Hugh L. McWilliams' San Antonio practice focuses on insurance litigation. He has served the State Bar of Texas in the grievance process for twelve years. He has been chairman of the State Bar of Texas 10A Grievance committee and chairman of Panel I of the 10A committee.  James A. Ehler, Regional Counsel, Office of the Chief Disciplinary Counsel, State Bar of Texas, has continued to provided valuable insight and guidance for this series.

The Perils of Gwendolyn is an ongoing series of articles concerning the grievance process, featured in the San Antonio Lawyer magazine.

By Hugh L. McWilliams

Chapter I: The Complaint
Chapter II: The Hearing
Chapter III: The Appeal
Chapter IV: The Hearing De Novo
Chapter V: Preparing for the Evidentiary Hearing
Chapter VI: The Results of the Evidentiary Hearing
Chapter VII: Complications
Chapter VIII: The Client-Attorney Assistance Program
Chapter IX:  The Conflict of Interest
Chapter X: Disability
Chapter XI:  Reasonable Remedial Action
Chapter XII: Conflict of Interest Anyone?
Chapter XIII: It's a Doozer, Toozer!
Chapter XIV: A Perplexing Privilege Predicament
Chapter XV:  Intriguing Investigative Inquiries
Chapter XVI:  Wisdom’s Woeful Whereabouts
Chapter XVII:  Miss Molly’s Mysterious Message
Chapter XVIII: Identity Issues Ignite
Chapter XIX: Practical Paramount Procedures
Chapter XX:  A Common Complex Connection
Chapter XXI: Trailing Trial Trepidations
Chapter XXII: A Potential Piscatorial Problem
ChapterXXIII: An Intriguing Identity Inquiry
Chapter XXIV: A Debating Disqualification Dilemma
Chapter XXV: A Planned Payment Under Pretense
Chapter XXVI: A Surprising Suspension Situation
Chapter XXVII: A Terrible Technological Threat
Chapter XXVIII: A Baffling Bogus By-Product
Chapter XXIX: Twedle’s Twisted Two-Step
Chapter XXX: Disentangling a Discreet Discovery
Chapter XXXI: Scrutinizing Secret CD Scripting
Chapter XXXII: A Wrangling Writ to Right
Chapter XXXIII: A Disc’s Deceptive Data
Chapter XXXIV: A Harrowing Helicopter Hiatus
Chapter XXXV: Fretting a Non-Refundable Fee
Chapter XXXVI: Appealing a Prepaid Fee or a Realized Retainer
Chapter XXXVII: A Degrading Disruption Derailed



Chapter I: The Complaint

"I really eat this stuff up!" thought Gwen, smiling as she glided down the hallway to her office. One year out of law school and she already had her first victory notched on her "personal" copy of AmJur3rd Family Law. Sure it was just "pots `n pans, no kids," as the Partners say; but by golly it was hers after a fight to the finish. She beamed, thinking of her next conquest.

She glanced at the Monday morning mail and was surprised to see an envelope with the distinctive State Bar of Texas seal. She was sure she had sent in her annual dues and attorney tax, and MCLE reporting wasn't due for another month. She opened the envelope and began reading the contents. Her heart stopped cold when her eyes fell on the word "Grievance." It made a sound in her mind like tearing fabric. As disbelief evolved into denial, she held the letter as though it were a contagion and headed for the senior partner's office.

Bill Wisdom looked up from his newspaper and coffee and said, "Morning, Gwen, how's the litigator after a week off? Are you ready to get back into the ring?"

She looked at him, and he was certain her smile was symptomatic of intense abdominal pain. "Look what I got in the mail," she said, handing Bill the "scarlet letter." "I'll quit if you want me to."

Bill sized up the young, crestfallen lawyer and knew he had made a good choice when he hired her over a year ago. He read the complaint and was puzzled. "Tell me this complaint was not filed by the defendant in the case you just tried," Bill said.

"One and the same," said Gwen, "and he's saying I was unfair in the way I tried my case! This is totally ridiculous," she continued, "and I think I'm going to just ignore him."

"You can ignore him until the cows come home, Gwen, but you can't ignore the State Bar Grievance Committee." Gwen was morphing from denial into anger and from anger into retribution. How dare this guy! Bill went on, "Don't get yourself confused here, Gwen. You want to fight back, and that's natural, but your fight is not with the State Bar."

"But it's not fair, Bill! This complaint is about my cross examination. Look at this," she said pointing to the hand-written sheet attached to the State Bar letter.

Bill read aloud, "Respondent's attorney was unfair in asking the same questions in different ways and in arguing with the Complainant's attorney when he properly objected. This resulted in a violation of Rule 3.04 (5) by engaging in conduct intended to disrupt the proceedings."

They were both silent as they considered the allegations. "Okay," said Bill, "I understand that this complaint probably has very little merit. You were just doing your job, and the Judge was there to make sure there was no improper interference with the proceedings. But the task at hand now is responding to the Committee. Of course, we will need to get a transcript of the cross examination. The transcript will also have the objections and the rulings," he said, "and I expect that's about all we need in the way of documents. You need to make sure you file your response timely. When I was on the Committee, the last thing you wanted to do was ask for a continuance because you didn't respond."

Gwen groaned. "What should I put in the response?" she asked as she sank into the chair in front of Bill's desk.

"Keep it focused," Bill replied. "Stick to the issues, and state the facts," he added. "Rule number one is to file a response, and rule number two is to get in touch with the investigator. As soon as we are done here, you need to contact the investigator and let him know you are getting the transcript. Tell the investigator that I will be representing you."

Gwen's jaw dropped as she exploded, "You think I need a lawyer?"

"In this case, no, I don't," Bill said in his most soothing voice. "But it's always a good idea to either hire a lawyer or at least consult with a lawyer when you have had a complaint filed against you." Bill explained to Gwen that, in her present state of mind, it would be very difficult for her to be objective in reviewing the evidence presented to the Committee.

Gwen continued, "Will I have to go to a hearing?"

"Probably so, Gwen; but that won't be for another month or so, and we will be well prepared."

Gwen looked up from her notes and began ticking off items as she said, "Let me get this straight. I need to file a response and get it in within thirty days from today. I need to talk to the investigator and tell him what documents I am going to produce and that you will be representing me."

"Right," Bill answered, "and remember, fight the facts, not the Committee."


Chapter II: The Hearing

The shock of receiving notice of a grievance from the State Bar was right up there with "There's a problem with your law degree," or "We, the jury, find for the other guy, Gwen!"

But Gwen felt a little better as she finished preparing for the hearing scheduled for this afternoon. With the help of her boss, Bill Wisdom, she had filed her response well within the thirty days required by Rule 2.09, attaching the transcript of the cross-examination she conducted. In her conversations with the State Bar Investigator, she made sure to mention the transcript, and that Bill Wisdom would be representing her. She also had her entire file page-numbered and indexed.

Gwen did not look up as Bill walked into her office. "Are you about ready?" Bill asked as he slipped on his coat.

"I don't think I'll ever be ready," she said, poring over last minute notes. "Could you go over the game plan one more time?" Despite the confidence she had developed over the past month, Gwen was obviously becoming uncomfortable with the hearing just a few hours away.

"Sure thing," said Bill. "The panel will be in the hearing room when we arrive. Your hearing is the third one of the day. There will be a Chairman, who is an attorney, three lawyers, and two public members."

"What are public members?" Gwen asked.

"They are members of the community who come from many professions and walks of life, but are not lawyers," Bill replied. "Some people like to say they ensure that people with complaints get a fair shake." Bill continued, "The Chairman will start the hearing by calling the case and the case number. He will then spend a few minutes explaining that the purpose of the hearing is to gather evidence concerning the complaint." Bill could see that Gwen was soaking up every word he said. "It is important to remember, Gwen, that the committee is not there to solve legal problems between the parties, but to protect the public by making sure that attorneys conduct themselves according to the rules." Bill explained that the hearing was not a civil trial or a criminal proceeding, but really more of an informal administrative hearing.

Gwen was a little confused about exactly what she was going to go through. "Bill, I don't get it. If this is informal, then why is all the testimony taken under oath?"

Bill sat down in front of Gwen's desk. "Gwen, I don't want you to get to concerned about the process. There is a record made of the testimony which can be used in the event there is a District Court trial or an evidentiary hearing."

Gwen's eyes widened as she heard the words "District Court" and "evidentiary."

Bill said, "Don't get ahead of yourself, Gwen. If we need to, we'll talk about those hearings later. For now, you need to keep your head clear and focus on the hearing today."

Gwen nodded. "You know, it's a little ironic, Bill, that the complainant filed this grievance based on the cross examination I did at the trial, and today you will be cross-examining him again on his grievance complaint." Gwen snickered. "Maybe his next complaint will be against you!"

Bill smiled at the thought, then pointed out to Gwen that all questions between the parties have to be directed to the Chair, who then decides if the question is appropriate. If it is, then the Chair will ask the party to respond.

"That's too bad," said Gwen. "I was hoping to see the master at work."

Bill stood up and seemed more serious. "Actually, Gwen, this is not the best time for courtroom fireworks. It is not a good idea to attack the complainant in this hearing. Of course, we will make our case as to credibility and motive," Bill said, "but if the guy is lying or has an evil motive, the panel will recognize this without us having to challenge him."

As they got up to leave, Gwen said with a smile, "You're my lawyer, and I intend to take your advice."

As they drove to the State Bar of Texas office for the hearing, Bill and Gwen chatted about the firm's annual party. He had a good feeling about his newest client and could see that she was cool, calm, collected, and ready. Later that day, Gwen was introduced to the members of the panel.

The Chairman, below a red blinking video light, said "I am calling this hearing to order. . ."

When Gwen heard the Chairman announce that she would be notified by mail of the Committee's findings within thirty days, she knew the hearing was over. She was proud of the job she had done at trial and proud of the defense that Bill presented to the Committee.

That night, Gwen sat on her patio watching the night sky change shape with each passing cloud. She thought about the hearing she had dreaded for nearly a month and a half. It went exactly as Bill had outlined. The panel consisted of four lawyers and two people from the community. They were all polite, professional, and keenly interested in the merits of the complaint. She was amazed at how well they knew the details of the complaint and her response. Her nightmares had been about the rack and the Inquisition.

