The Law of the Sea : A Legal Thriller

by Dave Gerard

Amidst all this, we needed to depose Lloyd Gunthum too. At first, Loudamire gave me the runaround. She said they were too busy and there were much more important issues at stake. But I threatened to go to Judge Graves, and she caved and agreed to a date.

  The media attention to the case was unrelenting. There was a feeling of high drama to it all; the grand treasure, the ancient history, the rival claimants, the powerful lawyers, the domineering judge, the breakneck pace. Consistent with the gladiatorial sensibilities of American litigation, it had the feeling of a contest, where many would fight but only one would win.

  And in the midst of all this, as we tried to keep our heads above water, we also had to keep our eye on the ball: Marcum’s death, the contract, and the Flor de la Mar.

  A half hour after he left, Vijay came back with Taco Bell. He passed out handfuls of Doritos locos tacos, grilled stuffed black jack enchiritos, and double decker supreme jalapeno popper quaesaritos to everyone.

  I turned on the small TV and put on MNN, and we all took a little break to eat and watch the latest. Katie Tyler was reporting, as she did nearly every day lately.

  “Where’s Rufus Rockaway?” Harder asked, his voice muffled by enchirito.

  It was a good question. We hadn’t seen Rufus Rockaway on MNN for a while. Only Katie Tyler. I found myself missing Rockaway’s flamboyant reporting and mannerisms. “I’ve been wondering that myself,” I admitted.

  “Maybe he got canned,” Vijay said.

  “I hope not.”

  “Maybe Katie will say something about it,” Harder suggested. We continued to watch, but Tyler made no mention of Rockaway or where he might be.

  “Guys?” said Cindy, interrupting us. She was frowning at her computer screen.

  “Cindy,” said Vijay in a long-suffering voice. “We’ve talked about this. It’s taco time.”

  “I know. But Rockweiller filed another motion.”

  I groaned. “What is it this time? A fifth motion to strike?” I was resigned to the fact that we would be here all night.

  “No,” said Cindy. “It’s a motion to disqualify.”

  That made me go cold. I put down my food and went to look over her shoulder.

  “And there’s something else too,” she added. “I just got a case notification. Of a new lawsuit, filed by Rockweiller Industries. The subject is legal malpractice.”

  “Who’s the defendant?”

  Cindy looked up at me.

  “We are.”

  TWENTY-FIVE

  The motion to disqualify hit like a hammer. Rockweiller accused us of gleaning confidential insights into the company’s strategy from our past work for them. Then, we had betrayed that confidence and weaponized it against Rockweiller. A conflict of interest.

  The lawsuit said the same thing—and also demanded fifty million dollars in damages. The law firm of HH&K itself was the defendant. David Wurlheiser and Bob Kruckemeyer were personally named too.

  It was total bullshit. We hadn’t used any “confidential insights” from Rockweiller to our advantage. I would know, as I’d been on the case from day one. But as Cindy printed out copies and we began to read, I grew more concerned. Wurlheiser’s work was more closely related to the case than I knew. He had drafted the partnership agreement between Rockweiller and Excel Resources. He had also drafted the employment agreements for Lloyd Gunthum and his crew, and the insurance policies that covered them. Finally, he had drafted some settlement agreements for Rockweiller in the past.

  We hadn’t actually used any of this information. I hadn’t even known about it until now. But it looked bad. In theory, knowing that stuff could give us an advantage in the case. And conflicts were as much about appearance as reality. The motion and the lawsuit both had a lot of detail, including a description of the conflicts meeting we’d had. I wondered how they knew all this stuff.

  And then I saw it. Rockweiller had gotten their information from a source inside HH&K. And they named him: Richard T. Harder III.

  One by one, as we reached that part of the brief, we looked up at Harder. No one said anything. We just stared at him. Harder flipped through the pages, white-faced. Eventually, he got up stiffly and left the room.

  The next day, Harder and I were summoned to an emergency meeting of the partners. Copies of the disqualification motion and the lawsuit littered the table. The mood was ugly. Kruckemeyer was reading the lawsuit with a worried look on his face. David Wurlheiser was pacing the room, shaking his head and talking to himself.

