CONFLICTS || The Phone Call

The Phone CallAuthor(s): Lawrence J. FoxSource: Litigation, Vol. 23, No. 1, CONFLICTS (Fall 1996), pp. 8-13Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759884 .

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The Phone Call

by Lawrence J. Fox Vivian Langley was proud of her accomplishments, particu? larly that she was the first female partner at New York City's

Halstead, Flame & Tetley, a firm that had grown from less than 40 lawyers in the late '60s until it had 500 lawyers in seven offices across the land and in London, Paris, and Hong Kong. While the firm's growth had been fueled by Halstead, Flame's legendary role in so many of the headline-grabbing corporate takeovers and going-private transactions that char? acterized the world of high finance in the last half of the '80s, the firm had used its extraordinary profits to become a leader in many other fields of specialization. Yet, even in the '90s, despite the slow down, the firm still looked to its mergers and

acquisitions work to generate half of its revenues. And Vivian was right in the center of that activity, leading teams of Hal?

stead, Flame lawyers as they handled massive changes in

corporate ownership with all the ease and aplomb of Bobby Fischer rearranging chess pieces in a championship match.

Everyone had confidence in Vivian. Her income was enor? mous, even by large firm, New York standards, and Vivian was remarkably satisfied with her status at age 50. She owned a magnificent co-op on East 65th Street, featuring a

delightful collection of folk art?Pennsylvania Dutch quilts, delicately stitched samplers, and redstone pottery?dis? played in room settings that included the finest in custom modern furniture. This was supplemented with a little coun?

try place in Litchfield, Connecticut that, fortunately, was cared for by the farmer across the road, since Vivian's prac? tice meant that for every three weekends she scheduled to get away, at least two were canceled to complete the next big deal. She enjoyed a wide circle of friends, mostly from the

industry, who were tolerant of her erratic schedule and her

high quotient of 10 p.m. dinners. The only thing missing, which Vivian shared only with

herself, was her securing her own clients. She did not know the reasons for this failure to get a call; but when the client calls to Halstead, Flame came, they did not come to her. Was she only able to command respect from her colleagues at

Halstead, Flame? Not really, since clients always seemed to

Lawrence J. Fox, Immediate Past Chair of the Section of Litigation, is

with the Philadelphia firm of Drinker Biddle & Reath.

welcome her role in the transactions. Was it her age? No. It was not that. Malcolm Lerner, only 38, had already landed two major takeovers. Perhaps she was not getting the cover?

age her colleagues often received from a fawning financial

legal press. That would have been true at one time, but in the last two years The American Lawyer had featured her twice in its "Big Deals" column.

The last factor she wanted to attribute it to was sexism, but in the end, she knew that had to be it: Wall Street?certainly

M & A Wall Street?was still a male-dominated world. How rare it was for one of the major investment banking power? houses?Goldman Sachs, Merrill Lynch, Pru-Bache?to have women in the top ranks of their deals. Vivian was always negotiating in a world of men; a cast of investment bankers clothed in custom suits, Gucci ties and complementary braces, boldly striped French cuffed shirts highlighted by the

contrasting white collars, and monogrammed cufflinks. The

only sartorial statement she shared with these managing directors was the Ferragamo shoes both the men and she affected as a final statement of affluence and good taste.

As much money as she made and as well regarded as she was, Vivian knew, in the secret recesses of her mind where she shared her disappointments and insecurities only with herself, lest the outside world suspect the slightest scratch in her polished veneer, that she would always be dissatisfied until one of the famous calls to action came directly to her. As much as the adrenalin pumped the minute she would be summoned to Tom Gates's or Gaylord Hornwell's office, to be told of the latest project X and the important role she would be expected to play, she believed that the day she received a direct call there would be a new rush, a greater high, one more addictive than those said to be caused by cocaine. Yet, this experience remained a mere hope, not unlike the way she always longed for the next romantic encounter to deliver the sexual fulfillment that she now

despaired only existed in the trashy books she used as an

escape from the pressures of her work world. But then, out of nowhere, the call did come, and, as her

dreams had foretold, at a time when she was least able to han? dle it. The Bell Atlantic takeover run at Walt Disney was just in its second week, and Vivian had been assigned to head the

Litigation Fall 1996 Volume 23 Number 1



team at Halstead, Flame that was planning a competing bid on behalf of Microsoft, when Vivian's secretary announced that Wallace Silversmith was on the line. Vivian knew Sil? versmith from earlier transactions?not as Halstead, Flame's client, but on the other side. Halstead, Flame had saved

Kemper from this British tycoon's avaricious clutches two

years ago, and Vivian herself had succeeded in forcing Sil? versmith to up his bid for Superior Tube five dollars per share before he completed a takeover the Board of Directors of Superior publicly resisted, but secretly applauded.