She had done precisely what Bill suggested. She was focused, brief, and kept her cool. Her defense was simple, direct, and based on the reality that the Grievance Committee is there to protect people from the unethical practice of law. Although it was hard for her to understand at first, the Committee was there for her as well as the public. Having a process to decide whether a lawyer's actions are ethical is as much a part of the legal profession as the lawyers. She now realized that her imagined inquisitors were really dedicated volunteers with tremendous collective insight and understanding of the practice of law and the public's perception of lawyers. Gwen sighed, stretched into the night, and commented to no one in particular, "I guess it's just one of the things that makes it worth being a lawyer."


Chapter III: The Appeal

Gwen had been out of town for the past two days, attending depositions for her boss, Bill Wisdom. It had been three weeks to the day since Bill had represented her in an Investigatory Hearing before the State Bar Grievance Committee. Gwen checked the mail every day for the results of the hearing. The Panel Chair who presided over the hearing said the findings of the Committee would be sent to her within thirty days. She felt pretty good about the hearing but could not decide which was worse: a complaint being filed, having to attend a hearing, or waiting for the decision of the Committee. It was about 2:00 in the afternoon when Gwen returned to the office. She wheeled her folding cart loaded with briefcase and banker boxes through the front door, waving hello to her secretary, Anna.

"Hi, Gwen, How were the depos?"

"Just fine," said Gwen, smiling at Anna's greeting.

Before Gwen could say another word, Anna, anticipating the question she had been answering for the past three weeks, said, "Nothing from the State Bar today, Gwen."

Gwen sighed, said "Thanks, Anna," and headed for her office. The "no news" news was becoming a curious conundrum. Should she be relieved that "no mail" meant there were no complaints from the State Bar? She remembered the day she took the notice of complaint from the Grievance Committee into Bill Wisdom's office. Even though she had just won her first trial and was "flying high," the mail she received that day was a killer.

On the other hand, she realized that the "no news" news meant she had another twenty-four hours to contemplate what the Grievance Committee was likely to do with the complaint filed against her.

She realized that her anxiety was probably wasted energy. Gwen had followed Bill Wisdom's advice to the letter. Her response to the complaint was short, direct, and confined to the issues. She did everything she could to cooperate with the State Bar investigator and her staff. She thought the Committee would find that there was no misconduct and vote to dismiss the complaint. But then, passing the bar exam didn't make waiting for the results any easier.

Gwen's phone rang her back to the present. "How were the depositions, Gwen?" The call screen told her it was Bill calling from his office at the end of the hall. Gwen briefed him on the depositions she had spent the last two days taking. Bill seemed pleased with what she had to report. He thanked her for a job well done and then said, "Gwen, stop by my office when you get a chance. I have a letter you may be interested in."

Gwen was out of her office and in Bill's before he could hang-up the phone. "What's up?" Gwen said, as she slid into the leather wing back chair in front of Bill's desk.

Bill wondered how she did that and chalked it up to youth. "Got a letter from the Committee today," Bill said, as he handed Gwen the envelope bearing the seal of the State Bar of Texas. Her breath stopped as she debated with herself whether she should open it. Bill said, "Because I'm your attorney of record, this was sent to me, but I thought you would like to be the first to read it."

Gwen removed the letter, and read out loud, "... no misconduct ...dismissed." Gwen relaxed back into the chair and, for the first time in two months, felt completely at ease.

"You're home free," Bill said as she gave him the letter.

"Thanks, Bill," said Gwen. "I can't tell you how much I appreciate everything you've done for me. It's hard to believe it is finally over!"

Bill Wisdom watched as the color came back into Gwen's cheeks. He could actually see the weight lifting from her and hated more than anything what he knew he had to say. "Gwen, it might be finally over." Bill continued, "Look at the last paragraph, Gwen. The vote was five to one in favor of no misconduct and dismissal." Bill explained to her that if the vote had been unanimous the Complainant could file a new complaint but only based on new evidence that had not been presented to the Committee. "Anything less than unanimous means you win, Gwen, but the Complainant can ask for a new hearing before a different panel."

Gwen was on her feet now, nearly in full attack mode. "How long does the Complainant have to ask for another panel?" asked Gwen.

"Thirty days," said Bill.

"So, if the Complainant asks for a new hearing in the next thirty days, then we have to go through the whole thing all over again?" asked Gwen.

"No," said Bill.

"The complaint and the response stay the same. The only thing that happens is an Investigatory Hearing De Novo." He continued, "The new panel will review the file as if it had just received it for a hearing. When it is scheduled for hearing, we will present our case in much the same way we did three weeks ago." Bill went on, "Gwen, the odds are it's over and done with, and I really doubt there will be any more to this."

Bill and Gwen stared at each other, their heads turning in unison to the tapping on Bill's door. Anna stuck her head into the office and handed Gwen a FAX. Her head pulled back and disappeared behind the click of the closing door. They looked at the FAX addressed to the State Bar Grievance Committee in silence. It was their copy.


Chapter IV: The Hearing De Novo

Gwen was reviewing answers to discovery as they scrolled against the blue background of her monitor when she caught her own reflection in the screen. She wondered whose face would be looking back from the computer in her office when she woke up from her "Grievance Committee nightmare." In the summer of last year, she had tried a simple divorce case, her first, which she had won. It was a big day in her life, to say the least. The former spouse of her client filed a State Bar grievance against her, claiming that she had been unfair and disruptive. The "nightmare" was getting worse, and today was no exception.

Forty-five days earlier, her boss, Bill Wisdom, who was also her attorney of record, had received a letter from the State Bar informing her that the Committee had voted "no misconduct." The complaint filed against her had been dismissed. Gwen was elated as she read the exonerating words again and again, making sure that she got it right. The letter was still cool and crisp in her hand when, as though directed by some evil anti-celebration troll, her secretary Anna handed her a document that would become known as "The FAX." In the midst of Gwen’s celebration, this document notified her of the complainant's request for a rehearing before a new panel.

Bill had explained that he could ask for another hearing because the first panel's vote was not unanimous. The complaint would be presented to the new panel in exactly the same form. The new panel would conduct an investigatory hearing de novo without being informed of the first hearing or the results. And that is exactly what happened, although this time the State Bar letter had arrived today, two weeks after the hearing.           

Gwen had felt pretty good about the first hearing; and her feelings were validated by the finding of no misconduct and a dismissal of the complaint. The second hearing had gone even better, and she was sure the results would be unanimous. It turned out that they were.

Gwen's gaze shifted from her own reflection in the computer screen to the tiny sparkles from city lights awakened by nightfall. She looked at her watch and wondered where the day had gone. What a day it had been. "I'm too young for this," she said to her reflection as the monitor faded to black.

"Uh oh!" she heard Bill say as he rounded the corner into her office. "Got you talking to yourself."

Gwen nodded as she packed up her brief case. "Bill, I have serious doubts about my future as a lawyer."

Bill knew exactly what she was feeling. He also knew there was nothing he could say or do to lighten the mood. Gwen was in a fight, and while he could be an advisor, confessor, and friend, he knew Gwen was the only master of her emotions. "How about a Raspberry Mocha Latte?" Bill said as they left the office for the day.    

Gwen and Bill found a couple of over-stuffed chairs in the coffee shop and settled in. That morning they had both read the most recent letter from the State Bar enough times to commit it to memory. The new panel had considered the evidence and unanimously found that Gwen had committed professional misconduct. She was being given an opportunity to resolve the matter while the committee still had jurisdiction.

Bill explained to Gwen that she had ten days to make a decision. The Grievance Committee had made a “just cause” determination that she had violated Rule 3.04(5) by engaging in conduct intended to disrupt a proceeding. They were referring to the complainant's allegation that her cross-examination and exchanges with opposing counsel were disruptive during the trial. After finding that Gwen had committed professional misconduct, they voted unanimously that she be publicly reprimanded.

Gwen had been deep in thought ever since Bill explained that as long as the Grievance Committee retained jurisdiction, the matter was negotiable. Once the Committee lost jurisdiction, then the complaint would be heard by an Evidentiary Panel of the Grievance Committee or in a trial de novo in state district court. Gwen peered at Bill from the safety of the big chair with only her eyes visible over the coffee cup and asked, "So, if I go to the Committee and offer to accept a private reprimand, do you think they would go for it?"

"Gosh, Gwen, I sure hope they would because that's the only way you could get a 'private.'" Bill winced at the notion of her being sanctioned at all. He truly believed that she was in the right, and that there had been no misconduct at all.  

"What do you mean?" Gwen asked.

"Well, Gwen, once the Committee loses jurisdiction, the sanction of a private reprimand is no longer available. So," Bill continued, "if you go to an Evidentiary Panel Hearing or into district court and you are found to have committed misconduct, the sanction would be at least a public reprimand." Bill pointed out that the rules specifically exclude private reprimands as a sanction available to Evidentiary Panels or district courts. “Both the district court proceeding and the Evidentiary Panel Hearing are open to the public, so a private reprimand really would serve no useful purpose,” he said. 

Gwen put down the cup, leaned forward taking a breath, and said, "Bill, I don't want to negotiate. I didn't spend the last eight years to get this far and just give up. I want to have the Evidentiary Panel Hearing. I think I can convince them that if I had done any less in court than I did, my client would have paid for it."

Bill was struck by the calm resolve in Gwen's voice. Gwen lifted her index finger and tapped her chest. "I am willing to pay for this."

Bill was really proud of his youngest lawyer and said, “Gwen, I think you already have."

Gwen grabbed her purse and said, "Actually not, Bill. We pay on the way out."  She smiled and headed for the cashier. Bill smiled for real for the first time all day and noticed the spring in her step.

"OK, Big Time," Bill said. "First thing tomorrow we need to draft a letter to the Committee electing an Evidentiary Panel Hearing and then start working on our witness list and testimony. This time we get to ask the questions."

Gwen smiled. "Big Time? I guess so," she continued "Now, I get to see my lawyer in action."


Chapter V: Preparing for the Evidentiary Hearing

Gwendolyn Gewurztraminer, (apologies to Gary Anderson), graduated from law school in 1999 and was licensed to practice in Texas in 2000. She was really excited when she was accepted as an associate in Bill Wisdom's firm. The position was considered to be a career milestone and the competition had been fierce. She had been with Bill for nearly a year, when, on the heels of her first verdict in a District Court, a State Bar Grievance was filed against her by her client's former husband.

With Bill Wisdom's help, the complaint against Gwen was dismissed after the first hearing, but the Complainant asked for a new hearing before a different panel. After the rehearing, the Grievance Committee panel found misconduct and offered to negotiate a sanction with Gwen. Despite the fact that this would be her only opportunity to settle for a private reprimand, Gwen decided to ask for an Evidentiary Hearing. Bill had really been helpful and had provided her with sound advice, so it was with painful hesitation that she called Bill on the office intercom.

