“I need to look at that rulebook again,” Mary said, getting an idea.
CHAPTER FOUR
Bennie sat at her desk and stared at her notes without really seeing them. She usually felt jazzed before a deposition because it was the first time she would encounter her adversary. Plenty of lawyers played nice, warming up the witness only to work him over at trial, but she wasn’t built that way. Her litigation strategy was to assert her dominance from the outset and never let up. There was a reason she had a coffee mug that read I CAN SMELL FEAR. Actually, she had two of them. One was a gift, and she’d bought the other one in case the first one broke.
But this morning, Bennie didn’t feel jazzed. She tried again to concentrate on her notes, which she’d handwritten on yellow legal pads with a ballpoint pen that made satisfyingly bumpy ridges on the paper. She loved computers as much as everybody else, but there was something about a fresh legal pad that got her juices going. Bennie Rosato loved everything about being a lawyer and she was born with what lawyers called a “justice bone,” which ached whenever somebody was being treated unfairly. For that reason, she’d been looking forward to her deposition today, but her mind kept wandering. Her fight with Mary gnawed at the edges of her brain.
Bennie’s gaze strayed around her office, with its messy bookshelves stuffed with binders, legal cases, clipped articles, and textbooks from law school, which looked older than usual, perhaps because she herself was vintage. Whatever. Across from her desk were two patterned chairs, and all four walls were covered with awards, citations, and certificates she’d gotten from public-interest law groups all over the country, and the American Bar Association. Acrylic and glass awards filled the entire shelf, and her gaze stopped on one of them, given for exemplifying ethics in the practice of law.
Believe it or not, it’s not a settled question.
Bennie got up from her desk in frustration. She crossed to her bookshelves and started digging through all the crap until she found a copy of the model rules, then flipped to the provisions regarding conflicts of interest and read aloud: “‘A lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary—’”
Bennie stopped, surprised. This wasn’t the way she remembered the rule, but it must’ve been amended. She kept reading, “… ‘the lawyer for an organization is not barred … unless the circumstances are such that the affiliate should also be considered a client of the lawyer…’”
“Aha!” Bennie got the gist, reassured. Maybe the rule wasn’t as black-and-white as it used to be, but bottom line, each case had to be analyzed in its individual circumstances. So Bennie was right, and circumstances clearly prohibited Mary from representing OpenSpace against Dumbarton. It was good to be right, and Bennie never tired of it. She closed the book with a satisfying slap and slid it back onto the shelf, just as there was a knock on the door.
“Come in, Sam!” Bennie was expecting her old friend Sam Freminet, who’d sent her the client she was representing this morning.
“Good morning, honey!” Sam entered the office and kissed her on the cheek, and Bennie breathed in his spicy aftershave, since he always smelled better than she did. He looked better, too, his reddish hair in a short feathery cut, his small blue eyes bright behind his rimless glasses with earpieces of tan plastic, and a tan-patterned silk tie and tan suit of light wool, undoubtedly custom-tailored. Sam was one of the most prosperous bankruptcy lawyers in the city and he always dressed expensively, an irony that wasn’t lost on him.
“Good morning, Sam.”
“Why are you so frowny? Getting ready to destroy the enemy?”
“No, then I’d be smiling.” Bennie went around the desk and sat down, while Sam took a seat opposite her, crossing his slim legs.
“Then is it because of the skirt?”
“What skirt? You mean my jeans skirt?”
“Marshall told me.” Sam laughed wickedly. “Honey, please. So what, she bought your skirt. You should be ashamed that you owned a skirt like that in the first place.”
“I was young.”
“Were you also high? I mean, constantly? Or at least when you bought the thing?”
“I made it.”
“Then you were temporarily insane.” Sam chuckled at his own joke. “Anyway, I’m surprised it bothers you. You know you’re old. I know I’m old. We’re old now.”
“We’re in our forties.”