"Hello," Vivian began, her mouth suddenly becoming parched, "this is Vivian Langley."

"Lord Silversmith here," a bass British baritone

responded. When did he receive royal recognition, Vivian wondered. How odd that the swashbuckling tactics

employed by raiders of Silversmith's ilk could receive more than a patina of respectability by royal fiat.

"How can I help you, Lord..." Vivian stumbled not know?

ing the correct form of address. "Please call me Wallace. Please. Particularly if you are

willing to become my solicitor." Vivian always melted at the sound of the English accent.

In her head she knew, like Silversmith's new title, it covered a multitude of sins, but it sounded so refined that even mun? dane requests, like a doorman calling a taxi, carried all the

dignity of one requesting the arrival of a hansom cab led by a team of white horses.

"How can I help you . . . Wallace?" Vivian remained unnerved.

"Before we even talk I must know if you can take a posi? tion adverse to IBM? I want you to maintain this request under the deepest secrecy. No memos to your office. No dis? cussion with any colleagues unless they need to know. Just a

computer check of your firm's database."

"You're going to make a run at IBM?" Vivian blurted out without thinking.

"There will be no discussion of the reason for my inquiry until I get an answer. Frankly, I'm not optimistic. To be hon? est, you're the seventh firm of which I have inquired. IBM seems to have everyone tied up. But then I thought of you and how you finessed me out of five dollars per share for that worthless Superior Tube."

Vivian didn't know whether to be insulted, reargue the merits of the Superior Tube transaction, or start salivating at the thought of a takeover of IBM. She didn't remember any

work for IBM, but Halstead, Flame was so large. And her firm certainly thought it was worthy of representing IBM.

Ignoring the urge to discuss irrelevancies, Vivian replied "I'll check right away. We can access our computer our? selves. No one will know and I'll be back to you in an hour.

Where do I reach you?"" "I'm in Bermuda, but I'll call you, say three p.m. your time." This was it. Vivian had received her call. A breakthrough

had occurred. But, no sooner had she savored that accom?

plishment, than she realized there was another goal to achieve or the delicious phone call would be no more than a footnote to her career. She had to land the client.

Was There a Conflict?

Accessing the computer, Vivian remembered all those times she had hoped against hope that something that was

already a "done deal" would work out OK: opening her first set of SAT scores, slicing open the envelope that contained her grades each semester of college and law school (particu? larly first year of law school when the grades meant so

much), unveiling the bar exam results (admittedly, an irra? tional trepidation given the high pass rate, but one Vivian jus? tified because the ignominy of failure would have been that much greater), and finally, the unopened letter from Hal stead, Flame from which she so wanted a job.

She typed each letter of IBM ever so slowly, then hesitated over the enter button only to retreat back to the keyboard to add the full name of the company to her search, lest that was the

way it appeared in the firm database. Then, plunging forward, she pressed "Enter" and stared at the screen as if it were a Ouija board that contained all the information about her future.

Was IBM a client? The answer: twenty-three entries for IBM, but only three as a client and the most recent in 1987. A former client. Vivian's heart leaped. IBM had shown up, but perhaps the giant computer company was a former client. If that was so, and the work Halstead, Flame had undertaken was not substantially related to Lord Silversmith's present representation, Vivian could sign up Lord Silversmith with? out calling IBM to waive a conflict, a call Vivian knew, if Sil? versmith's intentions were as hostile as she speculated, she could never make.

