The Rooster Bar (20 page)

O
n a warm spring day in late April, with the cherry trees in full bloom and the air clear after a good rain, the partners gathered in the firm's headquarters to launch their last Hail Mary at the practice of law. The firm's headquarters also doubled as Zola's den, and over the past three months she had managed to add some life and color to her hiding place. She had painted both rooms a soft beige and hung some contemporary art. In one corner there was a small refrigerator, the only sign of a kitchen. On an old metal table, there was a new desktop computer with a thirty-inch screen, and next to it was a high-speed laser printer. Sagging bookshelves were mounted on two walls and were filled with piles of paperwork, the fruits of their diligent tracking of all matters related to Swift Bank.

Each of the three had joined, as an aggrieved plaintiff, a separate class action against the bank. There were now six spread across the country, all led by lawyers who specialized in such massive lawsuits.

In the meantime, Swift Bank was on the ropes, cut and bloodied, and barely able to survive its daily thrashing. New allegations of wrongdoing poured forth. Whistle-blowers were singing at full volume. Upper managers were pointing fingers. Indictments were being promised. Stockholders were embarrassed, but they were also furious because the stock had fallen from $60 to $13 in less than four months. Rumors roared through the Internet and cable news. The most prominent was a recurring one that Swift would have no choice but to throw billions at its problems.

That prospect only incited the class action industry.

Comparing the responses from the three firms they had hired, it was clear that a Miami outfit called Cohen-Cutler was a few steps quicker than the other two, one in New York and one in D.C. Cohen-Cutler had a nice reputation in the rough-and-tumble world of mass torts. It was huge, with a hundred lawyers and plenty of muscle. Its paperwork was more efficient.

Thus, the fading law firm of Upshaw, Parker & Lane made the decision to join hands with the mighty Cohen-Cutler.

Zola sat at the table with a cup of tea and studied the desktop. Todd sat in the only chair with his laptop. Mark sprawled on the floor. Gone were their beards and fake eyeglasses, as well as their suits. The courtroom days were over; no need to hide behind disguises. They would spend the next few weeks hiding above The Rooster Bar. Beyond that, they had no plan.

Mark said, “There's a Swift branch on Wisconsin Avenue in Bethesda. Let's start there. Check out the white pages for Bethesda. We're looking for generic names that can easily be misspelled.”

“Got one,” Todd said. “Mr. Joseph Hall, 662 Manning Drive, Bethesda. Change the last
l
to an
e
and he's now Joe Hale. Our first fake client.”

Zola opened a document copied from the Cohen-Cutler materials. It was known internally as a PIS, Plaintiff Information Sheet. “Date of birth?” she asked.

Mark said, “Make him forty years old. Born March 3, 1974. Married, three kids. Swift Bank customer since 2001. Checking account and savings account. Debit card.”

She typed away, filling in the blanks. “Okay, account numbers?”

“Let's leave them out for now. We'll fabricate them later if we have to.”

“Next?”

Todd said, “Ethel Berry at 1210 Rugby Avenue. Change the
e
in Berry to an
a
and you still have the same Ethel Barry.”

Mark said, “That's our girl. Ethel's kind of an old-fashioned name so let's give the gal some years. Born on December 5, 1941, two days before Pearl Harbor. Unmarried widow. No kids at home. Checking, savings, too old for a debit card. Doesn't like credit.”

Zola filled in the blanks, and Ethel Barry became a class action plaintiff. “Next?”

Todd said, “Ted Radford, 798 Drummond Avenue, Apartment 4F. Change the
a
to an
e
and he's now Ted Redford, like Robert, the actor.”

Mark said, “And when was Robert Redford born? Hang on.” He pecked and scrolled and said, “August 18, 1936. So give Ted the same birthday.”

Todd asked, “Is Robert Redford really seventy-seven years old?”

“Still looks good to me,” Zola said, typing.

Mark said, “
The Sting
and
Butch Cassidy
are two of my favorite movies. We can't have a Redford without a Newman.”

Todd hunted and pecked. “Got one. Mike Newman at 418 Arlington Road, Bethesda. Change the
w
to a
u
and he's now Mike Neuman.”

Zola typed and mumbled, “Aren't we having fun?”

After rampaging through Bethesda, and collecting fifty plaintiffs, the firm turned its sights to the suburbs of Northern Virginia. There was a Swift branch on Broad Street in Falls Church. The area around it proved fertile as dozens of new fake clients were added to their lawsuit.

