“Morning, guys!” Judy waved as she approached. “I made muffins!”
“Good morning,” Bennie and Mary said politely, a split second apart.
Mary returned her attention to Bennie. “That’s my point. It’s not weird that my father was here. I grew up with the plaintiff and went to his wedding. I went to his wife’s funeral and—”
“Hey guys!” Carrier interrupted, arriving. “Did you not hear that I made muffins? Actual banana-nut muffins! I’m like a housewife without the house and the wife!”
Bennie and Mary fell suddenly silent, but Judy bubbled over.
“Also look at my new jeans skirt! How cute am I?” Judy spun around with her arms outstretched. She had on a hot pink T-shirt that matched her hair and a faded jeans skirt with an embroidered peace sign.
Mary managed a smile. “Very cute.”
Bennie did a double-take. “I owned a skirt exactly like that. I made it from my bellbottoms. It had a white peace sign, too. Where did you get that?”
“At a vintage shop on Pine Street.”
“Vintage?” Bennie looked at the skirt more closely. “My God, I think that’s my skirt!”
“Seriously?” Judy’s eyes flew open, an incredulous blue.
Mary burst into laughter. “How funny is that?”
“Not funny at all,” Bennie said, but it was a little funny, so she forced a chuckle. She didn’t mind getting older. She was happy with her life and viewed herself as an elder of their tribe. The only problem was that the young-uns didn’t always listen.
Judy must’ve picked up their mood. “Are Mommy and Daddy having a fight? Please tell me that you still love me and it’s not my fault.”
Mary interjected, “We’re not fighting.”
Bennie nodded. “Yes we are. Over an ethical question.”
Judy cocked her head. “What is it? I wrote a comment on ethics in law school. I’ll be the judge. Hey, that makes me Judge Judy!”
Bennie didn’t smile. “Here’s the issue. Can a partner in a law firm sue a subsidiary when another partner in the same firm represents the parent?”
Judy wrinkled her nose. “Please tell me this is a hypo.”
“Is it against the rules?” Bennie asked again, since Judy was a legal scholar, despite appearances.
Judy looked from Mary to Bennie. “I had to research that issue last year. Believe it or not, it’s not a settled question.”
“Terrific!” Mary practically cheered.
“I don’t have time for this,” Bennie said, leaving for her office.
CHAPTER THREE
Mary grabbed Judy, and they hustled into her office, her hopes soaring. The morning sun poured through the window behind her desk, casting a soft light on the pretty antique quilt hung next to her diplomas like a display of girl self-esteem. Mary felt so much better after what Judy had said, but she still wanted to talk it over like they always did. They had worked together since day one, though Mary had made partner while Judy remained an associate, but that didn’t matter. There was nothing better than working with your best friend, even if you had subsequently become her boss. Technically.
“So it’s not against the rules?” Mary asked, closing the door behind her.
“I didn’t say that. I assume you represent the sub?”
“Yes, how do you know?”
“Because Bennie represents everybody and you look vaguely hysterical.” Judy set her backpack on the floor, zipped it open, and slid out a Tupperware container.
“It’s been a long morning, and when I tell you about this case, it will break your heart.” Mary stowed her purse in the bottom drawer and set her laptop on her desk, which she kept orderly. Case files were stacked on the left and correspondence on the right. At the front of the desk were pictures of her wedding, her parents, and her twin sister, Angie, who was a nun on her umpteenth mission in Africa. Mary respected her sister’s decision to save the world but she missed her every day, since they had shared a room, and a womb.
“Get out your copy of the Model Rules of Professional Conduct.” Judy sat down in one of the chairs opposite Mary’s desk.
“I have one of those?”
“Yes. We got them the first day of school. With a pencil case and a protractor.” Judy pried the lid off the Tupperware container, releasing a fattening smell. “My God, it’s like perfume. Do you want a muffin?”
“No, I’m too excited to eat.” Mary started digging through her bookshelves.
“I’m too excited not to eat.” Judy gazed in delight at the homemade muffins on a bed of tinfoil, their golden brown tops studded with nuts. “I take it back, I am a housewife. I’m going to marry myself. I’m ready to make the commitment.”
“Here we go.” Mary located her copy of the model rules and pulled the book off the shelf. It was a maroon paperback, never opened. Still, she considered herself ethical since she knew the basics and went to church every Sunday, which should count for something.
“Go to Rule 1.7, Conflicts of Interest.” Judy took a big bite of the muffin. “Yum, this is so delicious. I do!”
Mary found the rule and read aloud: “‘(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.’”
“Thanks for nothing, guys.” Judy chomped away. “Wow, this is so moist I don’t even need coffee. I’m incredible.”
“‘A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client—’”
Judy interrupted, “An interesting issue is the meaning of ‘directly adverse.’ How much adversity is direct? How much is indirect?”
“Okay.” Mary could hear Judy going into lecture mode. You could take the girl out of Law Review, but you couldn’t take Law Review out of the girl.
“Keep reading.” Judy came over, spilling crumbs on her T-shirt.