Vivian sprang into action, visiting in tum, behind closed doors, the three partners whose names appeared beside each of the IBM matters. Two files involved breach of contract

disputes between IBM and two of its customers over the

timely performance of the mainframe powerhouses that had been IBM's stock-in-trade during the '70s and early '80s. These were minor matters for both IBM and Halstead, Flame, and both were clearly closed. The 1987 engagement had been more complicated, an antitrust suit by dealers call?

ing on Todd Evans, the former FTC Chairman, who had made Halstead, Flame a front-rank antitrust firm in just a few




short years. The case had been settled, Todd explained to Vivian, though the court had retained jurisdiction to enforce the consent decree that IBM had gleefully accepted as a won? derful alternative to a possible treble damage claim in the mid-nine figures. Whether that was enough to make IBM a

present client, Todd couldn't say, but nothing had occurred in three years and, as best he could tell, the agreement was

working perfectly well. When Vivian withdrew from his office, convinced that the problem had been solved, Todd added, "Of course, if anything did go wrong, I would cer?

tainly expect to be called." But Vivian was already formulat?

ing her acceptance speech to Lord Silversmith as she cut a handsome figure down the broad halls of Halstead, Flame. It

The plain Lord Silversmith

explained, was to take over and break up IBM.

wasn't just her aquamarine Chanel suit that provided her with such poise as she smiled at her secretary, Donald, and

gathered herself behind her grand mahogany desk waiting for Lord Silversmith's next call.

The wait seemed interminable and, as the clock read ten minutes past three, the pessimistic goblins seized hold of Vivian's brain. Reasons for his rejecting her paraded through her mind: one of the six firms Lord Silversmith called before he tried Vivian had solved its conflict problem; Lord Silver? smith had called an eighth firm that accepted the assignment on the spot; Lord Silversmith had second thoughts about hir?

ing her; she had sounded too pushy asking whether it was a

takeover; she had lost control of her voice; Lord Silversmith had decided that hiring a woman was a mistake. The passage of fifty minutes gave Vivian plenty of time to conjure up twenty reasons why he would never call again, as Vivian

wasted almost an hour when she should have been working on the Disney matter. It was quarter after four when Donald announced that Lord Silversmith was on the phone. Vivian had been so distracted by her oncoming depression that she didn't even hear it ring.

"Hello." She grabbed the receiver with the tenacity reserved for life preservers.

"You'll pardon my tardiness, gracious lady." Silversmith was at his stentorian best. "I forgot Mrs. Silversmith and I had an engagement for tea at the Governor's palace. Quite dreadful, I must say, but you can't snub the Governor. Not when you own ten Bermudian corporations. Anyway, my apologies. I'm sure you had plenty to keep you busy."

"Of course," Vivian lied. "We're quite busy, as you can

imagine." "Not too busy for Silversmith Partners, PLC, I should

hope. Well, have you cleared any conflicts of interest? Are

you ready to start?" "Yes, sir," Vivian replied confidently. "IBM is a former

client on three minor matters. Assuming your representation is not directly related to those, I am sure we are OK." Vivian then proceeded to describe the three matters, wondering as she

did so whether she needed IBM's permission to disclose these details to Lord Silversmith. There followed a long silence, too

long by Vivian's standards, and one she had to break. "Is everything alright?" she tentatively inquired. "I was just thinking," Lord Silversmith began, "how I

want to avoid any conflict fight over this. But you assure me

you can undertake this work. We need to be clear on this.

Any delay could ruin our plans for breaking up IBM."

"Breaking it up!" Vivian knew she sounded too startled. "Yes. Our plan is to take over the company and finance the

whole thing by spinning off IBM division by division. Our investment banker's calculations show the company is worth twice its current stock market valuation if broken into its

components. The mainframe division alone should sell for $55 billion. This is really big, and will require all the resources of your firm."

"I'll say," Vivian sputtered, suddenly overwhelmed with the enormity of the call.

"We'll get started tomorrow morning. I've arranged a

meeting with the Solomon Brothers bankers at their offices for 11 a.m. Bring your team along, Vivian, and we'll go forth to battle."

"We'll be there, sir, ready to roll up our sleeves." Vivian's delight was only slightly compromised by how

overwhelmed she was at the scope of the project. She may have been forced to wait forever for her call, but when it

finally came, it brought with it not only the biggest corporate transaction of all time, but one that was the equal of ten calls.

With one ring of the phone, Vivian had gotten her fair share of takeover calls for a lifetime.

Vivian could hardly contain her pride as she dictated to Don? ald a memorandum to be sent to each partner in a special sealed

envelope, disclosing the latest project X, which she chose to code name Baby Blue. Nice touch, she thought, confirming with Donald that, one more time, she was trusting him to main? tain strict confidentiality of the identity of the latest target.