"Good morning, Bill," Gwen's voice cracked into the receiver. "Hey, Big Time!" Bill responded in his typical upbeat fashion. "How are you doing?" he asked. Gwen steeled herself and said, "Bill I have someone in the conference room who needs to meet you." "I'll be right down." The tone in her voice and his curiosity caused Bill a little concern, but after twenty-five years of practice, he was usually ready for anything. Bill opened the door and saw Gwen seated at the long table with a distinguished-looking gentleman. Bill went up to him and extended his hand. "Good morning, I'm Bill Wisdom." The man rose from his seat and smiled taking his hand, "Good to meet you, Bill. I'm Jack Easter."

"So what's up, Gwen?" Bill asked as everyone settled in at the conference table. "Bill," Gwen began, "Jack is going to represent me in the Evidentiary Hearing." Bill was silent. He thought about this revelation and decided that it made perfect sense. "I think that's a great idea, Gwen. I can't talk about the particulars, but I remember Jack from my days on the committee." Bill noticed the awakening familiarity flash across Jack's face. "Of course!" said Jack. "I thought I recognized you."

Jack seemed a little more comfortable and Gwen felt as though a weight had been lifted from her shoulders. After Bill and Jack exchanged "war stories" about cases that had brought them into contact over the years, Bill said, "Gwen, Jack is one of the best in the grievance defense business. You know I will help you if I can, but I must say I am impressed with your decision and the lawyer you have chosen." Bill continued, "Jack, please let me know if I can help. I know you two have a lot to discuss." Bill waved at them as he left the room.

"Thanks, Jack," Gwen said. She continued, "That was the hardest thing I've ever done.  Bill has been so good to me through this complaint process, but I just don't think he can be impartial." Jack nodded agreement and said, "Well, Gwen, he is your employer and I know he is personally convinced that you have done nothing to violate the State Bar Rules." Jack folded his arms as he sat back in his chair. "With a vindictive complainant like the one in your case, Gwen, you are more likely than not in this for the long haul." Gwen groaned at the thought and said, "Well I guess it all begins here," as she handed Jack a copy of the Proposed Hearing Order. "This came in the mail yesterday and as I understand it we have to file a response. Is that right, Jack?" Gwen asked as Jack reviewed the stack of papers.

"Yes, Gwen, that's correct. Within twenty days we have to file a responsive pleading that either admits or denies each of the charges in the written statement of charges." Jack went on, "If we need to modify the Proposed Hearing Order filed by the Chief Disciplinary Counsel, we file our own proposed order at the same time." Gwen asked, "What happens if we don't respond?"

Jack explained to Gwen that the failure to respond can have dire consequences. If the respondent in the Evidentiary Hearing does not answer the charges by either admitting or denying them, then it is considered a default and all of the factual allegations will be taken as true for purposes of the Disciplinary Action. Jack pointed out that the rules permit a showing of good cause in the event there is a default and the panel can then allow a responsive pleading and proposed order for the Respondent.

"I don't think we will need to file a verified motion reflecting good cause," Gwen said. "But I am concerned about the proposed order. Exactly what does it contain and do we need to prepare our own order?" Gwen asked. "The order has to contain at least what the rules specifically require," Jack said as he handed the order to Gwen. He turned the page and referred to the first exhibit. "This is a list of all witnesses that are expected to testify. In your case there are not that many, but in some cases this would include people who will testify by deposition and in person and will have their addresses and telephone numbers."

Gwen read the list and asked Jack, "This has my name and the Complainant, but it also has the name of the State Bar Attorney as a witness. Why is he listed as a witness?" Jack explained that the State Bar is entitled to recover attorneys' fees and the Chief Disciplinary Counsel usually testifies in support of the fees. He then turned to the next exhibit and said, "Here are the summaries of the testimony expected from each of the witnesses. As you can see, the attorney will testify that the attorney fees are $750.00."

Jack went through the rest of the order and discussed the written summary of the issues of fact that were being contested, the list of exhibits expected to be presented, and the estimated time for presentation of the case to the panel.

"This seems to be fairly complete," Gwen said. "Based upon what you have told me about your case, I would certainly agree," Jack replied and then said, "Gwen, I will substitute in for Bill as your attorney of record and will prepare a draft response for your review. The hearing will not be set for another month or so. But in the meantime," Jack continued, "I am going to file a verified request with the committee for the deposition of the attorney who represented the Complainant in the case that you tried." "You can do that?" asked Gwen. "Well, Gwen, it's discretionary with the evidentiary panel, but I think they will let us have our deposition."

Just then, Gwen's secretary knocked at the door and handed Gwen a note. Gwen read it and then looked up at Jack. "Some guy named McWilliams is asking me to tell you he says 'thanks'?" Gwen was dumfounded. Jack said, "And he should, Gwen, I helped him out with an article he was writing!"


Chapter VI: The Results of the Evidentiary Hearing

Jack Easter gazed at the setting sun from his office on the 21st floor of a popular downtown high rise and wondered what he would do next. The grievance against Gwen was filed by the defendant in a lawsuit Gwen tried last year. She won the case, but the defendant claimed she had taken unfair advantage in the trial court. Gwen had been through two investigatory panels and, most recently, an Evidentiary Hearing. Jack had represented her and thought Gwen's Evidentiary Hearing went exactly according to plan.

Jack's ponderings took him through each phase of the hearing as he mentally critiqued each witness and all of the evidence. The hearing only took a couple of hours. The Chief Disciplinary Counsel made a brief opening statement and called three witnesses, all of whom were present at Gwen's trial. They testified that they were often confused with what was going on because they were not attorneys and thought that Gwen's performance was "very TV."

Then, the State Bar's attorney called Gwen. She told her story as she had in the two previous hearings. She was proud of the service she provided to her client and of her advocacy skills. She was very convincing when she emphasized her commitment to her client and the law. Upon Jack's request, the panel let him take the deposition of Todd Pytoon, the complainant's attorney in the trial. Jack thought that Todd's testimony would persuade the Evidentiary Panel that Gwen's conduct at trial was not intended to disrupt the proceedings in the alleged violation of Rule 3.04(5). Jack focused primarily on Pytoon's testimony that Gwen tried a tough, honest case. Jack and the State Bar attorney made their closing remarks, and the hearing was adjourned for panel deliberation.

Jack recognized that the presiding member's rulings on evidence do not have to strictly comply with the Texas Rules of Civil Evidence, but even under the rules, there would be no reversible error. He was satisfied that Gwen had gotten a fair hearing, although he was very disappointed with the results.

Gwen walked into his office and said, "Hey, Jack, that's a great view from up here; sorry I'm late but I just escaped from a marathon mediation." Gwen was her typical effervescent self, happy in her work and in her life. She knew the news was bad but gave Jack a warm smile more for herself than him. It would be easy to unload on Jack. She wouldn't be the first client to shift the focus from where it needed to be to her lawyer. She was convinced that Jack was the best representation she could hope to have, but in the long run, it was her fight to win or lose. "So what did they give me, Jack?"

"Fully probated suspension for sixty days, provided you attend an MCLE course on court room ethics within the next six months," he said, as he dropped the order on the desk in front of Gwen. 

"So, let me understand this," Gwen said as her voice crescendoed, "I go into court, work the evidence, this guy Pytoon fights me tooth and nail, and the guy who was cheating on my client gets me suspended for two months?" Gwen took a breath and whispered, "Where do they come up with a sanction like that?" 

Jack reminded Gwen that in an Evidentiary Hearing, private reprimands are not available. "The sanction is based on a number of different things," Jack said. "The Evidentiary Panel looks at the nature of the misconduct, how serious it may be, and whether the profession has been damaged." Jack went on, "The panel is really concerned with avoiding repetition, overall respect for the profession, and deterrence. In your case, Gwen, you haven't had other complaints, but the panel can take that into consideration as well." 

Gwen was on her feet now, tracking the design on the oriental carpet in the middle of Jack's office. Jack watched as she seemed to be meditating on a labyrinth. Gwen stopped and without turning to face Jack said, "I have the right to appeal to the Board of Disciplinary Appeals."

Jack walked over to her and said, "You could have had a private reprimand. I respect your decision to go to the Evidentiary Hearing, but now you've done that. You can end this right now with a suspended probation. Think about it," Jack said as he now faced her.

"Tell me about the appeal, Jack." Gwen pressed on, insisting that Jack give her chapter and verse on the appeal process before making any decisions. Jack pointed out that the Respondent, or any of the parties may appeal to the Board of Disciplinary Appeals. The notice of appeal had to be filed within thirty days from Gwen's receipt of the decision of the Evidentiary Panel. Gwen sat down and listened to Jack as he explained the substantial evidence standard and the importance of the record on appeal. As Jack recited the State Bar procedures, she began to doubt what she was doing and where it might ultimately go. She knew that this fight was taking its toll on her, the firm, and her boss, Bill Wisdom. She was already at the point where all of her efforts seemed to make matters worse. 

Gwen went home that evening plagued by indecision and doubt. She resolved to commit to a course of action before the end of the next day.

Gwen had been at her desk since 6:00 a.m. when her secretary called her on the intercom to let her know she had a call from Jack Easter. "Good morning, Jack," Gwen said. "I promise to let you know my decision before the end of the day. If I don't get anything else done, it's going to be that."

Jack's voice came through the receiver and she could tell he was on the speakerphone. She heard a flurry of activity in the background as Jack said, "Gwen, don't worry about what you will do. The decision has been made for you."

Gwen was puzzled. "What are you talking about, Jack?"

He picked up the receiver and said, "Sorry, Gwen, I was packing my briefcase, and I have to run, but I wanted you to know that the Complainant has filed a notice of appeal." Jack continued, "He is contesting the sanction and is claiming it is too lenient for the wrong that was done to him."

Gwen was stunned. "You mean I'm headed for the Board of Disciplinary Appeals whether I want to or not?" Gwen asked.

"That's right," Jack said. He reminded her that the Complainant can also appeal, even if it is just the sanction. Jack went on, "I will begin working on your brief and will file notice of our intention to appeal the finding of misconduct. Listen, Gwen, I'll go over this with you in more detail later this week."

Gwen hung up the phone and leaned back in her chair. She remembered the day she got the original complaint and Bill Wisdom told her, "I understand that this complaint probably has very little merit. You were just doing your job. . . ."

She sighed and thought, "Maybe the Board of Disciplinary Appeals will see it that way."


