by Dave Gerard
“It fits,” I whispered. “A set of uncharted islands on the way to Goa. That’s what Roberto wrote. These wouldn’t have been on any maps in 1511.”
“But how do you know that’s the spot he’s talking about?”
“Where else could it be?” I said impatiently. “Roberto’s account speaks of a primitive tropical island on which they were nursed back to health. It would have been lightly inhabited. There’s nowhere else that fits the description.” We swept across the map, zooming around and looking for other possible locations. “Do you see anywhere else?”
“No,” she admitted. “But…there’s no way,” she said.
“Why not?”
“I just…you can’t just draw a line on a map and find some islands and then theorize that an ancient ship sank there!”
“But that’s exactly what your brother did. And he was right.”
Ashley and I spent the rest of the day going through the records to see if there was anything else. There wasn’t. We weren’t supposed to take copies or pictures of the records, so Ashley copied out Manuel Roberto’s account by hand.
We emerged from the Archives in the late afternoon. It was sunny outside. I squinted, unused to the bright light after spending all day underground. I heard birds chirping. The world seemed somehow ethereal just then. I felt that we had uncovered this great secret, hidden away deep in the bowels of history. We alone knew something significant, the location of this great treasure, which held the whole world in its thrall.
I pulled out my phone. I had missed calls from Cindy and Harder. They must have tried to reach me earlier. We didn’t always get good reception underground in the Archives.
I also checked my email. I hadn’t looked at it in a while, engrossed as I was with the confession. I scrolled through a couple dozen emails about the case and various other things. Then I noticed that two court orders had been entered just a few hours ago, involving our claims. I frowned and clicked through the link to download them.
My stomach tightened into a knot when I read the title of the first order. It was called “order regarding motion for crime-fraud exception to attorney-client privilege.”
A thrill went through me as I opened it, and my heart began to pound. Here it was. The order we had been waiting for. The order that was going to reveal the death memo and blow the case wide open. I could barely stand it. I eagerly began to read.
Before the Court is the Estate of David Marcum’s Motion to Compel Production of Attorney-Client Privileged Information Pursuant to the Crime-Fraud Exception. The Court has reviewed the motion, as well as any responses and replies thereto.
The attorney-client privilege is one of the bedrock principles of our legal system. It facilitates the free flow of information between attorney and client, which is essential to effective representation. It is not to be taken lightly. Without the privilege, the client would be unable to freely recount the facts of a case with the lawyer, which would damage the right to a fair defense.
Therefore, exceptions to the attorney-client privilege are narrow. In this instance, the Marcum Estate has presented evidence that Rockweiller’s witnesses have lied under oath, and argue that the crime-fraud exception should be applied. This evidence comes in the form of deposition testimony and equipment records, which the Court has reviewed at length.
Having considered the evidence, the Court concludes it is not sufficient to invoke the crime-fraud exception. Although it is a close case, and the Court has serious questions regarding the truthfulness of Lloyd Gunthum and others, the evidence does not warrant the wholesale abrogation of the attorney-client privilege. Although some privileged documents may have tantalizing names such as “death memorandum,” that is not sufficient reason to lose the sacred shield of privilege.
The Marcum Estate will have every opportunity to cast doubt on the veracity of Mr. Gunthum and other Rockweiller witnesses during trial. The Court has no doubt that the Estate will ably do so. Accordingly, the Marcum Estate’s motion is DENIED.
It was signed by Judge Graves.
I felt faint. Like I was about to fall. I needed to sit down. “What’s wrong?” Ashley said, concerned. I didn’t answer her. I cast about for somewhere to sit. I saw a bench on the grass a few yards away. I made my way there unsteadily and sat down.
I didn’t know how to tell Ashley. I just handed her my phone. Then I sat silently while she read the order. I felt numb.
“I don’t understand,” she said after she finished reading. Then she read it again, as if it might say something different, or make more sense the second time around. “I thought we had this. It was so obvious that Gunthum was lying. Everyone in the room knew it. How could the Judge not see that?”
I shook my head. I had no words to answer.
Maybe it was the transcript, I thought. Things sometimes appear differently on paper than they do in real life. We had attached the video, but Graves might not have watched it. Maybe it was our brief. Maybe it wasn’t good enough. Maybe Badden & Bock’s was just better. Maybe it was what Judge Graves ate for breakfast. I didn’t know.
I saw my phone vibrating in Ashley’s hand. I was getting a call. It was Remington. She handed it to me. Exhilaration and sorrow vied for control of my emotions as I answered it.
“Jack,” said Remington.
“John. I just read the order. On the memo. It’s terrible. I can’t believe it. But I’ll get to that in a minute. Listen. You’re not going to believe this. We found it.” The words were coming out faster than I could stop them, faster than I could reasonably explain. “We figured it out how Marcum found the Flor de la Mar. And more than that. You’re not going to believe this. I know where it is. It was all in the Archives.”
“Jack,” he said again. “Hang on.”