Vivian was sitting at her glass-topped desk bathed in sun?

light from her southern exposure on the forty-third floor, com?

posing and recomposing the team she would assemble, only guessing at the numbers that would be required, when Gaylord Hornwell came racing through the doorway. Vivian first noticed that he wasn't wearing a jacket. Hornwell, an old school lawyer lured from Sullivan & Cromwell five years before, never left his office without his suit coat. Nor did he ever visit Vivian. Though Vivian was definitely one of his favorite colleagues, it was always she who went to 46 to visit Hornwell. This day he didn't even bother with his usual courtly pleasantries for which he was noted at Halstead, Flame, since manners were not a hallmark of the aggressive firm style.

Stealing My Client "You're going to take a position adverse to IBM? We're

going to? Halstead, Flame is going to try to break up the world's fifth largest industrial enterprise? After all I've done to try to bring them in as a client? I cannot believe it."

"What do you mean?" Vivian was truly mystified. "Ever since I left Sullivan & Cromwell my goal has been

to have IBM retain us. I've been courting them nonstop. Brought in the dealer antitrust case. Made a Board presenta? tion. Invited the Chairman to speak to the New York Alumni of Phillips Andover."

"They're not a client now," Vivian interrupted. "That's a good point. But that's not my point. My point is




that as soon as IBM gets word of this hare-brained scheme, I am sure they will call us. We're the logical choice. But not after what you've done."

Vivian was perturbed. As much as she admired Gaylord, he was suggesting the absurd notion that Halstead, Flame should not undertake the certain representation of Lord Sil? versmith to take a chance that IBM might, just might, pick Gaylord for this assignment from among ten worthy candi? dates at other law firms. Vivian knew if Gaylord were going to get credit for either call, he would never take a chance on IBM. And it was clear that any lawyer at Halstead, Flame who was disinterested on the credit issue would also stick with Lord Silversmith. It was only Horn well's selfish inter? est that was driving this conversation.

Like Representing a Child Molester "I've done nothing. Lord Silversmith has contacted us. We

were free to take the representation. We have accepted the

engagement." "It's a major mistake, Vivian. You're blinded by your own

ambition. IBM should never be broken up. It's a great com?

pany. Some deals are just too much against the public inter? est for right-thinking lawyers to undertake. Representing Lord Silversmith here is like representing a child molester. The guy may be entitled to representation, but it doesn't have to be Halstead, Flame that gives it to him."

"Gaylord, I hear you. But it's not for us to decide. This firm's stock-in-trade is representing clients undertaking imaginative corporate restructurings. The market will decide

whether it makes sense. Our job, as we have said so many times, is to make sure the market gets that chance." Vivian liked her answer.

"I can't accept that. I'm calling a meeting of the Executive Committee."

"You're going to what?" Vivian responded. "Call a meeting of the Executive Committee. I don't think

this is the kind of decision that can be made by one lawyer at

Halstead, Flame."

"What decision?" Vivian was now seething. "Whether we represent sleazy Lord Silversmith or the

most prestigious computer company in the world." "But we don't have that choice. Only one of those poten?

tial clients has retained us. And that retention precludes us from representing the other. I also don't think, with all due

respect Gaylord, we need any disparaging remarks about Lord Silversmith. If you were judged by the character of some of your clients, you'd be mired in the muck."

"Well, we'll see if the Executive Committee agrees with

you, Vivian. We'll just find out." "But I'm not on the Executive Committee. No woman's

ever served on our Executive Committee, as you well know. Is this going to be one of your ex parte tricks like you pulled on Shearman & Sterling in the tobacco company takeover?"

"If we need to hear from you, I'm sure we'll give you a call. Meanwhile, calm down, Vivian. You have no idea how shrill you sound when you're trying to be ferocious. You know I've always defended you when others have said women lawyers don't know how to get angry without losing their dignity." With that final outburst, Gaylord turned on his heel and

almost ran from her office, leaving Vivian furious and feel?

ing helpless. Should she call the Chairman and head this off? Should she take steps to ensure that the other members of the

Executive Committee would see it her way? Or at least give her a hearing? Was Gay lord right that she was not being effective because she was so emotionally involved?