Chapter VII: Complications

Gwen had just returned from her meeting with Jack Easter and was reviewing the brief that he filed with the Board of Disciplinary Appeals. She was in a much better frame of mind since receiving Jack's frantic call several weeks ago. Plowden Torme, the complainant in the action, had sent Jack a notice of appeal contesting the sanction of a fully probated suspension for sixty days. Gwen was surprised by this move and became somewhat hostile about the fact that she didn't have the chance to accept the sanction or file her own appeal. In any event, her case was on the way to BODA.

Gwen's phone rang, and the receptionist said, "Gwen there's a Mr. Tyler Toozer in the waiting room who wants to speak to you about Mrs. Torme." 

"Who is he?" asked Gwen, "And who is he with?"

Gwen's receptionist replied, a little defensively, "I asked him Gwen, but he wouldn't tell me, didn't want to talk to me, and quite frankly he was pushy to the point of rudeness!" The receptionist was becoming quietly agitated as she continued, "In fact, he didn't even ask, he told me he was here to see you!"

Gwen wondered what was up as she hung up the phone and made her way to the front of the office. Destiny Torme was her client and the former wife of Plowden Torme. Destiny and Plowden had been married for eight years. Destiny was in a state of severe depression when she hired Gwen to divorce Plowden. Destiny called him Petey, which actually came from his initials -- P.D. Apparently, Plowden did not like his full name. According to the psychology reports discovered during the litigation, his mother used to call him Plowden when he was being disciplined. During the trial, Gwen used his full name and gained some advantage during cross-examination. He didn't like it then, either!

She had not seen Destiny since the trial. Gwen had received a phone call from her about three months ago. Destiny gave her a temporary address and phone number with specific instructions that she was not to let Plowden have the number. Destiny told Gwen that her former husband had been harassing her.

Gwen opened the door to the waiting room and saw Tyler Toozer. She did not recognize him. The man in the waiting room was easily over six feet tall and weighed no less than 250 pounds. He was dressed in blue jeans with a black tee shirt and a black sports coat. He was pleasant looking, in a very rugged, hard-fought frame, and seemed to be between 35 and 40 years of age.

"Is there something I can do for you, Mr. Toozer?" Gwen stood by the door as it gently closed behind her.

"Yes", he said. "I need all of the information you have on a Ms. Destiny Torme."

Gwen was somewhat intimidated by his demand and said, "Exactly who are you, Mr. Toozer, and what makes you think I am going to discuss my client with you?"

The man looked over at the receptionist as though to say, "You didn't tell her?" He approached Gwen and handed her a card. Gwen saw the state seal and read "Detective Tyler Toozer, Homicide Division."

Now Gwen was startled. "Is something wrong with my client?" Gwen demanded.

Tyler Toozer was impressed with Gwen's strength and replied, "I really wouldn't know, Ms. Gewurztraminer."

"Gwen," she interrupted.

"You see, we don't know where she is, and we would really like to talk to her,” Toozer explained. Gwen motioned to the adjacent conference room and invited the detective to step in. She closed the door behind her as Tyler Toozer slid into a chair with his back to the window.

"So what's the deal?" asked Gwen.

Tyler leaned into the center of the conference table and looked squarely at Gwen. "Last night Plowden Torme died."

Gwen returned Tyler's gaze as her breath caught. She knew that he noticed this, and she said nothing.

Tyler continued, "We don't have the official cause yet from the Medical Examiner, but I suspect it will be the bullet they pulled from his chest at the Emergency Room." Toozer sat back in his chair and folded his arms. "We got your name from a routine courthouse records check on Destiny this morning, figured you might be able to help us, bein' an officer of the court and all."

"Is my client a suspect?" asked Gwen.

"Should she be?" asked Toozer.

"Well, that's not my point" said Gwen. "I can probably contact her," continued Gwen, "but I am not in a position to provide you with any information about my client."

Toozer seemed put off and said, "Gee whiz, here's how the cow eats the cabbage." He went on, "(A) she knows her ex is in the real estate business, (B) she doesn't, (C) she has joined him, or (D) she's about to."

"I understand," said Gwen. "I'll try to contact my client, and either she or I will be in touch with you." Gwen stood up. "Thank you, Detective Toozer."

"One other thing," he said as Gwen was leaving the room. "I also came across another name at the courthouse.” He continued as Gwen turned around. "Todd Pytoon represented the 'former' former husband."

"And?"

Tyler got to his feet and walked toward the door. "Pytoon told me that Plowden filed a State Bar complaint against you, and that he has been giving you fits over it."

Gwen shifted her weight to one leg and put her hand on her hip as she said, "So, now I'm a suspect -- is that what you're saying?"

"Not at all, Gwen. Should you be?"

Gwen went back to her office, called Jack Easter, and asked him to come to her office. After she briefed him on her meeting with Tyler Toozer, she asked Jack what effect this would have on the appeal. Jack explained to her that he didn't know and would have to research the procedural results of the death of the complainant.

"Say, Jack," Gwen asked, "I thought the grievance process was confidential. Where does Todd Pytoon get the right to talk to this detective about the complaint?"

Jack explained to Gwen that the complaint process is confidential up to the point of a trial or an Evidentiary Hearing. At that point, the hearing is open to the public, and upon a finding of just cause, information can be made public upon request.

Gwen then asked Jack, "You're still my lawyer, right?"
Jack nodded and asked Gwen what was wrong.

She went on, "I need to talk to you about Plowden Torme. I think I am a suspect, and when Toozer finds out my client has been out of the state for the last three months, I know I will be a suspect."

Jack looked at his client and with sadness in his voice said, "Gwen, you didn't have anything to do with this, did you?"


Chapter VIII: The Client-Attorney Assistance Program

Gwen and her attorney, Jack Easter, spent several hours discussing Plowden Torme's demise and how it would affect the grievance process. Although there was no specific procedure, Jack was of the opinion that Torme's appeal would either be dismissed, or the findings of the evidentiary panel would be affirmed. Gwen could appeal the finding of “just cause,” but there would be no point in returning it for a second hearing.

Gwen had met her client, Destiny Torme, about a year earlier. At that time, Destiny sought a divorce from Plowden Torme. Bill Wisdom, Gwen's boss since she graduated from law school, referred to it as a simple divorce with no children, just "pots and pans." Plowden was not at all interested in getting divorced and demanded a jury trial. Gwen won the case, her first jury trial. Destiny was thrilled with the result, but she was still fearful of Plowden. Destiny moved to another town, leaving Gwen her new address and telephone number with specific instructions not to release the information to anyone. Gwen couldn't have imagined the brew that would bubble up from her first jury trial.

After the trial, Plowden Torme filed a grievance against Gwen, claiming that she was unfair in her cross-examination of him and that her actions and conduct disrupted the proceedings. Since then, she had been through two panel hearings, an evidentiary hearing, and two appeals, one of which was pending. To make matters worse, just days after she filed her responsive briefs with the Board of Disciplinary Appeals, Plowden was fatally shot in the chest. Soon after, the investigating officer visited Gwen.

Detective Tyler Toozer wanted Gwen to tell him how he could get in touch with Destiny. His concern over Destiny’s whereabouts was motivated by the possibility of harm to Destiny, and also, Gwen suspected, because Destiny was probably a suspect. Toozer was aware of Gwen's history with Plowden and the grievance committee. He seemed to suggest that Gwen was a suspect as well. Gwen had tried unsuccessfully to contact Destiny several times. Toozer was anxious for the information, but Gwen needed to talk to Destiny first.

Destiny finally called Gwen. She was extremely upset, but not over Plowden’s death.  Tyler Toozer had located Destiny and informed her of Plowden’s death. Destiny was convinced that Gwen had violated her confidence by releasing her address and telephone number without permission. Gwen was in a state of shock, flooded with memories of the past events and unable to reconcile any of them. Her client, who had been so pleased with her representation, was now threatening to have her disbarred.

Gwen contacted Jack Easter. Jack couldn't meet with her until the next day. He tried to encourage her by noting that this was clearly a misunderstanding. Gwen understood, knowing full well that she had not provided any information to Tyler Toozer regarding Destiny’s whereabouts. Gwen was reviewing medical records when the receptionist told her she had a phone call. “Hi, Gwen. This is Boots Pegleren with the State Bar CAAP office. Do you have a few minutes to talk?”

            Gwen replied, “Yes, I do, but tell me again who are you with?”

“Right,” said Boots. “We are so new that's always the first question. Boots explained: “I work for the Client-Attorney Assistance Program of the State Bar. What we do, Gwen, is help attorneys and their clients resolve problems that don't appear to involve actual violations of the Rules of Professional Conduct.” Boots continued, “Before we opened our office, a lot of complaints went to the grievance committees that just didn't need to be there. The State Bar thought it would be a good idea to provide a neutral forum where the misunderstandings could be resolved without having to file a grievance.”

“Well, I think that's wonderful,” said Gwen.

Boots sighed and said, “I'm so glad to hear you say that, Gwen!” “You see,” Boots was excited now, “I'm an attorney, and we screen calls from folks who call the Grievance Information Hotline to file complaints. If the complaint does not seem to be a violation, we offer our services to help the client and the attorney solve the problem.”

“So, Boots, what can I do for you?” Gwen asked.

“Gwen, it's what I can do for you,” Boots said. Her voice changed to what was clearly a business tone as she announced the purpose for the call. “We received a call from your client, Destiny Torme. She called the Hotline to file a complaint against you.” Boots went on, “The good news is that she agreed to CAAP intervention rather than filing a grievance at this time. She claims you released information about her to the police department without her permission. When we discussed it further, it was pretty clear to us she was assuming you were the source of the police's information, but she didn't really know that for sure.”

Gwen had anticipated something would happen. After all, Destiny threatened to have her disbarred. Gwen explained to Boots the meeting she had with Detective Toozer and her refusal to provide confidential information to him. Gwen said, “I had been trying to contact Destiny for two days to get her permission. The next thing I know, Destiny is on the phone reading me the riot act." Gwen suggested that Boots contact Tyler Toozer and ask him how he obtained Destiny’s address and phone number.

“That's a good idea, Gwen,” Boots replied. “I already have a call in to him. If it's all right with you, I'd like to set up a conference call with you, your client, and the officer.”

“It's okay with me, if Destiny agrees,” Gwen said, “but I want you to make sure the police officer doesn't ask her any questions during the conference. All I want discussed is the source of his information.”