“Like I said. I may be forty-five, but that’s ninety-two in gay years. It’s like dog years. Who cares anyway?” Sam waved her off. “The day I didn’t want to go to clubs anymore, I knew it was over. Now I sit happily at home with Paul. We put on our jammies and watch British crime shows on Netflix. You and Declan never go out either, do you?”
“We don’t get to see each other that much, so no.” Bennie was crazy about Declan Mitchell, a lawyer she’d met on a recent case, but they had a long-distance relationship, since he had a home and a general practice law firm in York. They took turns driving, and Declan was the kind of man worth driving three hours for. She’d never been so happy in her life, but the Mary thing was still bugging her. “Pop quiz. Can Mary DiNunzio represent a sub of a client of mine and sue my parent?”
“Possible,” Sam answered without hesitation.
“What are you talking about? We’re partners. I represent the parent and she wants to sue the sub.”
“But the new rules say it depends on the circumstances.”
“How do you know that?” Bennie didn’t understand how everybody in the world knew this and she didn’t.
“I deal with that issue all the time. The world is changing, girl. The more consolidation, the more headaches. We’re crazy with the parents and subs, constantly running pre-conflicts checks and conflicts checks.” Sam rolled his eyes. “Nobody wants to turn down work. We all parse the circumstances to keep the client. In your case, who’s the parent and sub?”
“The parent is Dumbarton. The sub is OpenSpace.”
“Dumbarton?” Sam’s eyebrows flew upward behind his cool glasses. “Big-time. Nate’s company.”
“Right.” Bennie, Sam, and Nate were all in the same class at Penn Law.
“So you have to deal with Richie Rich.”
“Yes.” Bennie smiled at Sam’s old nickname for Nate. “Don’t hate. He came from nothing. He did it all himself.”
“I know. He’s a self-made asshole.”
Bennie let it go. “Anyway, I think Mary is conflicted out of the representation.”
“Not necessarily. It could go either way, but in this case, it’s okay.”
“What? Why?”
“You want me to tell you she can’t take the case.”
“Of course I do. You’re my friend.”
“You’re shameless.”
“I’m loyal.”
“You’re too loyal.” Sam leaned over, warming to his topic. “Dumbarton is a 143-million-dollar company with twenty-six subsidiaries. I only know because Nate reminds me at every frigging reunion. Size matters to those who don’t know better.”
“But OpenSpace is wholly owned, in the same corporate family.”
“A very large corporate family. Like those Duggars. There’s way too many of them. Give it a rest, people!”
Bennie stayed on track. “Why should it be a different answer if it’s twenty-six subs or two? What difference does that make, in principle?”
“That’s different circumstances, right there. And the subs are spread across the country, aren’t they?”
“Yes,” Bennie had to concede. “And he’s about to acquire two more in the Midwest.”
“I collect watches, he collects companies.” Sam sniffed.
“Your point?”
“Are the board and the officers the same?”
“There is no board. They’re not public companies.”
“Oh, right, of course. Mr. Total Control loves to
tal control.”
“Not like you and me.”
“But we’re fun and he’s not.”
“That’s true.” Bennie smiled.
“How do they handle the legal work for the subs? Do they handle it all in house at Dumbarton?”
“No, it depends on the size of the sub. Some of the bigger subs have their own legal department on the premises, even if it’s one man. OpenSpace is a small sub, so they handle it at Dumbarton.”
“That cuts in your favor.” Sam thought a minute. “Who’s general counsel these days? It’s not Nate, is it?”
“No, he stopped about three years ago. The general counsel is Leo Magid and he runs their department like a law firm, with lawyers grouped according to specialty. He’s got about ten guys in house, at Dumbarton headquarters in King of Prussia.”
“Who do you deal with in house?”
“Not many of them, only Nate.”
“So Nate takes time from his insanely busy schedule to deal with you? That’s the lamest excuse I ever heard to hit on somebody.” Sam snorted. “I bet he prays that people slip and fall so he can call you. If I know him, he’ll be dropping banana peels.”
