Perri O'Shaughnessy - Unfit to Practice

“Not to my knowledge.”

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

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

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

“That’s right.”

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

“Yes. On the phone. Not in person.”

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

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

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

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

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

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

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

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

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

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

“Sustained.”

“Then what happened?”

Nina tensed. Now they moved to the meat.

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

“You kept the envelope it arrived in?”

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

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

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

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

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

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

Jack shuffled his papers and got ready.

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

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

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

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

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

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

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

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

“Your objection is overruled.”

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

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

Jack sat down.

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

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

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

“A form that was headed Client Intake Interview.”

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

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

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

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

“The last sentence on the third page.”

“Read that sentence to us, please.”

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