Perri O'Shaughnessy - Unfit to Practice

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

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

“Sustained.”

“Then what happened?”

Nina tensed. Now they moved to the meat.

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

“You kept the envelope it arrived in?”

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

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

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

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

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

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

Jack shuffled his papers and got ready.

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

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

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

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

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

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

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

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

“Your objection is overruled.”

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

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

Jack sat down.

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

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

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

“A form that was headed Client Intake Interview.”

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

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

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

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

“The last sentence on the third page.”

“Read that sentence to us, please.”

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

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

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

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

“Yes.”

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

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

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

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

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

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

“Did this matter have any impact on you personally?”

Marilyn blinked back tears. “It made my husband’s last months-hard.”

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

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