Bennie let it go. “He likes to keep his hand in.”
“I bet he does.”
Bennie let that go, too. “He doesn’t hit on me anymore.”
“Only because he knows you’d hit him back.” Sam burst into laughter, and Bennie had to smile.
“Puns are beneath you.”
“Evidently they’re not. Okay so back to business.” Sam thought a minute. “Another factor is if the subs are in the same business, but his aren’t, are they? The subs he currently owns aren’t all in construction, are they?”
“No. Some are, some aren’t. He just bought a coat company that donates one-for-one to the homeless, like Tom’s Shoes but in the U.S.”
“He has no social conscience. He’s just trying to get in your pants.” Sam smiled slyly. “You friend-zoned him, but he won’t stay there. He’s that guy.”
“What guy?” Bennie asked, amused.
“The guy who nobody says no to, so he wants whoever said no.”
“Still, no. Please, get back to the ethical question.”
“When we analyze those conflict questions at my firm, we also look at the financial impact the putative litigation could have on the parent. For example, what’s the case about?”
“It’s an ADA action on behalf of a sales rep who was fired. The facts are sympathetic. If Mary can prove it, it’s a winner.”
“So they should settle it.” Sam spread open his palms in appeal. “If it’s little, it makes sense to settle. If it were bigger, I’d be on your side. I’d be more inclined to say that Mary should take it. But it’s not anything with enough exposure to impact the bottom line of Dumbarton.”
“True.” Bennie didn’t like the way this was going.
“So, it’s an individual case with some measure of damages that affect the bottom line of Dumbarton. It’s not even worth litigating, and OpenSpace is insured for the loss. What’s the big deal?”
“It’s the principle of the thing.”
“What principle?”
“The duty of loyalty to the client. I knew Nate when Dumbarton had two subs, then six, then twenty. I watched it grow.”
“So what? It’s a business, not an embryo.” Sam lifted an eyebrow. “Wait, what? Are you getting maternal on me?”
“God, no,” Bennie answered quickly. She knew she had a justice bone, but she wasn’t sure she had a maternal bone in her body. She loved dogs, but she was pretty sure it wasn’t the same thing.
“Then what’s bothering you?”
“I’m not proud of what she’s doing and I don’t think it’s right, so I don’t even feel that I could defend it to Nate.”
“But it’s a judgment call under the rules.”
“He’ll never see it that way. He’ll feel betrayed, and he’s a major client.”
“Pssh.” Sam waved her off. “You’re not going to lose him over it. He loves you.”
“He loves my work.”
“Keep telling yourself that. And more importantly, what about Mary? Aren’t you trying to play nice with her? She’s your partner now. Where’s your loyalty to her?”
“What about her loyalty to the firm?”
“Not the point. She didn’t know. She’s trying to be a good lawyer.”
“So am I.”
Sam frowned. “Bennie, compromise. You should try to work with her.”
“I’m trying.”
“Try harder, girl. You’re her partner. Act like one.”
“Okay, whatever.” Bennie checked the clock. She had only a half hour before the deposition. “Let’s move on. We have more important things to talk about.”
“What do you know?” Sam snorted. “You made a skirt out of pants. I’ve lost all respect.”
CHAPTER FIVE
Mary sat at her desk behind her laptop, working faster than she had ever before. She’d already formulated a litigation strategy around her new idea and gotten a thumbs-up from Simon. The EEOC complaint was just a form, but the complaint took more work. She tapped away on a draft complaint, mindful of her main task. Under the ADA, it was unlawful for OpenSpace to fire Simon because it didn’t want their insurance premiums raised because of Rachel’s medical expenses, but it was lawful to fire him for cause, like falling sales quotas. She had to prove that the medical expenses were the real reason he was fired, not his performance. It was a commonsense task to show a causal relationship between the medical expenses and the termination, and in that regard, Simon’s notebook was extraordinarily helpful because the temporal relation between the two was clear.