  Remington looked up at us as we walked in. “Sit down,” he said grimly. Harder sat down rigidly in a chair. I sat next to him. “You want to tell us what’s going on?” he asked Harder.

  Harder nodded. He took a few moments to collect himself. Then he spoke in a wooden voice, his eyes never leaving the table.

  “A few months ago, I had dinner with some Badden & Bock associates. Lucius Quinto and Cornelius Adipose. I met them at the Judicial Honors Gala a while back. One day, they called me and asked if I wanted to join them for dinner at Oichi Omakase. I said yes.” Oichi Omakase was the fancy Japanese restaurant I’d seen Harder at, the night I had dinner with Ashley.

  “I thought it was just dinner,” Harder said. “I didn’t see a reason not to go. They seemed like okay people. We didn’t talk about the case or anything, at first. Just law school, and work. Life in Houston and New York. That sort of thing.”

  Harder cleared his throat. “We drank a lot. They kept buying. The conversation started to touch on the case. I tried to stay clear of it. But then they brought up this conflicts thing. They asked whether it was true that HH&K had done some work for Rockweiller in the past. And if it wasn’t a problem that we were working against them now.”

  Harder cleared his throat. “I said yeah, we had done work for them before. But I told them there was no conflict of interest. We had done a thorough conflicts check, I said. And even had a partnership meeting about it.” The partners murmured and shook their heads at this revelation. That wasn’t good.

  “What else did you tell them?” said Remington.

  Harder reddened. “I told them about the work that Wurlheiser had done. On partnership agreements, and other stuff. Kruckemeyer asked me to pull those files after the conflicts meeting. So I knew about them.”

  “Goddamn it!” yelled Wurlheiser, slamming his fist down on the table. “Why did you tell them that?”

  “I was trying to show them there was no conflict,” Harder said miserably. “That we did the right thing. And it’s true. None of this stuff is a real conflict of interest. I wanted them to see that.” He was pleading.

  Kruckemeyer sighed. “You’re right. It’s not a real conflict. But it doesn’t have to be real to start a lawsuit. You don’t need lemons to make lemonade.”

  “Anything else?” prompted Remington.

  “I told them about the conflicts vote. That some of the partners were against it.” Wurlheiser cursed.

  “That was it,” concluded Harder. “I realized I’d said too much. I stopped drinking. I excused myself and left soon after. I haven’t heard from them since.”

  “Why did you go to dinner with them in the first place?” Wurlheiser demanded.

  Harder looked embarrassed. But he owned up to it. “I thought I’d made a good impression at the gala. I thought…I thought they might offer me a job.”

  Wurlheiser shook his head disgustedly. “After dinner,” Harder said, “I went to Bob and told him everything.”

  Wurlheiser whirled on Kruckemeyer. “You knew about this? Why didn’t you tell us?”

  Kruckemeyer looked uncomfortable. “It’s a sticky situation, David. I was trying to think before I brought it to the full partnership. I didn’t know if anything would come of it.”

  “Well, something has,” said Wurlheiser. He pointed a finger at Harder, as if charging him with a crime. “This associa
te disclosed confidential information to an opposing attorney. I want him fired.”

  Harder’s face paled. So did mine. As much as I had my issues with Harder, this was a bridge too far. “Hang on now,” I said. “Isn’t that a little much? Richard wasn’t trying to do any harm. He barely told them anything they didn’t already know. They had all the bills and records already. We gave them to them in the first place!”

  Wurlheiser rounded on me. “You don’t have a say in this. If I had my way, you’d be fired too!” Then he turned back to the partners. “Rockweiller would never have put this together without help. Their old general counsel left. The one I worked for. You think this new lawyer, Stephanie Rivera, had any fucking idea where those files were? Or what kind of work I did for the company back then? I bet those files were buried at the bottom of a file cabinet somewhere. They never would have seen the light of day!

  “I told all of you!” Wurlheiser screamed at the assembled partners. “I told you we shouldn’t have taken this case!”

  “Calm down, David,” said Kruckemeyer, trying to placate him. But Wurlheiser exploded at him.