“Alfonso de Albuquerque never intended that the Flor de la Mar reach Portugal,” I said, talking over him. “He—”
Remington cut me off sharply. “Jack, stop before you say another word. You need to listen to me.”
I stopped, confused. “What is it?” I asked, finally paying attention.
“Have you seen the other order that came down today?”
“No. I just read the first one. The privilege order. I can’t believe he denied our motion. It’s total bullshit. I—”
“You need to read the second order.”
“Okay. I’ll download it in a minute. I’ve just been caught up in the—”
“We lost the disqualification motion. The court has disqualified us from further work on the case.”
“I’m sorry, what?”
“We’ve been disqualified.”
I couldn’t comprehend what he was saying. It just didn’t register. “What do you mean? I don’t…the disqualification motion? But we filed a response to that.”
“We did.”
“Do you mean Wurlheiser? Did they…but Kruckemeyer was blocking the vote, right? I thought we had more time.”
“No. I’m not talking about the firm. I’m talking about the court. Rockweiller won their motion to disqualify. It’s Judge Graves that disqualified us, not David Wurlheiser.”
“But…” my head spun as I tried to wrap my head around this. How could this have possibly happened? “There’s no way,” I said. “It was a bullshit motion. You know that. We put up a great response. I just…”
“I know,” Remington said heavily. “It shouldn’t have happened. I think it was the wrong decision. By a mile. But unfortunately, that’s the way it came down. A judge doesn’t always see things the way you would like, or even see clearly sometimes. This is why I was concerned about taking the case from the get-go.”
“But we’re on the verge of…we’re so close. I just, I…” I stuttered on for a few more sentences. “After all this?” I said wrenchingly.
“After all this.”
Ashley caught the look on my face an
d knew something was wrong. Something worse than having our motion for a crime-fraud exception denied.
I turned away. I couldn’t face her just then. I was gripped with a sense of unreality.
“I…what do we do now? Are we going to file an emergency appeal? A motion for reconsideration?” I said to Remington.
“We’ve been discussing it. But it’s unlikely that we would win.”
“Surely there’s something we can do. Some procedural tactic…”
“No,” said Remington with finality. “I’m afraid we need to steel ourselves for the reality. Whatever information you found may be great for Ashley, but some other lawyer is going to have to run with it.”
I cupped my hand over the phone and turned farther away. “How am I going to break this to her?” I asked.
“Do it now. Don’t keep her in the dark.”
I didn’t say anything for a few beats.
“We’ve got forty-eight hours to transition off the case,” Remington told me. “We need to collect all of our files from the hotel by then and give them to Ashley. Then it’s pencils down.”
TWENTY-NINE
It was in a state of shock and unreality that I sat on the bed in my Galveston hotel room. There were papers and binders everywhere, making the place look like a recycling facility. I tried to bring myself to start the cleanup. But I couldn’t do it. I couldn’t come to terms with what had happened.
We’d been on the case for nearly a year now. I thought back to the little pro bono clinic in Houston where it all started. I thought about how far we’d come. How much I’d learned about David Marcum. About Rockweiller Industries. About the Flor de la Mar, and the unimaginable riches buried deep beneath the ocean. About Ashley. And now, at the zenith of the case, after holding our own against all of the countries and corporations ranged against us, with the whole world watching, we had been disqualified. I couldn’t believe it.
Harder and Ashley were sitting with me in the hotel room. We had spent the day going over the nuances of the case, so Ashley would be prepared to take it forward with her new lawyers. Remington and Kruckemeyer had spent the last two days on the phone, talking to lawyers they knew who could take it over. There was no shortage of good ones for Ashley to choose from. Better than us, probably. Because of the high profile of the case, attorneys were beating down our door trying to get a piece of the action. Some of them had even been calling Ashley directly. I promised her that we would find her someone great.
But when I said that, she just shook her head and looked me straight in the eye and said “I don’t want any other lawyer but you.” It made my heart jump near out of my chest to hear that. I tried to come up with something to say, but I couldn’t, and so we just gazed at each other for a while. Harder looked away uncomfortably and began picking up binders.
Harder was deeply miserable. He blamed himself for the disqualification, I knew. But it wasn’t really his fault. Badden & Bock would have filed their motion anyway, with or without Harder’s information. Part of the blame lay with the firm. We knew the risks going in and chose to accept them. But mostly, I blamed Judge Graves. It was a bad decision. No two ways about it. There was no conflict, and I couldn’t understand how he had gotten it so wrong.
Ironically, I knew that a state court judge like Gleeson never would have disqualified us from the case. He would have been too conscious of the blowback. Disqualify a whole law firm, and every lawyer in it would hold a grudge against you for years. Gleeson would have denied the motion to disqualify and let the case play out. Oh well. Roads not taken.
The rest of the team had said their goodbyes earlier. I ran into Loudamire in the hall. I could swear she almost seemed sad to see me go. “Bye, Jack,” was all she said, in a quiet voice.
We finished cleaning out the hotel room at 11:30 p.m. We had until midnight to exit the case. We stood up to say our goodbyes.