Boots assured Gwen that the conference call would be limited to the source of the officer's information. As it turned out, Tyler Toozer was very forthcoming during the call and insisted that he got Destiny's telephone number from a traffic ticket that had been logged into the state system when Destiny had been in the state two months earlier. Destiny agreed to meet with Tyler.

After the conference call, Destiny asked Gwen if she would represent her in all matters concerning the death of Plowden. Gwen explained to Destiny that she probably could not represent her and would explain why when Destiny returned home. She told Gwen that because Plowden was no longer a threat, she could live at home without fearing retaliation for the divorce. Gwen was not looking forward to her meeting with Destiny. She wondered how she would reveal to Destiny that she was also a suspect in the death of Plowden Torme.


Chapter IX:  The Conflict of Interest

The day following Gwen's "hands on" experience with the Client Attorney Assistance Program intervention, Bill Wisdom returned to the office. Gwen told him all about the CAAP call from the lawyer, Boots Pegleren. Bill had heard talk of the program, but it hadn't been active in their town. He was amazed at how well it worked in resolving Gwen's misunderstanding with Destiny Torme. Bill's concern, however, went considerably deeper than Destiny Torme's anger over police department sources.

"What's going on, Gwen?" Bill Wisdom had been Gwen's boss for nearly two years. She came to work for his firm right out of law school and had proven to be a smart choice. The last few months, though, had been stormy, to say the least. Gwen had been the subject of almost everything the State Bar Grievance process had to offer. Now, on the heels of an appeal to the Board of Disciplinary Appeals, the complainant, Plowden Torme, had become the victim of a homicide, and Gwen was right smack in the middle of it.

"Bill," Gwen said, "I am afraid the horses are out of the barn." Gwen gave him a weak smile and continued. "My goose is cooked; stick a fork in me, I'm done."

"What are you trying to tell me, Gwen?" Bill didn't think any of this was funny.

"It's real simple, Bill." Gwen was shaking as she repeated the litany of hearings and appeals she had gone through because of Plowden Torme's complaint. She then described her confrontation with detective Tyler Toozer and his veiled remarks that she was a suspect in the death of Plowden Torme. "And now," Gwen continued, "I've got one great big mess with my client, Destiny, who is on her way over here as we speak!"

Bill's jaw dropped as he listened to Gwen exploding with frustration over all she had been through. "Take it easy, Gwen," Bill said, as he tried to get a grip on what was next. "Why is Destiny coming here?"

"She has a meeting with Tyler Toozer this afternoon, and she expects me to be her attorney." Gwen's arms were folded in a death grip as she took three quick steps and then reversed direction. She was speaking to the floor, but Bill had no trouble hearing her.

"Has anyone been charged with a crime?" Bill asked.

"No," she said, increasing the speed of her three-step process. "But the way it shakes out, Bill, is not good for the home team. You see, as between me and Destiny, I am the one who was here in town, had a motive, and had no alibi on the night Plowden was shot. Destiny wasn't even in the state, and the only motive she might have was a life insurance policy on Plowden that we tried to have cashed in and distributed in the divorce. It's a big one, a couple of million dollars, and Destiny was the beneficiary."

"Destiny may have been the beneficiary before the divorce,” Bill said, “but she isn't anymore; you know that, Gwen."

"Right," said Gwen, "and that only leaves the freaky lawyer with the never-ending grievance!"

Bill studied the floor that Gwen had been addressing and nodded. "Holy Torme, batman," Bill said, stopping Gwen's three-step mantra in its tracks. "Well, it's a pure cinch that you can't represent Destiny, and it's also pretty clear that the firm can't either."

"I was afraid of that," Gwen said, looking up at Bill. "Conflict of interest?"

"You got it. You see, Gwen, your obligation as Destiny's attorney would be to protect her rights as a potential suspect in a felony, possibly a capital felony. But,” Bill went on, "as a potential suspect yourself, your best defense would be that someone else did it. That 'someone else' could well be Destiny, and if she is your client, that is a conflict. As her attorney, you would have to talk to her. Anything she said to you as her attorney would be privileged, and she could assert it, but anything you said to her would not be privileged. So it's possible you could incriminate yourself. If that's not enough," Bill continued, "Texas Disciplinary Rule 3.08(b) prohibits you from representing a client in a matter in which you might be a witness adverse to your client."

Gwen wondered what she would tell Destiny when she arrived. Gwen let Bill know that she had discussed the situation with Jack Easter, and that he would be representing her, should it come to that. Bill and Gwen were satisfied that neither Gwen nor the firm could represent Destiny. They began discussing the conference call during which Gwen was apparently acting as Destiny's attorney, when a call came from the receptionist that Destiny had arrived. Tyler Toozer was also in the waiting room.

Bill and Gwen went into the conference room with Destiny. Detective Tyler Toozer was still in the waiting room. He had explained to Bill and Gwen that their "client" had asked him to meet her at her attorney's office, and she would answer any questions he might have.

"Destiny, it's good to see you again," Gwen began.

"Bill! Gwen! I can't tell you how relieved I am that you are here for me." Destiny smiled at them and then lowered her eyes saying, "This is just so unbelievable. I told the officer on the phone that I really didn't know anything about this horrible incident, but he insisted that I could provide him with background information that might help his investigation."

Bill interrupted Destiny before she could say any more. "I'm really sorry to have to tell you this, but neither Gwen nor I can represent you in your dealings with the police or anything having to do with Plowden's death."

"Nonsense," Destiny said. “Why Gwen has already proved to be invaluable in our conference call with the State Bar. She made sure that the officer didn't get out of line, if you know what I mean. Destiny smiled at them again and said, "Now that's the kind of representation I need now."

"Destiny, listen to Bill! That detective out there thinks I had something to do with this because of the grievance Plowden filed against me. That means I can't represent you."

"What on earth are you talking about, Gwen? What grievance? Are you saying that someone suspects you of killing Plowden? Why would anyone think such a thing? Bill? Tell me what this is all about." She went on, turning to Gwen. "Gwendolyn Gewurtz . . . or what ever your name is, did you do something to my Plowden?"

Destiny was filling the room with a tension that both Bill and Gwen could no longer tolerate. Destiny’s last comment convinced Gwen that something was very wrong. Finally, Bill told Destiny that he had no choice, that ethically he had to sever any and all attorney-client relationship with her, and he strongly suggested that she talk to a lawyer before meeting with the detective. He handed her a letter which clearly stated that neither Bill, Gwen, nor the firm would be representing her.

Destiny stood up and looked at the two lawyers seated at the far end of the conference table. "I'll tell you what I think, Mr. Wisdom. I think I'm going to talk to Mr. Toozer or whoever he is, and after I do so, we'll just see who needs a lawyer." Destiny turned to the door, went through the waiting room, and without stopping, went past the detective giving him a wave over her shoulder and saying, “Let's go, Toozer . . . we've got business!"


Chapter X: Disability

The meeting with Destiny did not go well at all. Gwen and her boss, Bill Wisdom, were both shocked when she left the office in the company of Detective Tyler Toozer. Despite the fact that Gwen had encouraged Destiny to hire a lawyer before being interviewed by the police, she seemed determined to meet with Toozer on her own terms.

Bill and Gwen discussed the possible results of Destiny's meeting with the detective. On the plus side, Destiny was out of the state when Plowden Torme was killed. On the negative side, the focus would probably shift to Gwen. Bill suggested that Gwen meet with Jack Easter. It was clear to Gwen that she would need a game plan on several different fronts. The potential for criminal charges was growing daily. There was still the matter of the grievance filed against her. To make matters worse, there was the possibility of a lawsuit against her by Plowden's estate and family.

Before Gwen could leave the office for her meeting with Jack Easter, the receptionist called and told her that Tyler Toozer was back in the waiting room and wanted to speak with Gwen.

"Hello again, Detective. You're becoming something of a regular in our office," Gwen said as she entered the waiting room. "I am sure Destiny told you," Gwen continued, "that I am no longer Ms. Torme's attorney."

Tyler stood up, folded his arms, and said, "That's right, she did, and she wasn't very pleasant about it either. . . although now she understands that there is no way you could represent her and wouldn't want you as her lawyer even if there were a way."

Gwen showed the detective to the conference room as she said, "My boss and I tried to explain that to her, but she didn't seem to get it."

"Oh, she got it just fine," Toozer said. "In fact, she thinks you had something to do with Plowden's death, and that's why I'm here."

Gwen was stunned. For the first time since this whole mess had started, she was really frightened. "Why are you here?" Gwen asked, not understanding what he was suggesting, if anything.

"Well, let me think about that," Tyler said as he stared at the ceiling in mock concentration. "You're a young lawyer with your life invested in getting where you are today." Tyler lowered his gaze to Gwen. "You have a nut case who filed a really dumb grievance against you. . . ," Toozer said holding up his index finger, ". . . not once, but twice and, glory be, who would ever guess that the guy would win? Now comes the good part - nut case turns up dead right on the heels of an appeal of the grievance to the State Bar Board of Disciplinary Appeals." He seemed to be really enjoying this. "Why I am here," the detective continued, "doesn't take a law degree to figure out. Gwen, I'd like to ask you a few questions." He reached into his pocket, pulled out a business card, and tossed it to Gwen. As it slid across the conference table, she could see that it was a Miranda warning. "Do I need to read that to you, Counselor?"

Toozer's tone was really beginning to "bug" Gwen. Fear turned to anger, but although she wanted to engage this creep with his snide remarks and innuendo, she knew better. As she stood up to leave she said, "My attorney is Jack Easter, and I'll let him tell you what you need to do."

First thing the next morning, Gwen was in Jack Easter's office briefing him on what had occurred the previous day. Gwen wanted to know, first and foremost, what effect the investigation would have on her ability to practice law. Gwen was familiar with some of the actions that could be taken by the State Bar, but when it came to crimes, she was confused. Gwen was reading the rules and procedures and asked Jack, "Isn't there a section in here that says you're disbarred if you commit a crime?"

"Well, yes and no, Gwen. Section 8.04(2) of the Disciplinary Rules makes it professional misconduct for a lawyer to commit a serious crime or a criminal act that reflects adversely on the lawyer's honesty or fitness."

"So is murder a serious crime, or is it one that reflects adversely?"

Jack smiled. "Well, I guess it's both, Gwen. The rules of disciplinary procedure define 'serious crime' as, among other things, any felony involving moral turpitude."

"I'm pretty sure this fits that definition, Jack, but what's the difference between being disbarred for 8.04(2) and being disbarred under any other section of the rules?"