At that moment, the phone rang. It was Spencer Corcoran, a managing director at Salomon Brothers whom she had met

only once. Spencer reintroduced himself and offered to pro? vide Vivian with some background for tomorrow's meeting. Vivian hesitated only seconds whether she should listen to this confidential information, concluded that the more she learned the less likely it was that the firm could represent IBM, and proceeded on a quest not only to prepare for the Lord Silversmith engagement, but also to build a shield

against what she feared might be an adverse Executive Com? mittee decision. If anyone ever questioned why she took this call after her conversation with Gaylord, her answer would be that she already knew the most confidential fact of all? Lord Silversmith was going to make a run at IBM?and the accumulation of more information was harmless error.

Vivian recognized that by taking the call, she was pre? cluding herself from springing into action against Gaylord's inevitable onslaught, but Vivian believed the call from

Spencer was a sign that staying on the high road was pre? cisely the strategy she should adopt. Spencer's call, more? over, was fascinating, containing the broad outlines of what Vivian viewed as an elegant analysis of IBM's operations, its cash position, its business prospects, and the value that could be generated for its shareholders if a dramatic breakup of the

company were accomplished. Vivian listened to the hour

long presentation, frantically filling a legal pad with as many details as she recalled conscientiously doing when her His?

tory of Art professor launched his legendary lecture on the Gothic Cathedral. Vivian thought how ironic it was, if Lord

" Well, let's just say your new client may be a lord, but he's no angel," Vivian was warned.

Silversmith and his advisors were correct, that IBM had

spent tens of millions with Cravath, Swain & Moore to avoid

just what Lord Silversmith had concluded was in the best interests of IBM's shareholders.

Donald stood in Vivian's doorway for a few minutes before he caught her attention, finally clearing his throat to force her to look up from her assiduous note-taking. Vivian excused herself immediately, cupping her hand over the

mouthpiece of her handset. "It's the Chairman. He wants to see you in the Flame Con?

ference Room in five minutes." Vivian had almost forgotten what was occurring on the

second front. Lifting her hand, she returned to Spencer. "I've got to meet with my team in a few minutes," she lied.

"I didn't realize how long we've been talking, but I've got to brief them for our meeting tomorrow."

"Well, I was almost done anyway. We'll see you at our offices at 11 a.m. Lord Silversmith won't make it by then, but




that will give us some time to discuss the Silversmith prob? lems out of his presence."

"What d'ya' mean?" Vivian sensed a problem. "Well, let's just say your new client may be a lord, but he's

been no angel." "I'll keep that in mind," Vivian cheerily rang off, more

than a little apprehensive about Lord Silversmith's nether? world connections.

"Donald, how'd the Chairman sound?" "Stern. Abrupt. Nothing out of the ordinary." "Well, I may as well go up there now. Knowing my con?

niving partner, Gaylord, it's probably too late." As usual, Vivian took the stairs. She got so little exercise,

this was her one obeisance to the notion that a sound mind

required a sound body. But today, her legs felt heavy, and her walk down the hallway to the conference room lined with memorabilia of the legendary founding partner was sur? rounded with dread. Should she knock first, Vivian won? dered. Hell, no, she answered herself. These were her part? ners. This was her firm.

Her bold entrance seemed to startle the five lawyers gath? ered along one curved end of the massive grey granite con? ference room table that dominated this room, the largest

The plan was to represent both Lord Silversmith and IBM. This would save money for both clients.

meeting facility at Halstead, Flame. The rich late afternoon

sunlight streaming through the conference room's expansive windows landed amidst the cluster of white males, empha? sizing the sartorial sameness of her partners. White collars and white cuffs reflected from each of the rich leather chairs

occupied by Vivian's powerful colleagues. "Sit down. Sit down, Vivian." The Chairman motioned

generally to the twenty unoccupied chairs. Vivian chose one

just a couple removed from her nearest partner. "We've decided Halstead, Flame just cannot afford to put

ourselves in a position where we are not able to accept IBM's

phone call, Vivian. You'll just have to explain that to Lord Silversmith."

"I'll what?" Vivian's voice betrayed her frenzy. "Yes, we've been discussing what a major time invest?

ment Gaylord's made with Big Blue. He's been courting the

company ever since he left Sullivan & Cromwell. We can't

just abandon all of that," the Chairman intoned. "Better to abandon my client? My real client? It was my

phone call." Vivian was trying to control the tone of her voice with only marginal success.

"What does that mean?" This was Gaylord talking. "For years I've wanted to get a call. The Chairman gets calls,

you get calls. Even Malcolm Lerner gets calls. But my phone has never rung." Vivian was sharing her hidden feelings. "And now the biggest call this firm has ever received came to me."