By noon, they were bored and decided to have lunch and move outdoors. They took a cab to Georgetown, to the Waterfront, where they found a table with a view of the Potomac. No one mentioned Gordy, but each remembered their last visit to the area. They were standing nearby on that awful night when they saw flashing lights on the Arlington Memorial Bridge in the distance.

They ordered sandwiches and iced tea, and all three opened laptops. The search continued for aggrieved Swift customers.

LONG AFTER THEY
had eaten, the waiter politely asked them to leave; said he needed the table. They closed shop, walked around the corner to a coffee bar, found another table outside, and commenced operations. When they added their one hundredth new client, Mark placed the call to Miami. He asked to speak to a senior litigator with Cohen-Cutler, but of course the great man was away on business. Mark kept pushing and was finally routed to a lawyer named Martinez, who, according to the website, was fighting Swift on the front lines. After introducing himself and mentioning his little firm, Mark said, “So, we have about a hundred Swift customers and we'd like to join your class action.”

“A hundred?” Martinez repeated. “You're kidding, right?”

“No, I'm dead serious.”

“Look, Mr. Upshaw, as of today our firm has almost 200,000 Swift plaintiffs. We're not taking referrals for anything under 1,000. Find a thousand cases and we'll talk business.”

“A thousand?” Mark repeated and looked wild-eyed at his partners. “Okay, we'll get to work. Say, just curious, what's the big picture look like?”

Martinez coughed and said, “Can't say much. Swift is under enormous pressure to settle but I'm not sure their lawyers understand this. There are a lot of mixed messages. We think it will settle, though.”

“How soon?”

“We're guessing early summer. The bank wants this mess behind it and has the cash to make it go away. The federal judge sitting on the case in New York is really pushing the litigation. You're watching the headlines.”

“You bet. Thanks. We'll be in touch.”

Mark placed his phone next to his laptop and said, “We've only just begun.”

T
he District Bar Council had almost 100,000 members, about half of whom worked in the city. The other half were scattered through all fifty states. Since membership, as well as the payment of dues, was mandatory, the administration of the bar's activities was a challenge. A staff of forty worked diligently in its headquarters on Wisconsin Avenue, keeping up with the names and addresses of its members, planning educational courses and seminars, promulgating standards of professional responsibility, publishing a monthly magazine, and dealing with disciplinary matters. Complaints against judges and lawyers were directed to the Office of Disciplinary Counsel, where one Margaret Sanchez managed a staff of five lawyers, three investigators, and half a dozen secretaries and assistants. To receive a proper review, a complaint had to first be filed in writing. Often, though, the first hint of trouble came by phone, and usually from another lawyer who did not want to get too involved.

After several efforts, Edwin Mossberg from down in Charleston managed to get Ms. Sanchez on the line. He told her of his encounter with one Mark Upshaw, a young man claiming to be a lawyer but apparently using an alias. Mossberg had checked and found no record of such a person in the bar's directory. Or in the phone book, or online, or anywhere else for that matter. He described in general Upshaw's negligence in allowing an important statute of limitations to expire, and his subsequent trip to Charleston to beg Mossberg to keep quiet.

Ms. Sanchez was captivated by the story. Complaints of unauthorized practice were rare and almost all involved paralegals who either deliberately or inadvertently stepped out of bounds and did things that only their bosses were supposed to do. A quick reprimand usually got them back in line without substantial damage to the clients.

Mossberg was reluctant to file an official complaint, said he didn't have time to fool with it, but just wanted to tip off the bar and let it know there was a problem. He e-mailed a copy of Upshaw's business card with the name of his firm, its address on Florida Avenue, and a phone number. Ms. Sanchez thanked him for his time.

The story was made even more interesting by the fact that it was the second phone call dealing with the law firm of Upshaw, Parker & Lane. The previous week, a local ambulance chaser named Frank Jepperson had unofficially tipped her off that one Zola Parker had tried to hustle one of his clients in a hospital cafeteria. Ms. Sanchez knew Jepperson from two prior complaints about his own unethical behavior. Jepperson had sent her a copy of Zola Parker's business card.

