“It’ll stand up. You going to let the South Lake Tahoe D.A.’s office know they’ve got an innocent man locked up?” Jack asked.
“I just put in a call. What they do about Stinson is up to them. You knew she was gonna confess?”
“We didn’t have a clue.”
“You sandbagged me,” Nolan said, but she didn’t show much conviction. She had seen the shock on all their faces.
“You’re buried up to your neck, but it’s your own fault. You brought the charges against this lady,” Jack said with unmistakable triumph in his voice.
“Get this, Jack,” Nolan said. “Maybe the first count goes away, but there are two more. Don’t get cocky.” She continued to ignore Nina.
“Ms. Nolan,” Nina said.
“What?”
“The judge has just come in.”
“What? Oh.” She skittered back to her chair. Judge Brock took his place. Various “X” expressions followed one another across his face. Vexed. Flummoxed. Perplexed.
“We’re back on the record and I’d like to know, what now?” he said in his mild voice. “I don’t like uproar in my courtroom. Are you planning any more shocks like this one, Counsel?”
“We were as astonished as the court,” Jack said, rising. “Astonished and gratified. It’s obvious Mr. Stinson was telling the truth when he testified that he was only trying to tell these people that he was innocent of the-”
“No more surprises, is that clear? If you have something like this, I want to know it’s coming.”
“Of course, Judge.”
“All right. This isn’t the time for argument. The court notes for the record that based on her purported confession to a murder, the previous witness, Carol Ames, has been taken into custody. Now let’s move forward with this. It’s eleven-thirty. We have half an hour. It’s still your turn, Counsel. You have a couple more witnesses on Count One listed.”
Jack said, “Well, we excused them, Your Honor. We are ready to move on to Count Two.”
“You’re resting for the defense on Count One?”
“Yes.”
“All righty then. Ms. Nolan, are you ready to go on Count Two?”
“Yes. The witness from Heritage Insurance is waiting outside.”
“Let’s move on, then. Count Two. Call your witness.”
“Marilyn Ann Rose.”
Marilyn Rose walked up to the box and was sworn. A heavyset woman with a pleasant, open face, she wore a demure, dove-gray pantsuit. Nina knew that Marilyn’s husband had died three months earlier, leaving her two children to support on her own. After the Vang fiasco she had left the company and moved out of state.
Her company had hired a lawyer who had managed to prevent Jack from deposing her. However, they knew what she would say about the Vang case. The actual document about to be introduced as evidence, Nina’s original intake notes, was the problem on this count.
The prosecution’s forensic writing examiner, Harvey Pell, came next on the problem list. Nina tried to yank herself mentally into the new universe of problems Count Two represented.
“Good morning, Ms. Rose. My name is Gayle Nolan and I represent the State Bar of California.”
“Good morning.” Nolan took Marilyn through a recitation of her job duties as a claims adjuster and brought her to the Vang case.
“I’m now showing you Exhibit 15, which has been previously admitted into evidence by stipulation. So Ms. Reilly presented you with this claim on or about August twenty-eighth of last year?”
“That’s correct.” The claim letter with its attachments was about four inches thick. Marilyn stared at it. They all stared at it.
“The claim was for how much for the losses due to the convenience-store fire?”
“They asked for two hundred fifty thousand dollars. The policy limit.”
“And the claim contained a copy of the police report concluding that the fire was caused by a criminal agency?”
“Yes.”
“And was the arsonist identified by the South Lake Tahoe police, at the time the report was written or at any later time up to the time that you adjusted the claim and sent out the check?”
“Not to my knowledge.”
“Was there any evidence in this claim letter or otherwise, up to the moment you sent out that check, that the store owner, Kao Vang, might have carried out the arson himself?”
“No. Of course our own investigator had done independent work on the fire, but he was unable to identify the arsonist and advised that he had no evidence that the claim was anything but legitimate.”
“Now, the defendant represented to you that she was Mr. and Mrs. Vang’s attorney?”
“That’s right.”
“You talked with her on numerous occasions throughout the adjusting process?”
“Yes. On the phone. Not in person.”
“Did she give you her version of the facts of the fire?”
“She said all she knew came from the police report, that her clients had suffered a lot. Told me about two previous violent incidents at the market. It all jibed with the theory she pushed on me, that the arson was a revenge act after Mr. Vang shot a robber during his second attempt to rob the store. She kept saying we had to have a heart for these people and even though the supporting inventories and receipts were in pretty bad shape, she practically begged me to give her clients the benefit of the doubt on the settlement.”
“And what was your response to her request that your company settle this matter for a generous amount?”