"What difference does that make?" the Chairman

inquired. "We don't worry about who gets calls at Halstead, Flame. This is a firm, Vivian, that doesn't have to worry about getting calls. The important thing is to do what is in the best interest of the firm."

Vivian felt like a scolded school girl. She wasn't really putting her interests ahead of the firm. This was simply choosing Gaylord's speculative venture over Vivian's real client. Yet another example of the Old Boys' network that Vivian had been confronting from the day she entered Yale Law School, one of only ten women in a class of 150. The Executive Committee's decision was unfair and unjustified, yet they had made her feel guilty.

"I can't agree with your decision." Vivian felt the tears

beginning to well up as she looked the Chairman in the eye. "What you are doing is wrong. And what am I supposed to

say to Lord Silversmith? How does that conversation

begin?" Vivian had adopted the most self-righteous posture she could achieve.

The room fell into silence. It was a Mexican standoff, as no one present was quick with an answer to Vivian's final

question. Then Mark Watkins stood and walked over to the window,

staring across the East River to the industrial landscape of

Queens. Without returning his gaze to the room, Mark

began. "You know, I think Vivian's right. As correct as we

thought Gaylord was, Vivian's right that we can't turn down Lord Silversmith. Not at this juncture. Not at a time when IBM hasn't even called us."

"But what do we do?" This was Gaylord asking an honest

question. "We call Lord Silversmith and tell him we're going to rep?

resent him and, if IBM calls us, we'll represent them as well." Mark spoke the words so slowly and off-handedly, one would think he was asking someone to pass him a legal pad.

"We'll what?" Vivian's voice was in the upper register. "Look, Halstead, Flame is the best takeover firm in the

world. We represent acquirers. We represent targets. What? ever we do, our work is exemplary. So, on this one, why don't we just agree to represent both of them. Vivian will lead a team for Lord Silversmith. Gaylord will lead a team for IBM. We'll erect a screen between the two teams, and each will get the best representation money can buy."

"What a great idea." Gaylord was all smiles. "It's just like when we do our NITA training of our associates, and we break up into plaintiffs and defendants. We all took it so seri?

ously. Why, last year Ken Crossland, who led the team on the other side, was so angered by the little trick we pulled, using his password to snare his cross-examination outline from his

computer account, he didn't talk to me for two weeks. We can tell each client the fact that Halstead, Flame lawyers are on the other side will only make us more zealous than if

Simpson, Thatcher was representing IBM. I can't imagine anything that would motivate Vivian more than knowing she's maneuvering against me."

"Actually, the plan will also save both clients money." Mark spoke, though he appeared still fascinated by the view of the city. "We can have mundane research done only once

by a third team that can supply each side with basic memo? randa of law. You can imagine how much redundant research is done in these cases when each side has to do its own. And since we're all in the same building, they'll be no need for

messengers or faxes. That alone will save thousands. Even the all-night catering will be cheaper if our kitchen staff can




provide on-demand meals for all the lawyers on both sides." "Well, we will have to make sure no one pulls the fast one

Gaylord pulled on Ken during NITA training," Vivian inter?

jected, though she couldn't believe she was listening to this discussion, let alone participating in it. "I don't want Gaylord looking through my account. Is that agreed?"

"Oh, of course, Vivian." Gaylord was still smiling at the

simplicity of the solution. "I only did that to jerk Ken's chain. That was a moot court. But this is for real. Our team will agree not to eavesdrop electronically or otherwise. In fact, we should agree that the Lord Silversmith lawyers will stay on 43 or 44. And the IBM lawyers will stay on 46. We'll use 45 as neutral territory for negotiation meetings. Can you imag? ine how much we're going to save the clients just in cabs?"

Waiving Conflicts of Interest "But, how are we doing to pick the team, Mr. Chairman?"

Vivian asked. "This is only acceptable to me if I have Chilton Ross on my team."

"I propose we have a coin flip for first choice. The winner will choose one; the loser the next two, and then alternate thereafter," the Chairman answered.

"Sort of like the NFL draft," another of the Executive Committee members remarked, but no one laughed.

"That's OK, so long as Gaylord agrees if he's first he won't choose Chilton," Vivian shot back.

All eyes turned to Gaylord, who looked down and then offered, "Sure. If it will keep peace in the firm and avoid any further conflict, I'll pick someone else if I win. But you have to use your first pick to choose Chilton or else there's no deal."

