Unfit to Practice

by Perri O'shaughnessy

  She supposed people whose family members had wasting diseases went through something similar every day. Each day, they got up, leaving behind someone, maybe a lover, maybe a parent, in the bedroom, maybe crying, maybe screaming. They straightened a tie or stocking, and walked out the door into life moving on. The mountain grew cold and accepted the snow; the lake roughened under the wind.

  At four-thirty, Kevin Cruz did not appear. Instead, a courier delivered a letter, or rather, the copy of a letter.

  Addressed to the California State Bar.

  To Whom It May Concern,

  I feel that I must inform the state bar of a serious breach of ethical duty by my attorney, Nina Reilly, Esquire, of South Lake Tahoe. While representing me in a custody case she engaged in a sexual relationship with me.

  As a result, it’s my feeling that her representation of me was compromised because of personal feelings and entanglements that made her objectivity impossible. I lost temporary custody of my children, and will probably lose permanent custody as a result of her immoral behavior, which made it hard for me to concentrate on how my case should be properly handled. I also believe that, for her own personal reasons having to do with maintaining a long-term serious relationship with me, she didn’t want me to get custody at all.

  As an attorney practicing in California, she has a duty to uphold the highest standards of ethics and legal behavior, and in those two arenas, she has failed. I respectfully request that the state bar open an inquiry into her legal practice, which I think will result in the exposure of further illegal or immoral activities.

  I am available for any questions and look forward to your response.

  Sincerely,

  Kevin Cruz

  Attached to the letter was another letter, this one an original, from Kevin Cruz, firing her as his attorney of record.

  Without a word, she handed the letters to Sandy.

  Sandy read the first letter, fixing on every word, while Nina struggled to keep control. What she wanted to do was laugh, laugh loudly, uproariously-

  “Sure hope at least he was hot in the sack,” Sandy said.

  That did it. Nina started to chuckle, and that grew into laughing, and she went to the window, tearing up from her laughter, and said, her back turned to her secretary, “Sandy-ha, ha, ha-what a staggering day of heartbreaking shit. Sandy, I’m so screwed.”

  Silence. Then, “I find that objectionable,” Sandy said calmly.

  Nina stopped laughing, although she had to work hard to do it. “I’m-I’m sorry if I offended you,” she managed to say.

  “It’s not offensive enough,” Sandy said. “Change it to you’re fucked, and I’m with you.”

  Their laughter boiled up and overflowed. Sandy had a weird laugh, a sort of hupping laugh, hilarious really. “You want-hup, hup-some more cognac?”

  “That’s a good one-ha, ha, a new tradition-I’ll pass-”

  “Save it for-the-hup, hup-boyfriend-good idea,” Sandy said. “Hoo, boy. Ah.” She dug a tissue out of a box on Nina’s desk and wiped her eyes. “Girl,” she said, “life is cold.”

  Nina sobered. “You’ve got that right.” She sat down heavily. “Kevin. Kevin. Why?”

  “I never liked that guy.”

  “I did, at first.”

  “How’s he think he’s going to get away with this? Don’t you have to be able to prove what you say?”

  Nina said, “I’ll bet he’s got proof.”

  “Of what? That very bad scene you told me about?”

  Nina nodded. “Photos or a video, carefully cut. Two scenes. One outside the restaurant across the street. A clinch. The other, at his condo. Heavy petting. Carefully edited. Heck, he’s probably got love letters. Like my new Vang intake notes that I didn’t write.”

  “Why would he do this to you?”

  “I lost the hearing. That’s enough reason, if you’re unbalanced and obsessed. But wait, the files were taken the day before we lost. He lost because the files were taken. So-he didn’t take the files. This is-could this be separate?”

  “Can any of this help him get his kids back?”

  “I don’t see how. From a judge’s point of view, it makes him look worse.”

  “He’s a cop. He would know how to steal a car. Maybe he’s got some gripe against you about some old case.”

  “Could be.”

  “He’s your enemy.”