Sitting at her desk, Ms. Sanchez compared the copies of the two cards. Same firm, same address, different phone numbers. A quick review of the bar's directory verified that neither Mark Upshaw nor Zola Parker was a member. She summoned a member of her staff, Chap Gronski, whose official title was assistant disciplinary counsel, and gave him the two copies of the firm's business cards. An hour later, Gronski was back with some research.

He said, “I've checked the criminal dockets and found fourteen cases in which Mark Upshaw is the attorney of record. Nothing on Zola Parker. There's a guy named Todd Lane who's been active for the past three months, found his name on seventeen entries. There's probably more. The odd thing is that there is nothing prior to January of this year.”

“Sounds like a start-up, a brand-new firm in town,” she said. “Just what we need.”

“Shall I open a file?” Gronski asked.

“Not yet. There's no official complaint. When are they due in court again?”

Gronski flipped through some printouts. “Looks like Upshaw has a sentencing hearing for a DUI client in Division 16 at ten in the morning.”

“Ease over and take a look. Have a chat with Upshaw and let's see what he has to say for himself.”

AT TEN THE
next morning, Chap Gronski was sitting in Judge Cantu's courtroom watching the parade. After the third guilty plea and sentencing, the clerk called the name of Jeremy Plankmore. A young man in the back row stood nervously, looked around for help, and stutter-stepped down the aisle. As he approached the bench, alone, Judge Cantu asked, “Are you Mr. Plankmore?”

“Yes, sir.”

“Says here your lawyer is Mark Upshaw. I don't see him in the courtroom.”

“No, sir, me neither. I've been calling him for three days and he won't answer his phone.”

Judge Cantu looked down at a clerk, who shrugged as if she knew nothing. He looked at the assistant prosecutor, who gave the same shrug. “Very well, step aside, Mr. Plankmore, and I'll deal with it later. Let's see if we can get Mr. Upshaw on the phone. He must've got his schedule mixed up.”

Plankmore sat in the front row, frightened and confused. Another lawyer moved in for the kill.

Gronski reported back to Ms. Sanchez. They decided to wait two days until Mr. Lane's next scheduled court appearance.

JEREMY PLANKMORE DECIDED
to dig a bit deeper. With a friend as extra muscle, he waited until later that afternoon and visited the address on his lawyer's business card. Upshaw had charged him a thousand bucks, $800 of which he'd paid in cash. The balance was in his pocket, but he had no plans to hand it over. Indeed, his plans were to confront Mr. Upshaw and demand a refund. At the address on Florida Avenue, he couldn't find the law firm. At The Rooster Bar, he and his friend bought beers and chatted with the bartender, a heavily tattooed young lady named Pammie. Pammie had little to say, especially when Jeremy started poking around with questions about Mark Upshaw and a law firm in the building. She claimed to know nothing and seemed irritated by the questions. Jeremy got the impression she was stonewalling, and he wrote his name and phone number on the back of a paper napkin. He handed it to Pammie and said, “If you bump into Mark Upshaw, tell him to call me. Or else I'll report him to the Bar Council.”

“Like I said, I don't know the guy,” Pammie replied.

“Yeah, yeah, but if you happen to meet him.” Jeremy and his friend left the bar.

SNIFFING A JACKPOT,
Darrell Cromley moved with extraordinary speed. He paid $3,500 to a retired doctor for an “expedited review” of Ramon's medical records. In conclusion, the expert wrote, in language blunter than Dr. Koonce's, that “the actions taken by the hospital staff and attending doctors fell far below acceptable standards of care and constituted gross negligence.”

Darrell grabbed the two-page summary, attached it to his two-page lawsuit, and filed it on behalf of his client, Ramon R. Taper, against Attorney Mark Upshaw and his firm in the Circuit Court of the District of Columbia. The gist of the lawsuit was obvious: Attorney Upshaw had sat on a clear case of medical negligence and allowed the statute of limitations to expire, thus extinguishing any chance of recovery from the hospital and its doctors. Ramon was seeking actual and punitive damages that totaled $25 million.

Darrell mailed a copy of the lawsuit to the address at The Rooster Bar, and paid a process server $100 to personally deliver it to Mr. Upshaw, as required. At the bar, though, the process server had trouble finding the firm. He assumed it was housed somewhere above the bar—he counted three levels up there—but the only visible door, one to the side, was locked. Inside the bar, he asked around, and was told by the manager that there was no such law firm. No one seemed to know anything about Mark Upshaw. The process server tried to leave the lawsuit with the manager, but he adamantly refused to accept it.