"This only confirms how well this is going to work," Mark observed. "Each client is going to be ferociously repre? sented."

"And Halstead, Flame will earn all of the fees from the IBM takeover. What a breakthrough in business development." This was Andy Mein, the chief financial officer of the firm. "Given the volume of business we send out the door each year because of so-called conflicts of interest, if this engagement works, all our projections for new business across the next five

years are probably low by at least ten percent." "But that's just incidental, Andy." The Chairman rejoined

the discussion. "The important point is that the unique Hal? stead, Flame level of service will be offered to far more clients than we could offer under the old regime, when out? dated notions of client loyalty would have precluded such an

approach. We know that now each time Halstead, Flame turns down a client because of a conflict, that client really is unable to get comparable services elsewhere."

"There is one problem, though," Vivian interrupted. "What's that?"

"Well, we've always prided ourselves on our won/lost record. I think it's Gaylord who always says we never lost a takeover battle. Now it's inevitable that Gaylord's represen? tation of IBM will be his first loss."

Everyone laughed, but Vivian was not letting go of the

point. "No, I'm serious, guys. What will we do?" "Well, we could use an asterisk like they did for Maris'

home run record," Mark suggested. "I don't think that will be necessary," the Chairman began.

"I am certain that both teams will be so effective Lord Sil? versmith and IBM will both be able to say they won. After all, winning is an elusive concept when it comes to these bat? tles. And, of course, we do know who the big winner will be:

Halstead, Flame's imaginative approach to what looked like a knotty problem."

"I hate to say this," Gaylord actually raised his hand before he spoke, "but we still haven't solved everything. Assuming our clients agree, what if we have to go to court? If I recall correctly, isn't the one conflict that's not waive able, the representation of plaintiff and defendant in the same

litigation? Am I right, Mark?" he asked turning to the firm's ethics guru.

"You do raise a sticky point, Gaylord. But if these sophis? ticated clients agree, we should be able to solve this. Either we'll get local counsel in Delaware to front for one or both teams, or we'll get one team or the other to enter their

appearances as individuals, not in the firm name." Mark sounded quite unconcerned, but not Vivian.

"If anyone's got to give up the Halstead, Flame name, it should be Gaylord. Lord Silversmith called first. The least he should be entitled to is to be represented by the real Halstead, Flame. Our firm's reputation precedes it and, to the extent that his position can get extra credibility from being identi? fied with Halstead, Flame, I demand this final concession to

go along with this plan." Vivian recognized she was pushing pretty hard here.

Gaylord sat silent, all eyes upon him. "OK. OK. If it will close the deal, I'll agree not to use the firm name in any papers filed in the litigation."

"Or on press releases," Vivian demanded.

"Anywhere. I'll just use my name or invent a firm name

using whoever's assigned. And we'll use the satellite office address to avoid confusion, as well."

An Ethically Weird Solution "Then it's a done deal." The Chairman sounded smug.

"We've really accomplished a breakthrough here. One for which we are indebted to both Vivian and Gaylord for their

tenacity and good sportsmanship. Thanks to them, Halstead, Flame may be entering a new stage of prosperity and service. I thank you all."

Following handshakes all around, Vivian walked down the stairs back to her office. As she exited, Andy said "May the best man win," followed by a nervous laugh which might have been prompted by his sexist slip or, perhaps, the ethi?

cally weird solution. "How'd it go?" asked Donald as she approached his work

station.

"Fine. Just fine," Vivian replied. "Doesn't sound it," Donald never minced words. "Well, let's just put it this way. We are either about to enter

an ethical quagmire or Halstead, Flame will make profes? sional responsibility history. And it's far too early to tell.

Will you ring up Lord Silversmith for me? He should still be at the Princess in Hamilton."

In a matter of seconds, Silversmith was on the line. "This must be important if it couldn't wait until tomorrow.

How can I help you? Everything is alright isn't it?" Silver? smith gushed Englishness.

"Of course. Of course. There's just one little point I thought I ought to touch base with you on. Before tomorrow. I'm sure

you won't mind, but our Executive Committee just met..." At which point, as Vivian rubbed her forehead with her

free hand, Donald quietly closed her door lest his ability to hear the discussion yet to come make Vivian nervous. 10




Documents

CONFLICTS || The Phone Call