Jack explained to Gwen that the Rules of Disciplinary Procedure provide for Compulsory Discipline. When an attorney is convicted of an intentional crime, which includes serious crimes requiring knowledge or intent as an essential element, the attorney is disbarred unless suspended during a period of probation. Jack stressed the point that there needs to be a final conviction. Just being investigated or charged would not support compulsory discipline.

"So at this point, Jack, I can't be I disbarred for being a suspect alI though, if I am convicted, it would be mandatory?"

"That's about the size of it, Gwen." Jack continued, "I think the big threat to your license at this point will be from an Interim Suspension, or possibly a Disability Suspension."

"What do they mcan by 'disability,' Jack?" This was news to Gwen. Somebody might actually think she was disabled?

Jack went over PART XII of the Rules of Disciplinary Procedure and explained that if an investigatory panel of a Committee certifies the finding of a disability to the Board of Disciplinary Appeals, the Board will assign it to a District Disability Committee. If there is a finding of disability, the attorney will be suspended indefinitely.

"Gwen, disability can include physical problems that can interfere with the attorney's ability to practice law, but it also includes mental and emotional conditions." Jack looked at Gwen and said, "You are under a lot of stress right now, and it is not interfering with your practice, but that doesn't mean that it won't or couldn't. Gwen," Jack continued, "you are a suspect in a murder case. Better people than you experience disabling depression over considerably less. Perhaps, when we meet again, we should talk about how you are handling this."

Gwen looked up from the books and smiled at Jack. "I know you're worried about me, but I'm fine." Gwen reclined back in her chair and said, "Jack, really, I'm at my best when there's a crisis. I know I can handle it.


Chapter XI:  Reasonable Remedial Action

With everything that had happened in the last few months, the staff at Bill Wisdom's office was amazed at Gwen's composure. She had weathered grievance complaints, rehearings, appeals, and evidentiary hearings resulting in findings of misconduct. Now she was a suspect in the murder of Plowden Torme. Some of the staff, including Bill Wisdom, were actually a little uncomfortable with how calmly she went about the day-to-day business of the firm. Anyone else would have been out of the office on stress leave. 

Although there had been no charges filed against Gwen, Bill felt it was best for the firm and Gwen that her duties be limited to office work and research. Bill had no doubts about Gwen's ability to represent the firm's clients. His concern was based on the clients’ perception of being assigned to Gwen, should the investigation and suspicion become public or, at worst, result in charges against Gwen. 

It had been a month since Gwen's last meeting with Detective Tyler Toozer.  He came to see her after meeting with Gwen's former client, Destiny Torme. Destiny was Plowden's wife, and Gwen had represented her in her divorce action against Plowden. Destiny met with Toozer after being advised that Gwen could no longer represent her, and that she should get another attorney before meeting with the police. In spite of the advice given by Bill Wisdom and Gwen, Destiny left their office in the company of Detective Toozer.

Since then, Gwen had met with her attorney, Jack Easter. He had been in contact with the police and advised them that Gwen was his client. The dust seemed to be settling, and Gwen was ready to get back to her real job as a litigator. Gwen went into Bill's office and said, “Got a minute Bill?”

“Sure!” Bill responded. “Grab a cup of coffee, and come on in.”

“Well, it looks like Toozer is off of my trail,” Gwen said as she sat in front of Bill's desk. “It's been almost a month since he was here.” Gwen continued, “And I haven't heard a word one from Jack Easter.” Gwen's voice dropped a notch or two and she said, “Bill I'd really like to get back to work. This research is all well and fine, and I understand why you have me under wraps, but I really am fine, and I want to get back to my cases.”

Bill understood where she was coming from and said, “Gwen, I know what you mean, and I sympathize with you, but I have a firm to run, and right now, my responsibilities as senior partner and as your supervisor are subject to the same rules you were sanctioned under. I have an obligation under the disciplinary rules to protect our clients from any situation within the firm that could affect their representation.”

Gwen nodded her head and said, “So it's like master and servant. If I do something wrong, you are responsible because you are my employer?”

“Not exactly,” Bill said reaching for a copy of the State Bar Rules. “A lawyer is not vicariously subject to discipline for the conduct of another lawyer. But a supervisor of a lawyer or a partner in a firm can be subject to discipline if a lawyer they supervise is allowed to commit a violation of the rules, and the supervisor knows the rules will be violated.”

Gwen said, “Bill, I don't understand. Are you telling me that you think I would violate the disciplinary rules if I represented a client in a trial? Why would you think such a thing? All this time I thought you were convinced that I didn't do anything that was a violation of the rules.” Gwen was obviously upset. She leaned forward in her chair and said, “Bill, if you think I'm unethical, why don't you just get rid of me right now?”

“Calm down, Gwen,” Bill said. “If I thought that you were unethical, you wouldn't be here having this conversation. Gwen, you are a smart, capable lawyer. Of this I have no doubt. I also have no doubt that what you have been subjected to the past two years is more than most lawyers experience in an entire career.” Bill opened the disciplinary rules and turned to Section V, Rule 5.01, “With that said, you can't forget that I, too, am a lawyer and must follow the rules, regardless of what I may think about you personally.”

Gwen sat back in her chair waiting for the “but” to kick in.

Bill pointed to the rules and said, “Gwen, I don't need these rules to understand what I must do. It is a simple question of morality. I cannot expose my firm’s clients to a lawyer who has personal and professional issues that could make her ineffective. You may disagree with me, but it's my responsibility, and I don't need your approval.”

Bill knew that he probably sounded harsh to Gwen, and he regretted hurting her feelings. There was no escaping the reality that Gwen's ability and competence as a lawyer could be adversely affected by what she was having to deal with personally and professionally.  He could not ethically entrust a matter to her, knowing that she was the subject of a murder investigation; that she still had an unresolved grievance and could possibly have a second grievance filed.

Bill read Rule 5.01 out loud to Gwen, stressing the obligation to “take reasonable remedial action to avoid . . . “a violation of the rules.

Gwen looked up from the rule book and said, “So I am condemned to the library because all of this stuff that's being done to me could interfere with the representation of a client?”

Bill looked at Gwen and said, “Gwen, you’re not being punished for anything.” Bill then said, “Look at it this way, Gwen. Would you refer a client to an attorney if you knew she had your issues to deal with?” Bill threw up his hand and stopped Gwen before she could answer. “Give me your ‘Gwen the lawyer’ answer. It's not so easy, is it, Gwen? It's a tough unfair question because you don't know the attorney's capabilities. You have to make the call.”

Gwen took a breath and said, “Bill, I wouldn't hesitate to refer the client to me, but I don't know about another lawyer. I see what you mean, though, and I respect your position. Is there any chance you might take me to a deposition every now and then? I promise to be good,” Gwen assured Bill. 

Bill smiled at Gwen and said, “That's better. Let's see what the next month or so looks like.  Maybe, with a little luck for a change, some of these issues will be resolved.” 


Chapter XII: Conflict of Interest Anyone?

Gwendolyn was sitting in her office bemoaning the fact that she was relegated to the library, condemned to do research. Her first grievance, filed by the deceased, Plowden Torme, had been dismissed. This was certainly good news, albeit anti-climactic, considering that she was now the number one suspect in his death. She was fairly sure her former client, Destiny Torme, would be filing a grievance against her, and Plowden’s estate would probably sue her for wrongful death.

Gwen’s boss, Bill Wisdom, was considerate in allowing her to continue working in his firm. Because of his ethical obligations as an employer and as a supervisor, however, Gwen could not have client contact until she was able to devote her full attention and energy to representing her clients. She caught herself focusing on her problems instead of the case on her computer screen, when the ring of her phone brought her back to the business at hand and reinforced what Bill had told her weeks ago. “Hi, this is Gwen,” she said into the speakerphone.

“Gwen, this is Bill. I need to meet with you this morning on an ethical issue that recently came up. I’m on my way in and will see you shortly.”

“Okay, Bill,” Gwen continued, “I checked my calendar, and I’m free this morning.” Gwen and Bill laughed as the phones clicked off.

An hour later, Bill and Gwen were in the conference room. Bill was explaining to Gwen that his new client had a serious problem. Bill was representing a lawyer who had a grievance with a pending evidentiary hearing. He had represented himself in the investigator hearing and was found to have committed misconduct. The panel suspended him for six months. The evidentiary hearing was already scheduled and was coming up in two weeks. Bill was meeting with the lawyer in a few hours and wanted to run the case by Gwen. He knew that, in the past year, Gwen and her attorney, Jack Easter, had looked at almost every rule and case in the disciplinary rules, and that she was up to date on current procedure.

“Here are the facts, Gwen.” Bill was referring to a letter he had received from his client. “Several years ago, three teenagers were injured in a pickup truck accident on a hunting lease in the southern part of the state. They were all licensed to drive and had all taken turns driving the truck. The truck was owned by one of the boys and was insured in his name. The other two young men were not related to the owner of the truck.”

Bill looked up and saw that Gwen was writing furiously. He waited for her to pause and then continued. “Very early in the morning the three boys were on their way to the blinds to hunt. No one saw them leave. They were not heard from that morning, and by noon, the other hunters were looking for them. They found the pickup truck overturned. All three of the boys were out of the truck, on the ground and unconscious. It was apparent that they had all suffered serious head injuries. They were airlifted to a regional hospital. All of the boys tested positive for drugs, and all of them had damages in excess of the single-person limit of the insurance policy on the truck.”

“All right,” Gwen said. “I think I have it.” She looked up from her notes and asked, “So what did the attorney do?”

“The long and short of it is conflict of interest,” said Bill. “It seems,” Bill turned to the next page of the letter, “that our client represented all three of the injured boys in a claim against the insurance company that had the policy.”

“So what’s wrong with that?” asked Gwen. “The driver was clearly liable because of the drugs, so each of the passengers would be entitled to the $25,000 per person limit.” Gwen handed back to Bill the insurance policy that had been enclosed with the letter and continued, “And the driver is entitled to recover Personal Injury Protection benefits because that’s  ‘no fault’ coverage.”

“Well,” said Bill, “here’s the catch. None of the boys has any memory of that morning, nor of the accident.”

“Why does that make a difference?” Gwen asked. “The insurance company is paying out maximum benefits, so . . . .” Gwen suddenly stopped herself and looked at Bill. She hit the nail right on the head when she said, “Any one of them could have been the driver.” She went on, “And the claims for the other two would change, depending upon which one was driving.”