For the next three days, the process server tried to find either the law firm or Mark Upshaw, but had no luck.

At no time did Darrell Cromley consider checking with the District Bar Council to determine if Mark Upshaw was a member.

THE LAW FIRM
had adopted the strategy of mobility. It left the building each morning and drifted around the city, from coffee shops to libraries to bookstores to outdoor cafés, anywhere the partners could camp out with their laptops and comb the white pages for more clients. An observer might have been curious as to what all three were working on with such diligence, mumbling softly to each other, offering names and addresses while their assortment of cell phones vibrated in a muted chorus of neglected calls. The three were certainly in demand, yet they rarely took a call. Such an observer, and there were none, would not have a clue.

TODD WAS BEHIND
the bar late one night tidying things up as the last of the customers paid their tabs and left. Maynard, who rarely came to The Rooster Bar, appeared from the kitchen and asked, “Where's Mark?”

Todd replied, “Upstairs.”

“Get him down here. We need to talk.”

Todd knew it was trouble. He called Mark, who was two floors above him in the firm's office laboring through the white pages with Zola and adding names to their class action. Within minutes, Mark entered the bar. They followed Maynard to an empty booth. Their boss was scowling, in a foul mood, and wanted answers.

Maynard tossed a business card on the table and asked, “Ever hear of a guy named Chapman Gronski? Goes by Chap?”

Mark picked up the card and felt sick. “Who is he?” Todd asked.

Maynard said, “An investigator for the District Bar Council. He's been around twice looking for the two of you. Mr. Mark Upshaw, Mr. Todd Lane. Don't know these guys. I do know Mark Frazier and Todd Lucero. So what the hell's going on?”

Neither knew what to say, so Maynard continued. He tossed a napkin on the table and said, “A guy named Jeremy Plankmore left this yesterday, said he was a client, said he was looking for his lawyer, a Mr. Mark Upshaw.” He tossed another card on the table and said, “And this guy has been by three times, a little guy named Jerry Coleman. He's a process server for some lawyer who wants to sue you and your law firm.” He tossed another card on the table and said, “And this is from a father who said his son hired you, Todd, to handle a simple assault case. Said you didn't show up for court.”

Maynard stared at them and waited. Mark finally said, “Well, it's a long story, but we're in a bit of a jam.”

Todd said, “We can't work here any longer, Maynard. We need to disappear.”

“You got that right and I'm going to help you. You're fired. I can't have these people harassing the other bartenders. They're tired of covering for you guys anyway. Next thing I know the cops will be stopping by with all sorts of questions, and I don't have to tell you that cops make me real nervous. I don't know what you're doing but the party's over. Get out.”

“I understand,” Todd said.

“Can we keep the upstairs for a month?” Mark asked. “We need some time to wrap up some things.”

“Wrap up what? You guys have been running a fake law firm and now half the city's looking for you. What are you doing?”

Todd said, “Don't worry about the cops. They're not involved. Let's just say we have some disgruntled clients.”

“Clients? But you're not lawyers, right? Last I heard you guys were in law school getting ready to graduate.”

“We dropped out,” Todd said. “And we've been hustling clients in the criminal courts, all fees in cash.”

“That's pretty stupid if you ask me.”

No one asked you, Mark thought, but let it go. And, yes, at the moment it seemed pretty stupid. He said, “We'll pay you a thousand bucks in cash for another thirty days and you'll never see us.”

Maynard took a sip of ice water and glared at them.

Todd, stung, said, “Look, Maynard, I've worked for you for, what, the last three years. You can't just fire me like this.”

“You're fired, Todd. Got that? Both of you. I can't have this place crawling with investigators and pissed-off clients. You've been lucky that someone hasn't walked in and recognized you.”

“Just thirty days,” Mark said. “And you'll never know we're here.”

“I doubt that.” He took another sip and kept glaring. Finally, he asked, “Why do you want to stay here when everybody seems to know your address?”

Mark said, “We need a place to sleep and finish our work. And, they can't get to us. The door to the upstairs is always locked.”

“I know. That's why they hang around the bar hassling the other bartenders.”

Todd said, “Please, Maynard. We'll be out by the first of June.”

“Two thousand dollars cash,” Maynard said.

“Okay, and you'll keep our cover?” Mark asked.

“I'll try, but I really don't like all this attention.”