  “Don’t tell me to calm down!” he yelled. “They’re suing us for fifty million dollars. They’ve named me personally. Me! I’m the one that did the work. They want to take my deposition. All our depositions. It’s going to be a nightmare. Lawyers don’t make good witnesses. We’re going to get screwed!”

  “Well, David,” Kruckemeyer said gently, “to be fair, you didn’t tell us exactly the work you’d done for Rockweiller. You said it was just some general contracts and drafting stuff. We didn’t know—”

  “You’re blaming me for this?” Wurlheiser shrieked.

  Kruckemeyer made calming motions with his hands. “No one’s blaming anyone, David. We’re all in this together.”

  “And we need to get out of this together. I vote we recuse from the Marcum case immediately. Withdraw and see if Rockweiller will drop the lawsuit.”

  Remington shook his head. “That’s not going to work. They’re not just going to drop the lawsuit because we ask nicely. Just the opposite. We show weakness, they smell blood.”

  Kruckemeyer nodded reluctantly. “John’s right,” he said. “They’re playing hardball now. Rockweiller’s mad, and they’ve got deep pockets.”

  “Then what are we going to do?” asked Wurlheiser.

  Kruckemeyer cleared his throat. “We may have a way out,” he said. “Zachary Bock called me this morning and made a settlement offer. For the Marcum case. The offer was two million dollars. He hinted they would drop the lawsuit if we took it. I think we could negotiate that up to three, and make everything go away.”

  I saw from Remington’s slight reaction that he hadn’t known about this. Bock had gone behind his back. Bock probably hoped to get a better deal that way, and sow dissension among the partners. I thought about what Remington had said about inflicting pain. It seemed that could go both ways.

  “Of course,” cautioned Kruckemeyer, “we can’t let this new lawsuit affect our decision to settle or not settle the Marcum case. We have a duty to our client. This pressure tactic can’t cloud that duty, and it won’t.” Kruckemeyer looked uncomfortable. “But nonetheless.”

  Wurlheiser seized on this and voiced his immediate assent. “I say we do it. That’s a good deal. Hell, they started out at a quarter million dollars. It’s a win and an easy out. Let’s take it.”

  “It is one way out,” Kruckemeyer said. “But ultimately, it’s got to be the client’s decision.” He looked at me now. He knew I was in a unique position here because Ashley trusted me.

  “Our client is the Estate,” said Wurlheiser, “not Ashley Marcum. Tell her she takes the deal, or we drop her.”

  “She’s the executor of the estate,” I argued. “That makes her the client. And I’m not going to tell her to take a deal at gunpoint or we’ll toss her to the curb.”

  “You’ll tell her whatever we damn well say!” said Wurlheiser.

  “No, I won’t,” I spat back, not caring that I was overstepping my bounds. “This lawsuit is bullshit. And Bock is a bully. I’m not going to fold as soon as they put some pressure on. There’s no real basis for disqualification.”

  “And you know that from what, your five minutes practicing law?” Wurlheiser retorted.

  Kruckemeyer agreed. “Jack, you haven’t been in this business long enough make that judgment call.”

  “He hasn’t, but I have,” said Remington, breaking into the discussion. “And he’s right. This is a bullshit lawsuit. They’re not going to get fifty million dollars, or even one million dollars. I’ve handled enough conflicts suits to know this.

  “All of this stuff,” he said, hefting the lawsuit, “is just fluff. These partnership agreements, settlement agreements, employment agreements—they’re just boilerplate documents that Rockweiller uses in a hundred different situations. We didn’t ‘weaponize’ anything against Rockweiller. There’s no case here.”

  “Even if that’s true, we’ll still have to defend it,” argued Wurlheiser. “They’ve sent deposition notices to me, to Richard, to Bob, to half a dozen other partners. They’re going to make this ugly.”

  “Yes, they will make it ugly. That’s the way this works. But it’s not easy to get attorney depositions. They’re privileged.”

  “Not always,” said Wurlheiser.”

  “No. Not always.”