“‘Or if there is significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibility to another client, a former client or third person or by personal interest of the lawyer.’” Mary thought a minute. “What’s that mean?”
“Not applicable here.” Judy took another bite, and another crumb dropped on her chest. In a minute, she’d be wearing the muffin.
Mary wondered if the “personal interest” part might be relevant, since she was personally interested in representing Simon, but she wasn’t sure that was what the rule meant.
“Skip ahead. Comment Thirty-Four speaks specifically to the situation.”
Mary flipped to the comment. “‘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.’” She looked up, delighted. “Bingo! That’s me! I can take the case!”
“You would think so, but read the next line.”
Mary looked down. “‘Thus, the lawyer for an organization is not barred from accepting representation adverse to an affiliate in an unrelated matter unless the circumstances are such that the affiliate should also be considered a client of the lawyer…’”
“Stop there.”
“But that begs the question, doesn’t it? The whole issue is if the affiliate is considered a client of the lawyer.”
“Precisely, it’s unclear. It could go either way.” Judy popped the last of the muffin into her mouth, wiped her fingers on her skirt, then opened Mary’s laptop and started searching online as she spoke. “So I worked backward and researched how Rule 1.7 was drafted, like a legislative history. I thought that would shed some light on the subject.”
“Good idea.”
“I know. And I can bake too. I wonder what I’ll get myself for a wedding present.” Judy searched online. “Anyway, I did research into the ABA Opinions, because there’s a Committee on Ethics and Professional Responsibility that issues formal opinions on ethical matters, decided in pan
els just like judges.”
“Oh.” Mary had no idea. She read over Judy’s shoulder.
“And I found this old panel decision that was completely on point, number 390. See?” Judy pointed to the screen. “‘The Committee has been asked whether a lawyer who represents a corporate client may undertake a representation that is adverse to a corporate affiliate of the client in an unrelated matter, without obtaining the client’s consent.’”
“That’s us. Nobody’s talking about consent.” Mary made a mental note.
“The majority says that this is a problem created by the growth and consolidation of modern corporations—”
“That’s what I said!” Mary felt validated. “We can’t be conflicted out of representing every sub of our parent companies. And what did the Committee decide?”
Judy checked the screen. “The majority allowed the representation, but it held that whether a lawyer may represent a corporate affiliate of his client ‘doesn’t depend on any clear-cut rule per se but rather on the particular circumstances.’”
“So you look to the ‘particular circumstances,’ whatever that means?”
“Yes, and the dissent said—”
“There was a dissent? On an ABA panel?”
“These are lawyers, remember? Everybody has to pee on the hydrant. We’re just terriers with J.D.s.” Judy rolled her eyes. “The dissent would not have allowed it, saying that ‘the opinion opens a Pandora’s box of unintended consequences which most assuredly will return to vex us in the future.’ And here we are, being vexed.”
Mary couldn’t smile. “We’re worse than vexed.”
Judy straightened up. “This Opinion led to Rule 1.7, which is what we started out with. In other words, in typical lawyerly fashion, there is no clear answer. It depends on the circumstances. The totality. The context.”
“So the ethics rules offer no clear-cut guidance. Bennie is wrong that it’s against the rules.”
Judy smiled crookedly. “But she’s also right that it’s against the rules. It depends on the situation.”
“Why was she so sure the rules go her way?”
“She’s old-school. The rules provide that a lawyer has a hundred percent duty of loyalty and confidentiality to a client. So it follows from that, logically, that if a parent company has a sub, which is part of the same legal entity, then the lawyer should have the same duty of loyalty and confidentiality to the sub.”
“Right.” Mary mulled it over.
“And Bennie’s also right that a client of one lawyer in a firm is a client of every lawyer in the firm. That’s been true since forever.” Judy cocked her head. “Who’s her client?”
“Dumbarton.”
“Oh man, you’re kidding, right?” Judy moaned. “They’ve been a house client for a long time. She’s buddy-buddy with the CEO. They have a small in-house department and they farm out the major cases to big firms like Dechert and Morgan Lewis. He takes her advice on whom to hire. She even reviews their bills.”
“How did I not know this?” Mary blurted out, but she knew how. She had her own client base and so did Bennie. They worked in the same firm, but independently, and the twain never met.
“I’ve done work for Dumbarton, too.” Judy frowned.
“You have?” Mary asked, dismayed, if not surprised. Judy had clerked at the federal appellate level and was their resident genius, with impeccable academic credentials, Stanford and Boalt Law School. She could have taught anywhere or clerked for the Supremes.
“Bennie sends me a contract question now and then, and I look over any appellate brief that outside counsel files in the big cases.”
“For the parent or for one of the subs?” Mary should have realized it because Judy worked on many of Bennie’s cases.
“For most of the subs.”
“OpenSpace?”
“No,” Judy answered, then her blue eyes widened slightly. “Yikes. You want to sue OpenSpace?”
“Yes.” Mary didn’t reveal that Simon was the plaintiff because it would put Judy in a terrible position. Judy had met Simon plenty of times and she knew Feet very well. Mary had told her all about Rachel’s cancer, and she knew Judy would feel as compelled as she was about Simon’s case.