“I stuck my neck out and eventually offered two hundred ten thousand. That’s about right for a store of that type and size. To be honest, I suspected there was some padding in the inventories, and I suspected that if I had every scrap of paper translated and scrutinized it wouldn’t add up to that much. But these people weren’t your average store owners. They obviously didn’t use a standard system of accounting and were obviously new to American business systems. I took a chance and gave them as generous a settlement as I could.”
“You mailed out the check to Ms. Reilly?”
“Actually, she came and picked it up. The whole thing was a big rush for some reason I didn’t understand.”
Yes, and if she hadn’t heeded Jack’s advice and rushed those checks to the Vangs out-Nina stopped herself. She had already revisited that decision during more than one midnight.
“Looking back,” Marilyn Rose continued, “I have to assume that the time pressure was something Ms. Reilly invented as a strategy.”
“Objection. Speculation. Move to strike that last sentence.”
“She’s in the best position to understand why these events occurred,” said Nolan, but she wasn’t really fighting it; the point was made.
“Sustained.”
“Then what happened?”
Nina tensed. Now they moved to the meat.
“I received a manila file folder in my regular mail delivery with some papers in it.” Nolan went to her cart and pulled out the familiar file folder. Nina and Jack had had an opportunity to examine it, along with the notes inside, and to have it copied. As with the Bronco, there had been no prints and no lucky hairs or other forensic evidence.
“You kept the envelope it arrived in?”
“I had my secretary go back and retrieve it from the trash, yes.”
Nolan pulled out Exhibit 17, the full-size standard brown envelope. Marilyn Rose’s name and address were printed in capitals. After Marilyn identified it the envelope was received into evidence.
“Now. Do you know who sent this file, Exhibit 16, to you?”
“To this day I still have no idea. The police came out a week or so later to run some tests on it, but our legal counsel ensured that the file never left the company’s possession.”
“All right. You received the envelope, took out the file inside. Did you read the contents on that occasion?”
“Of course. I was quite curious. I didn’t realize it was her legal file.”
Jack shuffled his papers and got ready.
“And what was in the file?” Nolan asked.
“Objection,” Jack said. “The contents of that file contain attorney work-product and are privileged. The files did not lose their confidential aspect when they were stolen and inadvertently read by a third party. I have briefed this point thoroughly for the pretrial conference and ask that the court reconsider its ruling at that time.”
“The exhibit has already been admitted into evidence per my pretrial order,” Judge Brock said. “We have already gone over this several times.”
“For the record, Your Honor. These files were stolen. The clients haven’t waived the privilege. I understand that the state bar feels it can delve into confidential client files whenever it wants to. But my client and I, as practicing attorneys in the state of California, have to raise this objection again. And for the record we will appeal that pretrial ruling.”
Nolan, ready for this, spoke up. “The state bar has the right to discover the work-product of an attorney against whom disciplinary charges are pending when relevant to issues of the attorney’s breach of duty. I cite Code of Civil Procedure Section 2018 sub e and also Witkin, Cal Evidence third, Volume 2, Section 1145. This court has already issued a protective order limiting the testimony in some respects today. The evidence is relevant and crucial to showing that the defendant defrauded this insurance company.”
“You’ve said all that in the previous court conferences,” Jack said. “And I know there has been a ruling. Nevertheless, I can’t stand here and let this testimony come in without protesting. It’s a violation of the whole legal system that you are opening this confidential file in this hearing against the wishes of the client. It’s-”
“Your ongoing, undying objection is noted,” said Brock, making a small foray toward personality. “Now let’s move it.”
Jack’s face darkened. “This state bar court is requiring the violation of the Code of Professional Conduct required of attorneys and also the Business and Professions Code. Neither Ms. Reilly nor her client has attempted to waive the privilege of confidentiality.”
“Your objection is overruled.”
“This state bar court is without jurisdiction to flout the most sacred principles of the legal profession,” Jack said. “Any ruling based on this violation will be void.”
“Siddown, Counsel. Shout to the State Bar Journal after the case is over, not that you’ll get any attention from them. But don’t grandstand in my court. I won’t have it.”
Jack sat down.
“You didn’t have a chance, but thanks for trying,” Nina whispered.
“I did it for myself, too. I took the same oath when I was admitted.”
“What was in the file, Ms. Rose? You may answer,” Nolan asked, picking up the questioning without hesitation.
“A form that was headed Client Intake Interview.”
“Now, showing you Exhibit 18, a three-page document previously introduced into evidence after objection and argument. Is this the form?”
Marilyn took the sheets gingerly. She flipped to the last sheet and nodded her head. “This is it.”
