposes of these rules is to allow a consumer to make an informed choice before seeking legal services, by using the name, reputation, location, and qualifications of a potential attorney. By not including her name in the phone book ad and being the only attorney that could be contacted, Betty probably violated that purpose.”
Gwen also pointed out to Mazda that this type of advertising creates the same types of problems as the use of a trade name, which is inherently misleading because a potential consumer has no name or other information to help them evaluate whether they even want to contact a particular lawyer before being connected to the attorney’s office.
“We won’t know until we speak to Betty, but I’m guessing that ‘Divorce Information Outreach’ is probably a trademark that is owned by Betty. A lawyer doing business under a trade name and nothing else is clearly prohibited by the rules contained in chapter VII. There are also a number of disclaimers that are supposed to appear in ads by lawyers, and this one doesn’t have any at all.”
Just then, the phone rang and Mazda answered it. She had a brief conversation and concluded the call. “That was Betty’s answering service. The operator said they got our number from the office ‘caller ID’ and wanted to know if we were calling for legal assistance.”
“Oh, brother, it just keeps getting worse!” said Gwen. She began typing an email to Betty on her laptop, suggesting that Betty come back to the office as soon as possible and seriously consider discontinuing any messages to call “666” until after they have an opportunity to discuss the legality of the ad. Then the phone rang again signaling a voice message. Gwen pushed the message button, and Tidy’s voice filled the room:
“Gwen, call me as soon as possible. We have a real mess out here, and I’m going to need your help.”
Gwen finally calmed down and decided to wait for a call from Betty Ergo-Mondian. There was nothing else she could do until she heard from Betty. Gwen was very concerned that Betty’s telephone solicitation enterprise, disguised as an “advice to the lovelorn” service, was going to create problems for Betty, and possibly for her as well.
In the meantime, Gwen needed to return Tidy’s frantic call. Tidy was in the deep west town of Buttrice Falls. She was hired by Palentine & Cutter, the famous forensic team that was more often than not employed by the state police. This time they were working on a case for Nigel Mortmont. Nigel is an extraordinary defense attorney from New York. He only handles high-profile capital crimes. He had been defending Pinney Woods, who is alleged to have murdered a local teenage girl.
Pinney owned and operated the only mortuary in Buttrice Falls. The young victim was found on a mesa frequented by rock hounds and fossil hunters. The circumstances surrounding the murder are not for the faint of heart. It was common knowledge in the community that Pinney was in love with the young lady, and that she never missed an opportunity to rebuff Pinney. She made it very clear that he was just too strange for words. The state police made the connection between the victim and Pinney, established the motive, and the Buttrice Falls District Attorney, Peter Pillotes, tried the case. Pinney was convicted of murder.
Gwen hit the redial button on the office phone. It rang once, and Tidy answered. “What’s up, Tidy?” asked Gwen.
“I guess you already know that Pinney Woods was convicted of murder yesterday at about 5:45 in the evening.”
“That’s what I understand. What can I do for you, Tidy?”
“Well, Gwen, we have a situation.” When Tidy called the issue at hand a “situation,” it usually meant that there was about to be a “magnitude ten” storm. “We are filing a motion for a new trial. Nigel and I were going over the particulars with Pinney, and what do you think he said sitting in the attorney room at the jail, just as calm as he could be?”
“That he was guilty?” asked Gwen.
“No!” shouted Tidy. There was the sound of turning pages. “This is a quote,” said Tidy: “‘You know that Peter Pillotes has never liked me. Even when he was my lawyer. He could have at least acted like it after what I paid him.’”
“Holy afterthought!” exclaimed Gwen. “When was Pillotes his lawyer?”
“Peter Pillotes represented Pinney for possession of marijuana ten years ago. Pinney was convicted and got a probated sentence. We want to file a motion to disqualify Pillotes for conflict of interest.”
Gwen said, “I take it this was before he became the prosecutor in Buttrice Falls?”
“That’s right,” said Tidy.
“Tidy, it is certainly worth a shot. I guess, with a conviction, your team will have to pull out all the stops anyway.”
“You sound . . . well, hesitant,” said Tidy. Tidy was just a tad deflated by Gwen’s reaction.
“What else have you got?” asked Gwen.
“That’s pretty much the whole enchilada,” said Tidy.
“The District Attorney has a duty to represent the State in murder cases except in cases where the prosecutor has been employed adversely.” Gwen went on as Tidy listened on a speaker phone, no doubt in the presence of all concerned. “Prosecutors are, of course, attorneys, and are subject to the Disciplinary Rules of Professional Conduct; and generally the courts, even in Buttrice Falls, will be guided by those rules in conflict cases.”
“Gwen, Nigel here. We don’t want to file a grievance complaint against him just yet. All we want to do is disqualify the prosecutor and get Pinney a new trial.”
“I understand,” said Gwen, “but even though you are not seeking sanctions under the rules, the courts are still going to be guided by them in determining whether there has been a conflict of interest. Rule 1.09 of the Disciplinary Rules of Professional Conduct concerns conflicts of interest. It generally prohibits a lawyer from assuming representation of a client adversely to the interests of a former client if it is the same or a substantially related matter. A prosecutor should be disqualified when the matter being prosecuted is the same matter for which that attorney previously represented the accused.”
Gwen explained to the group that the question is whether the district attorney would be prosecuting the defendant on the basis of facts acquired by him during the existence of his former professional relationship with the defendant. Use of such confidential knowledge would be a violation of the attorney-client relationship and would be clearly prejudicial to the defendant.
Nigel said, “Gwen, they are going to use the possession conviction in the punishment phase. Isn’t that enough to disqualify him?”
“I don’t think so, Nigel. It’s public record and would be available to any prosecutor. I think it would be a good idea to get a copy of the court’s file in the possession case and see what kind of defense there was. See if there is something in the file that suggests knowledge that could only have been acquired through a privileged communication. Ask Pinney if Pillotes visited any shrinks or other health care providers. There might be something there. Then you might have a better shot. As it stands now, you are not on very solid ground. Did you raise mental competence or sanity in your defense?”
“Yes, indeed,” said Nigel. “I am on my way to see Pinney’s therapist as we speak.”
The phone disconnected without a goodbye or call you later. Gwen called Tidy on her cell.
“Hi, Gwen. Sorry about the disconnect. Nigel thinks there may be a connection between Pillotes and Pinney’s therapist. I’ll let you know what’s up later today.”