  “No question, but, Sandy, today’s pattern is no coincidence. Three files, three disasters all at once, as if timed for maximum impact. Kevin’s just one of the three. Maybe he has been set up, too.”

  “You know that powwow Joe and I organized? Someone told a story there about a big bird that lived at Lake Tahoe that ate the people. An old man was carried up to its nest and found himself lying next to a corpse. He took a piece of obsidian he had with him and stuck it inside the corpse. Then he watched the bird finish off the corpse and listened to the bird howling when he felt the pain of that sharp rock inside. When the bird died, he cut off its wing and used that to get back down to the lake. He told the people the bird was dead and they celebrated. Now they were safe.”

  “I’m not sure why you’re telling me this story, Sandy.”

  “Put some rocks in your pocket. Don’t be afraid to play dirty.”

  “I have to call Jack.” Nina went into her office. The California State Bar would be calling soon. She needed to get ready.

  Book Three

  March

  She walked to the podium, warm under the spotlights. In front of her on a high dais sat three justices of the First District Court of Appeals, San Francisco Division, three wise old men in solemn black robes.

  Today was her first day in court.

  They watched her, maybe a little curious because they had never seen her before. She set her notes in front of her, the tabbed background material, the appellate briefs. Behind her and to the side she felt the eyes of the deputy attorney general opposing her on the appeal and the many other lawyers here today to argue their cases. Her mouth felt full of cotton and her head felt-empty.

  She had so much to fear, and so much at stake, and yet this wasn’t even her case. She was a substitute for another lawyer who was in the hospital.

  For one whole week she had immersed herself in the issues, driven down to Soledad Prison to talk with the client, studied every case in the briefs, reviewed the evidence. The voice in her head that always stood in the way got louder every day, saying, you can’t do this. You’re not good enough. You haven’t had enough time handling this case. You’ll be tongue-tied and the whole court will laugh at you.

  You will lose.

  But other times, as she sat at her desk in the lamplight long after closing hours, searching for just the right words to persuade the justices that her client deserved another trial, a new feeling would well up in her: a determination to win. She couldn’t fail him. She had to act as a conduit, expressing the principles that would result in justice for him.

  She dealt with the seesaw between fear and determination by working harder and longer. The night before the argument, at 4:00 A . M ., Bobby woke her up, crying. She gave him some water and led him to the bathroom, then helped him back into his little bed.

  I have a child, she thought to herself before going back to sleep, I have this child and have kept him alive. What could be harder or more important than that?

  The morning scheduled for arguments in her case dawned in the traditional San Francisco way: foggy, cool, mysterious. She dressed in her black suit and wore her mother’s watch. At the courthouse downtown, standing outside the doors, Nina experienced one more moment of savage fright. A man’s liberty was at stake. His defense was entrusted to her, and who was she? Just a young woman without much self-confidence, not brilliant, not impressive, not experienced-who was she against the state of California?

  Her case was called. She walked to the podium, under the lights. She laid down her papers and set her mind on her client, Klaus, her mother, all the peo
ple who had supported her over the long, lonely years and brought her to this place.

  She opened her mouth and began to speak.

  EXHIBIT ONE

  OFFICE OF TRIAL COUNSEL

  STATE BAR OF CALIFORNIA

  Gayle Nolan, NO. 101447

  Attorney at Law

  555B Franklin Street

  San Francisco, CA 94102

  555/698-4947

  THE STATE BAR COURT

  THE STATE BAR OF CALIFORNIA

  HEARING DEPARTMENT-SAN FRANCISCO

  In the Matter of

  Nina F. Reilly, No. 379168

  A Member of the State Bar

  TO: NINA FOX REILLY, Respondent herein:

  IF YOU FAIL TO FILE AN ANSWER TO THIS NOTICE WITHIN THE TIME ALLOWED BY STATE BAR RULES, INCLUDING EXTENSIONS, YOU MAY BE ENROLLED AS AN INVOLUNTARY INACTIVE MEMBER OF THE STATE BAR AND WILL NOT BE PERMITTED TO PRACTICE LAW UNTIL AN ANSWER IS FILED.