“That’s it, Gwen.” Bill leaned back in his chair and sketched a diagram on his legal pad. “It’s classic, Gwen!” Bill showed her the diagram. “If we call the boys ‘A,’ ‘B,’ and ‘C,’ then ‘B’ and ‘C’ would have a claim against ‘A’ if he were the driver, ‘A’ and ‘C’ versus ‘B,’ and so on.” Bill dropped the tablet on the table and looked at Gwen.  “What a mess,” he said.

Gwen looked up from her paperwork and said, “According to our client, he recovered PIP coverage for each of them, and then the insurance company paid him $50,000 for a release of the insured on the policy. Apparently, he divided the money after fees among his three clients and that was it.”

“Right” said Bill. “The young man on the policy was released by the other two, but neither of them was released by anyone. Now, they are all suing each other, and there is no insurance money left. Also, all three of them have filed grievances against our client based on a conflict of interest. They say they were not advised that they had causes of action against each other, and that they could only take the insurance money.”

“This is really wild,” said Gwen. “Each one of them should have had his own attorney.”

“Correct,” said Bill. “But there’s another dog in this fight. Each one of the boys would also be an insured under the truck policy, if he were the driver. The insurance company has denied a defense to any of them based on the payment of the policy limits. To make matters worse, our client has represented the insurance company in the past although he is not currently one of its lawyers.”

“Who is this guy?” Gwen asked as she reached for the cover letter to look at the letterhead. When she saw the name at the top of the letter, she almost passed out. She could not believe it.

As she looked up at Bill, the receptionist announced over the office intercom, “Mr. Wisdom, there is a Mr. Todd Pytoon here to see you. He says he has an appointment.”


Chapter XIII: It's a Doozer, Toozer!

Gwen was in her office, kneedeep in her latest grievance challenge. Fortunately, it was not against her! She was putting together a brief for Bill Wisdom. The case had come in last month and was a pretty. strange conflict issue involving an insurance settlement. Gwen's phone lit up, ringing on her direct line. She wondered who it could be at 7 a.m. -- the switchboard wouldn't open for another hour. "Hi, this is Gwen," she said.

"Good morning, Gwen." She recognized the man's voice immediately. She felt cold and noticed her hand was shaking. He continued, "This is Tyler Toozer, and I need to talk to you. Is now a good time?" Gwen was stunned and couldn't utter a sound. After several seconds Tyler said, "Gwen, are you there?"

"Yes I am, Detective. I'm just very surprised that you would be contacting me when you know I am represented by counsel." Gwen liked the way her response sounded, and then wondered in a panic if she had already said too much. She knew that, as a suspect in the death of Plowden Torme, anything she said to the senior detective would come back to haunt her.

"I understand how you feel, but I can assure you that I have no intention of repeating anything we discuss -- to anyone! Listen, Gwen," he continued, "I'm down in the lobby coffee shop. If you're here in five minutes, great. If not, I'll assume you want your lawyer with you, and frankly, if that's the way it is, then we really have nothing to discuss."

The phone clicked, and Tyler was gone. Gwen was totally mystified by this call, at this hour, from a guy who had accused her of murder! Now, he wants to have coffee with her? Gwen was tempted to call Jack Easter, but knew that Tyler Toozer would be gone by then, and it wouldn't make any difference.

She had heard nothing from Toozer or anyone else in the police department for months. There had been nothing in the media about the case. The last thing of any significance to occur was Toozer's visit with her in the conference room.

Curiosity claimed another victory. The elevator doors opened, and Gwen could see the coffee shop on the opposite side of the lobby. She heard a voice say, "Good Morning?" and realized there were two guys waiting to get on the elevator.

"Sorry," Gwen said as she stepped out of the elevator and walked toward the coffee shop. She could see Toozer sitting in the first booth by the door. He was alone and looked up at Gwen as she walked into the shop and came up to the booth.

"Gwen," he said, "I really appreciate what you are doing. I know it's tough, 'specially for a lawyer." Tyler waved at the waitress, indicating he was ready to order, as Gwen slid onto the bench opposite him.

"So what's up, Detective Toozer?" Gwen was expressionless as she looked at Toozer for some sign of what he was after.

"Well," he said as two cups of coffee were delivered to the table, "It's Tyler, just Tyler. Not Detective Toozer."

"I prefer to keep this formal," Gwen said.

Tyler sat back in the booth and said, "Then call me Mr. Toozer, because I am no longer on the police force." Tyler explained, "I'm presently unemployed, so please, Gwen, Tyler is just fine."

To say she was stunned would be a "Nice Nelly." Gwen was bowled over. "What could I possibly do for you, Tyler? Our only involvement was you investigating me for murder! For crying out loud!" Gwen said through her teeth.

Tyler was ready for heat of some kind from Gwen. It would have bothered him more if she weren't angry. He thought about saying something like it was his job, no hard feelings, but that would have been ludicrous in the context of what he needed to say. "Gwen, I think Destiny Torme is part of a ring of con artists that have been working in this state for the past ten years or so. You have the pleasure of having coffee with her latest mark, and I didn't see it coming and still don't believe it happened."

Tyler was shaking his head in disbelief as he explained to Gwen that during his investigation he found evidence that Destiny had been in the city on the day Plowden was shot. He also discovered that Plowden and Destiny were in business together. They sold stocks and bonds to investors, mostly senior citizens, through clubs that they would set up using different names and organizations. Tyler told Gwen that her client's real name was not Destiny Torme. The happy couple was really Bethesda and Ford Chase.

"The whole divorce thing you were involved in was to avoid some kind of a tax snafu they had gotten into," Tyler said. "Now here's the tough part. All of these theories are unsupported by any evidence I could use legally, and now, I've been set up by Destiny/Bethesda for taking a bribe, which, Gwen," Tyler stressed, "I did not take!"

"Hey, Tyler," Gwen said, "this is all way over my head! What do you want from me?"

Tyler's look communicated fear, which made Gwen very nervous. Then he said, "Gwen, if we don't work together, we are both going down for the count."

"But what can I do?" Gwen said more as a statement than a question.

"You have information that I need," Tyler said.

"I can't give you anything. It would cost me my license. Everything I know about Destiny, or whoever, is privileged and confidential."

"I thought about that," Tyler explained, "but here's the question you need to answer: your client is Destiny Torme, and that is an alias created for criminal purposes. And," Tyler continued, "you were hired for a divorce proceeding for a marriage that did not exist, solely for the purposes of tax fraud! Is there really an attorney/client relationship?" Tyler hoped that Gwen could accept the fact that she had been used in a criminal scheme. The whole divorce, trial, and grievance were part of a scam, and Gwen had been led right down the primrose path.

"That's a convincing theory, Tyler, but if she wasn't really my client, then most of the information would be false anyway!" Gwen felt like she was between a rock and a hard place.

"That's not quite right, Gwen. You have time records and notes that will show when she was here, and phone numbers and long distance records that will give us other locations. For example, all the time she was out of town because she was supposedly afraid of Plowden, she was really setting up an investment club right here under a different name. I think that some of these companies may be clients of your firm."

Gwen was beginning to suspect Tyler of some brinkmanship. She wanted him to give her his information, but he refused. She promised him she would research the issue and try to determine if she did, in fact, have an attorney/client relationship with Destiny/Bethesda.

They agreed to meet again. Gwen went back to her office, wondering if everything that she had been through in the past year and a half was just a game by a con artist.


Chapter XIV: A Perplexing Privilege Predicament

Gwen was having a hard time believing anything Tyler Toozer had to say, but this conspiracy theory that Destiny Torme was really someone named "Bethesda Chase" was totally incredible. Gwen wasn't sure what she would do next, but she knew she had to speak to her attorney, Jack Easter. Later the same day, Gwen was in Jack's office explaining her conversation with Tyler to Jack. He was furious with her and kept shaking his head, admonishing her for talking to Toozer in the first place.

"I don't understand what's wrong with you, Gwen!" Jack looked at her over the top of his reading glasses. He didn't expect a response, but when Gwen started to defend her actions, he stopped her cold. "I don't want to hear any more about what you've done. Now, we need to be talking about what we're going to do about it." Jack took a book down from the shelf in his office and sat in the chair next to Gwen in front of his desk.

"This is not the reaction I expected, Jack," Gwen said, looking up at him.

"I'm sorry if I upset you," Jack said as he turned the pages of his book, "but the last thing I would have worried about was my client -- the #1 suspect in a murder case, who also happens to be a lawyer -- having coffee with the investigating officer. Listen, Gwen, I'm your attorney. I have given you a specific set of instructions that I expected you, of all people, to follow to the letter. Those instructions still stand. Just because `all is quiet on the front' doesn't mean you are out of the woods." Jack's voice softened, "Nobody has been caught or charged with this crime, and even if Toozer is no longer a peace officer, anything you say to him can be used against you."

"Okay, what do we do now?" Gwen asked as she sat back in the chair, folding her arms, wondering how she could be so gullible and who was conning whom. "What if Destiny Tonne is an alias, and the whole divorce was a scheme to avoid the IRS? Work with me on this, Jack." Gwen was on her feet now, pacing the patterns on the carpet. Jack called this her "war dance." "Just suppose Toozer is right, and Destiny and Plowden were involved in a crime, and nothing I did for them as an attorney was legitimate. Wouldn't that do away with any privilege?"

"Gwen, this is a really complicated area of attorney-client privilege. First of all, invocation of the attorney-client privilege is dependent upon the existence of an attorney-client relationship. And whether an attorney-client relationship exists depends on the facts of each case. It can be created expressly by contract, or it may be implied from the actions of the attorney and his client. You really need to look at what the parties did and said, and not at what you think their subjective states of mind were at the time the relationship was formed." Jack was referring to notes he had made in the margin of the book.

"What's that?" Gwen asked.

Jack looked up and said, "I had a case a couple of years ago that dealt with a similar issue, although nothing like your situation. There is an exception to the attorney-client privilege called the crime-fraud exception. Your attorney-client conversations are not confidential if they involve a continuing or future crime, and the attorney's services were sought to aid in the commission of the crime. We actually appealed the case and got a favorable decision. The case was going up to the next appellate level, but it settled."

Jack told Gwen that the case involved a client's telephone conversations with her company's attorney. The attorney had recorded the conversations, and during them, the attorney had fabricated stories to encourage the client to talk about trade secrets, in hopes of setting her up for theft of intellectual property. The client asked if the conversations were protected by the attorney-client privilege, and the attorney said they were. The court later held that the crime-fraud exception to the attorney-client privilege wasn't applicable.