Mary took the facts directly from Simon’s notes, and there were three different occasions on which Eddington had made comments about Rachel’s medical expenses, and Mary made each one into a specific allegation of facts to support her theory of the causal connection. She typed:
On Wednesday, October 20, after the plaintiff’s daughter’s first round of chemotherapy started, plaintiff submitted a bill to Todd Eddington, whereupon Eddington stated, “I hope this works, for her sake and for ours. These expenses are going to mount up, and we met our deductible already. Our premiums are going to go up.”
Mary shook her head with disgust. She could only imagine how betrayed Simon must have felt by Eddington, who’d been so callous in the face of Rachel’s life-or-death struggle. Mary understood that business wasn’t always warm and fuzzy, but she also knew that corporations purchased insurance policies for a reason. Medical expenses for employees were a cost of doing business, and this situation was exactly the type that the Americans with Disabilities Act had been legislated to prevent.
She kept typing, detailing the second incident:
On Thursday, January 5, plaintiff submitted a bill for his daughter’s chemotherapy to Todd Eddington, who said, “This is the beginning of a new quarter and a new fiscal year. Do you think this is going to be as expensive as the last round?”
Mary typed the quote with grim satisfaction. She wouldn’t usually be so detailed in the complaint, but she had strong facts and believed that if she highlighted them, the other side would see she had a winning case and be convinced to settle more quickly. It was part-and-parcel of her new plan. The only problem was Bennie.
Mary kept writing:
On Thursday, March 30, plaintiff informed Todd Eddington that his daughter would require a bone marrow transplant, and Eddington asked how much the transplant would cost. Plaintiff didn’t know at the time, but told Eddington that the search charges to find a donor would cost approximately $60,00 to $100,000. Eddington stated, “These expenses are going to kill us this quarter. We can’t keep this up. They’re going to raise our rates.”
Mary knew it didn’t get any better than that in terms of proof. Eddington was practically admitting that he was going to find a way to cut Rachel’s medical expenses, which was homerun evidence for their case.
She was always surprised at how many supervisors, bosses, and middle managers made statements that were completely unlawful, merely because they either didn’t know the law—or didn’t care. But not on her watch.
She wrote the next allegation in a more argumentative style to drive home the point:
It is no coincidence that the very next day, on March 31, Todd Eddington informed plaintiff by email that his region was being decreased from three mid-Atlantic states to just one, the smallest, Delaware. This employment decision was essentially a demotion and virtually assured that plaintiff would not be able to meet his sales quotas because …
Mary kept writing, detailing her facts, laying out the legal portion of the complaint, and finally arriving at the damages, which she left boilerplate, “in excess of $50,000,” since that was the minimum for federal-court actions. She would leave the amount open-ended until after she had studied the bills, which Simon had already emailed her but she hadn’t had a chance to review yet. Obviously, she wanted to get as much money as possible for Simon, but her strategy in settling cases was to start at a reasonable number, because it signaled that she was willing to settle.
The sun moved across the sky behind her, shifting a shaft of sunlight from her correspondence to her laptop, but she barely noticed. She ate lunch while she worked, a small garden salad brought to her by Judy, which made her feel better. She spent the rest of the afternoon finishing the draft complaint, writing a cover letter, and crunching the numbers for a settlement demand. It took her until the end of the day and she printed out the complaint, checking the hallway to see when Bennie came out of her deposition, which was in the conference room across the hall.
There was a commotion outside, and Mary grabbed the complaint and hurried out of her office. The deposition was over, and a weary court reporter, a few men in suits, Bennie’s friend Sam, and finally Bennie left the conference room, saying good-bye to Sam with a sheaf of exhibits in her hand.
“Bennie, got a minute?” Mary intercepted her, right outside the door.
“Just about,” Bennie answered, heading for her office.