  You were admitted to the practice of law in the state of California on January 12, 1994. Pursuant to Rule 510, Rules of Procedure of the State Bar of California, reasonable cause has been found to conduct a formal disciplinary hearing, commencing at a time and place to be fixed by the state bar court (NOTICE OF THE TIME AND PLACE OF HEARING WILL BE MAILED TO YOU BY THE STATE BAR COURT CLERK’S OFFICE), by reason of the following:

  COUNT ONE

  1. In 2001, you were a sole practitioner in the law firm of Law Offices of Nina F. Reilly, Attorney at Law, 2489 South Lake Tahoe Boulevard, South Lake Tahoe, California.

  2. While acting in your duties as an attorney, you occupied a position of trust for many clients. For our purposes here, one client group, consisting of Brandy Ann Taylor, Bruce R. Ford, and Angel Guillaume, is represented in this count.

  3. Beginning on September 6, while serving in a lawyer-client relationship, and with a primary obligation to preserve the confidences and secrets of your clients, for the separate parties as referenced above, you failed to protect client information as required under California Business and Professions Code section 6068 (e) by leaving client files in an unlocked vehicle, which was subsequently stolen from you. You failed to implement the proper safeguards to ensure that client information remained confidential, a violation of your duty to perform competently.

  4. Disclosure of the contents of those files has caused harm to your clients. After the loss of your client files, these three individuals were threatened and attacked by a man, Cody Stinson, whom they revealed in private conversations with you, their attorney, they had witnessed fleeing the scene of a murder.

  COUNT TWO

  1. While acting in your duties as an attorney, you knowingly assisted in the commission of a fraud against the Heritage Life Insurance Company Incorporated, by Kao Vang, former owner of Blue Star Market located in South Lake Tahoe, California.

  2. Representing Kao Vang in an insurance claim against Heritage Life, you knew that arson had been committed by your client for the fraudulent purposes of obtaining an insurance settlement. The gross amount of that settlement, since paid in equal portions to Kao Vang and his wife, See Vang, was $210,000.

  3. As a result of your personal, speedy delivery of funds to Kao Vang, he left the country before the fraud was apparent, making recovery of the fraudulently obtained funds difficult or impossible. The funds delivered to See Vang have been attached awaiting disposition of this count.

  3. Your collection of any portion of that settlement constitutes a separate fraud.

  COUNT THREE

  1. While representing your client, Kevin Cruz, in a custody case, you engaged in a sexual relationship with him.

  2. You employed undue influence in entering into the relationship, and implied that this level of intimacy was required in order for you to continue representation.

  3. In violation of Rule 3-110 of the Rules of Professional Conduct of the State Bar of California, you continued to represent this client, even though the relationship damaged and prejudiced the client’s case, and resulted in the loss of temporary custody of his two minor children.

  By committing the acts described above, you willfully violated your oath and duties as an attorney. In particular, you violated California Business and Professions Code section 6068 (e); and Rule 3-110 of the Rules of Professional Conduct.

  20

  “I N THE MATTER OF REILLY,” Judge Hugo Brock said in a soft voice. He had climbed the stairs to his seat with grave eyes downcast, without a word to his clerk. Decorum above all, Nina thought. He’s the type who worries about losing control in the courtroom. How will he handle Jack?

  More to the point, how will Jack handle Judge Hugo Brock? She had asked Jack this very question. His answer was, “Don’t worry. Hugo beats the alternatives.”

  The huge digital clock on the judge’s dais ticked off the seconds before the momentous switch to 9:30 A.M. In this moment before the hearing began, close together in the tense, windowless room, they all sat at attention, ignoring one another. The judge’s clerk, a girlish-looking woman with festive auburn hair and a midcalf-length blue skirt slit demurely up to her knees, paid no attention to anyone. Black headphones covering her ears, she stared at her computer, with them corporeally only. She might even be working on some other matter, transcribing the words of some other poor practitioner who had suffered in this very chair the previous week.