"But let's not get the cart before the horse, Gwen." Jack then said, "Whether you have a confidentiality problem is secondary. We first have to decide if you are going to play ball with Mr. Toozer. Frankly, all you have at this point is speculation." Jack pointed out that Plowden Torme filed a grievance against her. "Why would he do that if the divorce action was just part of a scheme? Why would he carry it to the extremes he did? Wasn't Destiny a client of Bill Wisdom's before the divorce action? How come there has been nothing in the news about the bribe, the discharge, or the ring of con artists ripping off senior citizens?"

"I understand all of that," Gwen said, "but I'm the one having to live with this everyday, and I guess I'm looking for an end to it. You're right. I don't have a clue what Toozer is up to, but I would sure like to know."

Jack knew what Gwen was going through and resolved to get to the bottom of it. It was time to contact his investigator. Jack used the exclusive services of none other than Tidy Bohles. If anyone could get inside on this one, she could.


Chapter XV:  Intriguing Investigative Inquiries

Thaidra “Tidy” Bohles had been Jack Easter’s investigator for the past thirteen years. To say she was “The Best” was an understatement. With her inside connections, she could flush out a witness and cleanup a case better and quicker than anyone Jack knew. Tidy was the youngest daughter of a British Diplomat stationed in one of the Pacific Rim countries. She was educated at Oxford, with advanced degrees in mathematics, logic, and computer sciences. Since Jack had known her, she had resided at the Bay Shore Marina on a blue, converted trawler called the Blue Norther. Tidy was 4’11,’ weighed an amazing 85 pounds and was blond to the point of saturation. Gwen and Jack were waiting for her as she entered the conference room.

“Hello, Jack, it’s so good to see you again!” Tidy turned her glance to Gwen and extended her small, pale hand and said, “Gwen, so very nice to meet you. Please call me Tidy. I’m sure Jack has mentioned that my clients and friends do so.”

Gwen took her hand and was stunned by her strength. “Thank you, Tidy. I’m happy to meet you, as well.”

“Tidy, how are your folks?” Jack asked.

“Just fine, Jack. Thank you so much for asking. Dad does send his warmest regards and wanted you to know that all is well at BMIC.” 

Jack got to the point of the meeting, generally describing recent events and then said, “Tidy, we need to know if Tyler Toozer is playing us or is in a jam and needs our help. We also need to know who Destiny Torme is and what she is up to.”

“Well, Jack, I must tell you that I am certainly concerned that there has been a death associated with these shenanigans. Someone is apparently quite serious about their toys. Don’t you agree, Gwen?”

Gwen was caught off-guard by the question. Listening to Tidy speak was almost hypnotic. Her accent was English, but Gwen detected French as well. Tidy’s voice was a bit deeper than one would expect from a person her size, and almost “musical.” Tidy seemed to be in complete control of the pitch of her voice, varying from one note to another only when context dictated. “Yes,” Gwen said as though snapping out of a trance, “I am pretty sure whoever took out Plowden meant it.”

Tidy chuckled at Gwen’s attempt at sarcasm and said, “The vernacular so often evades me. It is a treacherous fault of mine. Gwen, if I am hearing you say there is a possibility that the death of Plowden was not intended, would I be correct?” Tidy, waiting for an answer to her question, studied Gwen. She sensed there were walls going up, rather quickly, with no foundation of which to speak.

Gwen was carefully measuring this last question that Tidy had so “tidily” put to her. Gwen snickered to herself, being careful not to let her private humor escape into the conversation. She was present enough to realize that any answer could be disastrous, at least as far as Tidy’s view of her. She realized full well that Tidy’s investigation would include her. Gwen was half smiling and quite serious when she said, “Tidy, I prefer not to speculate on what, if anything, you may be hearing. I do, however, expect you to live up to Jack’s belief in you and, with all due haste, extricate my butt from the sling in which it seems to be stuck.”

“I like her, Jack,” Tidy said. “If I am ‘hearing’ her correctly, Gwen just said ‘Don’t pull my chain,’ cause you’re not gonna like what’s at the end of it!”

Gwen cringed at Tidy’s obvious impression of her.

Tidy then said, “Very smart lady, Jack. Certainly smart enough not to have coffee and chit chat with the officer accusing her of homicide.” Tidy turned her entire body to the right, facing Gwen corner-to-corner. The leather chair in front of Jack’s desk looked huge with Tidy perched squarely in the center and offered no resistance to her movement towards Gwen. She then said, “So why did you have this tête-à-tête with the ever-so-scary Tyler Toozer, Gwen?”

Gwen smiled at Tidy and asked, “I take it you have met Tyler?”

“Our paths have crossed a time or two,” said Tidy. “He was the criminal investigator on an insurance fraud case I handled for Neutral of Omagawd. I found him to be borderline ineffective with delusions of adequacy.” Tidy continued, “So if he is in trouble, as he says, it wouldn’t surprise me.” Tidy stood up and with crossed arms began pacing about the room. Jack did not miss this similarity between Tidy and Gwen. Tidy seemed to be thinking out loud when she said, “I don’t understand how he could be taken in by Destiny Torme. She was, after all, a suspect, yes?” Tidy asked as she turned to face Jack and Gwen.

Gwen responded, “Destiny is, was, an old client of Bill Wisdom. He had been representing her for a number of years when I joined his firm. After I had been there for about a year, Bill let me handle Destiny’s divorce. We did just fine in trial, but afterwards there was some trouble with Plowden involving a grievance against me. Destiny had moved away, claiming she was afraid of Plowden. He was killed several months ago, and Toozer started his investigation. Now, Toozer is telling me this is all a set up, and he is no longer on the police force.”

Tidy nodded and asked, “What kind of work did Mr. Wisdom do for Destiny?”

“I don’t really know,” said Gwen, “and even if I did, I don’t think I could tell you because it is privileged.”

Jack added, “We have something of a Gordian knot, Tidy. All of Gwen’s communications with Destiny, and Bill’s for that matter, are privileged. Bill doesn’t know about Gwen’s meeting with Toozer and his claims that Destiny was involved in an investment scam.  What we really need at this point is whatever background information you can dig up on the two of them. Also you might look into the names Gwen was given by Toozer -- Bethesda and Ford Chase.”

With her marching orders in hand, Tidy said good-bye and left. Gwen assured Jack that she would call him if there were any new developments and went back to her office. It was already after six in the evening, and Gwen was not surprised that the office was locked. As she slipped her key into the door lock, it seemed to stick when she first tried to turn it. She took it out and tried several more times before it dawned on her that the lock had been changed. She was dumbfounded. Bill had said nothing to her about changing the locks. She checked her cell phone for messages, and there were none. She then called the office number, and when she tried to access her voice mail, her code was not recognized. As she was putting her phone back in her purse, she heard someone behind her and turned around. A uniformed policeman looked at her and said, “Are you Gwendolyn Gewürztraminer?”

“Yes,” Gwen said weakly. 

Without another word, the police officer handed her a piece of paper and left.

Gwen had been subpoenaed to appear before the grand jury.


Chapter XVI:  Wisdom’s Woeful Whereabouts

The next day, Gwen went to Bill Wisdom’s Spanish-styled mansion, situated in a posh part of town on the corner of Don Prado and Capoleone. Gwen stopped at the gate. When there was no answer on the intercom, she entered the code on the keypad. As the gate slid across the cobblestone drive, she was surprised that the code Bill had given her nearly a year earlier still worked. She drove to the front of the house. There were no other cars in the driveway. She couldn’t see any lights on in the house, and there was no activity whatsoever on the premises. The place was for all practical purposes deserted.

Gwen flipped open her cell phone and called Bill’s home number. It rang three times, and then she heard a recorded “no service” message. She re-dialed, to make sure she had used the right number, and as she listened to the first ring, she heard a truck coming up the drive from the gate. The truck pulled to the side of the house, and the driver got out and walked toward her.

“Who are you?” the driver demanded.

Gwen could see that the man was a security guard and wondered if she had set off an alarm coming through the gate. “I’m Gwendolyn Gewurtstraminer. I work with Mr. Wisdom.  I’m a lawyer in his office.” 

“Oh, well okay,” he said, “I’ll be out of here in just a minute or two. Sorry to bother you.”

“Was there an alarm?” “Heck, lady, I don’t know and don’t much care. I’m here to disconnect the service and pick up our monitors. This account was closed about a week ago.”

Gwen was fidgeting when she asked, “Mr. Wisdom still lives here, doesn’t he?”

The man snorted a kindly laugh and said, “No one has lived in this house for about four months. We used to complain like the devil to our supervisor ’cause every time a bat would fly through a detector, we had to dispatch a unit for nothing. Can you believe it -- for nothing!”  

Gwen got into her car and left. On her way back to the office, she called the State Bar and asked for Bill’s home and office addresses. They were still the same, as far as the Bar knew. She tried, with no luck, to get in touch with her lawyer, Jack Easter. Finally, she caught Tidy Bohles at her office and explained everything that had occurred since the time Gwen had returned to her office the evening before.

As Gwen arrived at the office building where she had worked for the past two and a half years, Tidy was just saying, “. . . and, Gwen, when you get to the office, go directly to building management and see what you can learn from them.”

Gwen went to the front door of the Bill Wisdom Law Offices and tried her key once again. It was useless, she thought. The locks had definitely been changed while she was out of the office. She walked into the management office and smiled at the receptionist. “Hi, Pita. I need your help. Believe it or not, I can’t get into my office!”

“Good morning, Gwen,” Pita smiled. “You bes’ be talkin’ to Benny,” she said, as though she wanted nothing to do with this problem. She called Benny, the building manager, to the front and then went into the coffee room.

Benny came into the waiting room and explained to Gwen why her key no longer worked. “You can’t get in there until somebody pays up all the back rent.” He shoved his big hands into his pockets and rocked on his heels as he continued, “$20,000 and change.” Gwen could tell that Benny was proud of this number. He then said, “I have a lien on everything in that office, and nothing can be removed until we are paid in full.”  Benny put exaggerated emphasis on “paid in full,” enjoying immensely one-upping a lawyer. 

Tidy had just entered the office as Benny was in mid-rock, and he nearly tipped over when he saw her. “Come on, Gwen,” she said. “Let’s go.”

“$20,000!” Benny repeated as they walked out of his office. He followed them into the hallway and shouted, “And then you’ll have three days to move out.”

Tidy was no stranger to what was going on. She had assisted attorneys appointed by the court to act as custodians of abandoned law practices. She drove Gwen to the field office of the State Bar. "