“Then I guess this means we can’t talk about the facts.”
“I guess it does.” Mary recoiled, momentarily stumped. She talked to Judy about everything, and they always bounced ideas off of each other on cases. “But I think we can talk about whether or not I can represent the sub without discussing the facts or merits. Right?”
“Yes, we can.”
“For example, under the rules, the test is the totality of the circumstances. If you look at them as a whole, I can take the case.”
“How so?” Judy folded her arms, leaning back against the desk.
“I never did any work for Dumbarton, OpenSpace, or any of the other subs. I don’t even know what they do.”
“That doesn’t matter under Rule 1.10, the imputation rule. Each lawyer in a firm is charged with having the knowledge of any lawyer.”
Mary groaned.
“Let me get you up to speed on Dumbarton. It’s a commercial construction company, building offices and hospitals. They’ve grown like crazy and are integrating vertically.”
“Which means what?” Mary was forgetting her antitrust law.
“They buy companies that make what they need. Some of its subs are associated with construction. WallCo makes drywall, MetalLabs fabricates metal, and PowerPlus makes electrical wiring. OpenSpace makes modular furniture cubicles, and to do so, it buys drywall from WallCo, wiring from PowerPlus, and metal frames from MetalLabs. It keeps it in the corporate family.”
“When did corporations become families?”
Judy didn’t smile.
“Look, I’ve never worked for OpenSpace, Dumbarton, or any of its subsidiaries. I was completely unaware that we represent them—” Mary caught herself. “Rather, that Bennie does. I’m not privy to any trade secrets or confidential business information of theirs, in the least.”
“It’s a wholly owned subsidiary, Mare.”
“I know, but we just read the rule, and when you look at it in context, I don’t see how it’s unethical, as applied to me.” Mary threw up her hands. “I get that you couldn’t represent this client against OpenSpace, but I can. Those are different circumstances. I’m one step removed.”
“True.” Judy frowned. “But it would put you in direct opposition to Bennie. Your partner. What if she takes the case herself?”
“Oh God no.” Mary’s mouth went dry. She didn’t relish the prospect for personal reasons, not to mention the fact that Bennie was the best lawyer she ever met, or maybe that ever lived. Then she thought again. “She’s got a big trial next month, with Sam. She wouldn’t take it herself. Plus, like you said, Dumbarton farms out the work. They’ll send it to one of the big firms.”
“Even if it’s not literally her case, it pits you against her, politically.”
“I know but I can’t help that.” Mary thought of Simon and Rachel, in such dire straits. It was a matter of life or death. A child’s life was more important than a business relationship, especially when the child was Rachel.
“But won’t it be weird between you two?”
“I can deal with it, if she can,” Mary said, meaning it. “I’m friends with opposing counsel in my cases. And Bennie’s the one who always says that business isn’t personal.”
“Why don’t you give the case to somebody else? Refer it out?” Judy’s blonde eyebrows sloped down with concern.
“I can’t, I have to do it myself.” Mary felt a wrench in her chest at the thought of sending Simon away. “Nobody will care about this plaintiff the way I do. It’s kind of, for family. And not corporate family.”
“It’s somebody from the neighborhood, isn’t it?” Judy met her eye sympathetically, and Mary knew that she would understand. Judy was like an honorary daughter to Mary’s parents and she adored The
Tonys, too.
“Simon.”
“Oh no.” Judy sighed. “Then get him somebody awesome. You do so many favors that somebody has to owe you one. It doesn’t have to be you.”
“But I wasn’t going to charge him. He doesn’t have that much money.” Mary brought her up to date about the bone marrow transplant, since Judy already knew about Rachel’s cancer.
“Maybe you can get Simon a discount, out of professional courtesy?”
“Nowadays?”
“I can try and call some of my friends.”
“And piss Bennie off? I don’t want to put you in that position.”
“Mare, this sucks. But you shouldn’t take this case.” Judy touched her arm. “Tell Simon why. He’ll understand.”
“No, he wouldn’t, and even if he did, Feet wouldn’t. Neither would my father.” Mary couldn’t imagine telling Simon she was referring him out, much less Feet, The Tonys, or her father. The word would spread. She couldn’t let the entire neighborhood down.
“So what are you gonna do?”
“I don’t know,” Mary said, though she did. Her chest went suddenly tight. She felt as if a curtain had fallen between them. “I’m just surprised you would take her side.”
“I’m not taking her side,” Judy shot back, pained. “But I don’t want to see you get in trouble with Bennie—”
“I won’t get in trouble with her. She’s not my boss anymore, she’s my partner. And we used to get in trouble with her all the time. We were a united front.”
“Okay, then I meant square off against her. Cross swords with her. You know how tough she is.” Judy recoiled, stung. “Besides, we’re still best friends. We’re united. We just disagree.”
“Is that possible?”
“Of course,” Judy answered, finding a reassuring smile. “Don’t get all Godfather on me. I’m your bestie. I love you.”
“I know.” Mary felt torn. “Sorry I snapped.”
“You need an emergency muffin.”
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