  So defendants felt like this! Nina glanced at Gayle Nolan, the chief trial counsel. Jack called her Pit Bull Nolan, more or less an admission that he considered her competent. In navy wool, glasses low on her nose, her hair in a gray pageboy, she had a haggard expression. Retirement could not be far away, assuming that the state bar still gave its staff retirement benefits. The big money no longer rolled in from California’s attorneys, but the criticism of the whole disciplinary system got louder every year.

  Now, from the hot seat, Nina began to see why. Salaried employees of the not-very-large entity, Gayle Nolan and Hugo Brock were coworkers. Their motivations should be radically different, exemplifying the enormous gap between judicial and enforcement branches, but in the end these two both represented the goals of the California State Bar.

  And what were those goals? The president of the state bar had said in a speech Nina attended, “At the state bar, public protection is our number-one priority.”

  This seemed a perversion to many California lawyers, who thought the state bar dues they paid each year should go to an organization with the number-one priority of supporting and encouraging them. When had the focus become weeding out the bad apples in the profession? Whatever happened to stabilizing the wobbly apples and protecting the ripe apples? How could the judge and the prosecutor work out of the same small, half-crippled system and not walk in lockstep?

  As Nina whizzed through these thoughts, Gayle Nolan glanced back at her through designer glasses so enormous, so thick, so encrusted with decoration that the face behind them blurred. A blessing.

  Her own eyes were bothering her, so she put on her horn-rims. With surgical fussiness, Jack wiped his glasses on his handkerchief, allowing not one mote of fuzz. Every single person in that courtroom was viewing the world through a layer of polymer or glass.

  She looked down and discovered she was wringing her hands. She made an effort to sit still and betray nothing. Whatever she did, look scared or look calm, she felt that she looked guilty. Such are the thoughts of a defendant.

  “Let’s start by, uh, clarifying the order of proof. I understand we have a change in the usual presentation, Counsel,” Judge Brock said.

  Gayle Nolan stood up. “Yes, we do, Your Honor. As you know, this is a bifurcated hearing, with the first part presenting the culpability portion and the second part, mitigation. Right now we are just dealing with culpability. We have three sets of complaints here in three matters. Mr. McIntyre and I have agreed to put on each of the matters separately. I will put on the prosecution witnesses for Count One and Mr. McIntyre will cross-examine each witness and we will complete all the proof for th
at count before moving on to Count Two. If that is all right with the court.”

  “So we will look at the Brandy Taylor matter first?”

  “Right.”

  “Actually,” Jack said, moving in to make his first impression, “we agreed to start with Officer Scholl, the officer who took the police report involving the stolen files. Her testimony relates to all the cases.”

  “I was getting to that,” Nolan said. “That’s right, we will begin with Officer Scholl.” She clamped down on the words, as determined as a basketball player getting the ball back for her team.

  “Sorry,” Jack said. “Didn’t mean to step on your toes within the first two minutes.” He smiled, but the judge and the prosecutor stuck to their poker faces.

  “Fine,” Judge Brock said. “Are we ready, then?”

  “Ready,” Nolan said.

  “Ready, Your Honor.” Jack patted Nina’s hand.

  “Call Officer Jean Scholl.” Officer Scholl hustled in. “Raise your right hand.” She swore to be truthful, then launched into a minor complaint about having to take the whole day off to be in San Francisco for this hearing. The uniform accentuated her strong build and handsome unadorned face. Setting her clipboard in her lap, she gave Nolan, who was standing, her full attention.

  “Good morning. I’m Gayle Nolan, I represent the State Bar of California.”

  “Good morning,” Scholl said.

  Over the previous several months, Paul had uncovered some more interesting details about Officer Scholl. Early in her career, she had worked with Kevin Cruz. On one occasion, Scholl had been along for the ride when Kevin Cruz busted a group of three young men for cocaine possession with intent to sell. The bust netted Kevin his first and only promotion, but rumors flew.