  Another partner spoke up. “Denton’s got hit with a thirty-million-dollar malpractice verdict over a conflict a few years back.” Denton’s was a well-known law firm, one of the biggest in the world. There were murmurs around the table. People remembered it.

  “That’s true,” Kruckemeyer said. “That was a different situation, though. Nothing like here. But still.” Kruckemeyer looked troubled. “And there’s something else to think about,” he added. “This case hasn’t exactly been profitable for us. We’re putting up a lot of money, and a lot of time, and we don’t have much to show for it. And to be honest, John, it doesn’t seem like the case is trending our way.”

  “He’s right,” said Wurlheiser. “Marcum’s death isn’t worth that much money. It was a scuba diving accident. Where’s the blame for that? You think the Judge is going to come down hard on Rockweiller? If they’re offering a good settlement to get rid of us because of this Flor de la Mar mess, then let’s take advantage. Let’s get out while the getting’s good.”

  “As I’ve explained,” said Remington patiently, “I don’t think this was a simple scuba diving accident. I suspect there’s more to it. It’s also possible that David Marcum may have had a deal with Rockweiller Industries, which could entitle him to a portion of the Flor de la Mar.”

  “Suspect,” Wurlheiser said dismissively. “May have. It’s all speculation. Words!”

  “Come on now, John,” said Kruckemeyer. “We’ve turned up no evidence for any of that. It’s just not realistic. We did a good job on the case. Maybe it’s time we put it down.” Many of the partners murmured their agreement.

  But Remington was unmoved. “There are ups and downs in every case, Bob. You knew this was a contingency fee case when we took it. Our money comes at the end. And I am convinced that we can get significantly more than two or three million dollars if we stay the course.”

  “Maybe so,” said Wurlheiser, “but it’s not worth all of this collateral litigation. I say we take the money, write this off as a win, and move on. Let’s vote.”

  At the first conflicts meeting nearly a year ago, most of the partners had voted to take the case. But now the tide had turned. Wurlheiser’s fear was infectious. Bock’s pressure tactics were working.

  Wurlheiser raised his hand to vote for recusal. Other partners reluctantly followed. The vote had a herd-like feel, as the partners looked around to gauge what everyone else was doing. Eventually, it became clear that more than half the room was in favor. At t
hat point, more hands started to go up.

  Kruckemeyer still had his hand down, along with a few others. He looked guiltily at Remington. But it was clear which way the wind was blowing.

  Wurlheiser began to tally the vote. All he needed was a simple majority, and he had it. I didn’t know what I was going to do. I could tell Ashley not to take the offer, but the firm would probably drop her anyway. They might even drop me too. I didn’t have any power here. Hands continued to go up. Harder and I exchanged desperate glances, and I began to despair. How was I going to break this to Ashley? Was this the end of the line?

  Then John Remington slowly stood up from the table. Everyone turned to him.

  “We’re not doing it,” he said quietly.

  “John,” said Kruckemeyer, “Be reasonable. This is a firm decision. We have to make it together. You know that.”

  “No, it’s not a firm decision. I’m lead counsel on the Marcum case. That means the only one that settles or recuses is me. And I say no.”

  “This is outrageous!” said Wurlheiser. “You have to abide by the vote of the partners. It’s in the bylaws. You know that damn well. We can go to the court on behalf of the firm if we have to and withdraw from the case.” The other partners nodded. It was true.

  “Go ahead,” Remington told him evenly. “I’ll oppose. Judge Graves would have to approve any withdrawal under Rule 74. We’ll see how that circus plays out.”

  This comment sparked general outrage at Remington, as the other partners spoke up in favor of Wurlheiser, or at least in favor of consensus in decision making. Even I was a little shocked at this display of brinksmanship.

  But Remington didn’t move a muscle. When the hubbub died down, he spoke. “Like I said, we’re not withdrawing, and we’re not going to get pressured into any lowball settlement. We have a duty to zealously represent our client, and that’s exactly what we’re going to do.” Then he leaned forward. “And if you all don’t like it, you can go to hell.”

  With this, Remington got up and stalked out of the room, ignoring the storm of shouts and recriminations thrown at his departing back.