“Well, I guess this is it,” I told Ashley, struggling to hold back my emotions. I saw her fighting back tears. “I hope we can be friends,” I said. “Even if I can’t give you legal advice anymore.” She nodded, her lips pressed together tightly. We embraced and held each other for a long time. Then we stepped apart.
“At least you can get back to your contract work now, Jack,” Harder joked, trying to ease the tension. I shook my head. He had the worst timing.
“What?” said Ashley, confused.
“Never mind,” said Harder, reddening.
“It’s an old joke,” I explained. “Technically, I’m an independent contractor for the firm. Like your brother was for Rockweiller. I get paid on a 1099 form, is all it means. Harder likes to give me grief about it.”
“Sorry,” said Harder, embarrassed. “I don’t always have the best timing. I’m just kidding, though. You know that I think you’re a great lawyer, Jack. Really. You’re basically a member of the firm.”
“Thanks buddy,” I said, touched.
I expected the firm would bring me on as a full-time employee after this. Disqualification or no, I’d done good work on this case. Kruckemeyer and Remington knew it. The other partners knew it too. No more 1099 for me. I was basically a member of the firm.
But then I froze as something occurred to me. Basically a member of the firm. But not a member of the firm. Of course, I thought, realization dawning. I remembered the ethics seminar I had taken months ago. About imputation of conflicts. I dropped the binder I was carrying.
“I’m not a member of the firm,” I whispered. “I’m a contractor. That’s it.”
“What are you talking about?” said Ashley.
I turned to her. “Do you still want me on this case?” I asked urgently.
“Of course,” she said.
“Even without the rest of the firm?”
“Yes! You know I do. But I thought you’ve been disqualified.”
“The firm has,” I said. “But I’m not a member of the firm.”
I could see Harder catching on. “I’m an independent contractor for HH&K,” I explained. “Practically, it makes no difference. I work full time. I get paid the same. I’m a regular employee in all but name. But if you want to get technical, I’m not actually part of the law firm. Harder, quick, pull up the ethics rules.”
Harder whipped out his laptop and looked up the rule on imputation of conflicts. An imputed conflict was when the conflict of one lawyer carried over to the rest of the firm. It was Rule 1.10. Harder read the rule aloud: “While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so….”
“While lawyers are associated in a firm,” I repeated. “I’m not in the firm. That means that whatever conflict the firm has doesn’t involve me! I can continue on the case!”
Harder squinted at the text of the rule. “Are you sure about that?” he said. “You’re still associated with the firm, right? Even if you’re not in it. I feel like the spirit of the rules might bar you. And these are the American Bar Association rules. The Texas rules may be a little stricter—”
“Fuck the spirit of the rules,” I said savagely. “We go by the letter. And the rules say in a firm, not with a firm. Hell, I wasn’t even at the firm when Wurlheiser did the Rockweiller work.”
“That’s true,” he said, nodding. “It’s colorable.”
“What are you going to do?” Ashley asked. “Are you going to ask the judge if you can stay on?”
“No,” I decided. I had a good argument. Maybe it was a winner, maybe it wasn’t. But either way, it was enough to me give legal cover for what I had to do. I didn’t trust Graves to make the right decision, and it would be better to ask for forgiveness than for permission. Let him ream me over it later if he wanted to.
I stood up straighter, and my voice took on more formal tone. “Judge Graves has disqualified the law firm of HH&K from repr
esenting you in this case,” I told Ashley. “He has not disqualified me. I have concluded, based on the ethics rules and the applicable law, that the conflict and the disqualification order does not apply to me. So pursuant to my duties as an advocate, I will continue to zealously represent you to the best of my ability. If you want me to, that is,” I added, feeling a little abashed.
“Yes!” she said to me, tears streaming down her face. I smiled and drew her in for a hug. Then out of the blue, she leaned forward and kissed me full on the lips. My eyes widened.
“I…” I stammered after she pulled back.
“Don’t say another word, Jack, about the ethics rules right now,” she warned. “Just shut up and kiss me.” Harder looked away, but I caught him smiling.
It was sound legal advice, and I acted on it.
By the time the clock struck midnight, we had everything packed up and ready to go. I felt ablaze with new energy. We had debated whether to tell the firm what I was doing, but decided not to. They couldn’t help with it anyway, and I didn’t see the point.
Just as we were getting ready to leave, we heard a sound from next door. A crash and a thump. Like something had broken and fallen. We froze for a minute, listening. But we didn’t hear anything further. I exchanged worried glances with Harder. The sound had come from Loudamire’s room. What if she had been listening to us?
“She probably dropped one of those huge deposition binders she’s always lugging around,” I guessed.
“I don’t know,” Harder said doubtfully. “That definitely sounded like something breaking.”
I put my ear against the wall. I still heard no sound from Loudamire’s room. It was dead silent. Harder and I looked at each other, wondering what to do. But Ashley didn’t hesitate. She marched straight out into the hallway and up to Loudamire’s door. Harder and I followed reluctantly.