War Story II

When lawyers tell each other about their interesting cases, they are called “war stories.”

Pharmacists often ask “What is you weirdest case so far?” “Weirdest” is often replaced with “most ridiculous” or “funniest.” Anyway, you get the idea. As for ridiculous, my case files are full of matters I consider ridiculous because they I think they never should have been brought about or pursued.
But here is one from my early years as an attorney.* The pharmacist involved gave me permission to write about this even back then, the late 1990s, but I have made a few small changes to the story to preserve her anonymity. This did not occur in Kentucky, my base state.
Jill Pharmacist graduated pharmacy school and moved back home to her small town. She realized from developments in her community that it was growing and would grow substantially over the years. Too small for a pharmacy when she left for college six years before, the town was now large enough.
So Jill opened Jill’s Pharmacy. The only thing Jill underestimated was her potential. Business went from zero to sixty in nothing flat. As the years went by, it only improved. Jill moved to a larger building and created a large front end area, filling it with items the community needed and keeping the prices competitive with the big box stores miles away in a different town. She had to hire a manager to help run the place.
She seldom hired relief, one big exception being when she married Jack and they took a brief honeymoon. Their idea was to make as much money as possible with as little outlay as possible (ie, relief) before other pharmacists saw the town’s potential and brought competition directly to Jill’s Pharmacy.
Because of the long days, Jill often came home worn out, too tired to do much of anything. So, sometimes on a Wednesday afternoon, when the town’s two doctors left the office at noon, Jack would go to the pharmacy, which was pretty dead in the prescription area. They would go to a small room in the back, lock the door and…well, you know.
As luck would have it for my new law practice, the following took place: 1) Jill and Jack forgot to lock the door, 2) the manager had planned a tour of the store for school children that afternoon, 3) the manager forgot to tell Jill, and 4) the manager threw open the unlocked door, resulting in young children seeing Jack and Jill in the throes of passion.
A few weeks later I first met Jill.
There were three legal issues with the letter she got from the state board of pharmacy. The first was that the letter indicated charges against not only her but also Jack. While the law in most states will permit boards to go after non-pharmacy personnel in certain circumstances, in most instances non-pharmacy people must be referred to the state attorney general for prosecution. I argued that the board had no jurisdiction over Jack. After some back and forth, Jack was dropped from the case.
The second issue was who filed a complaint with the board. The complainant was not a child or a parent of a child who witnessed Jill and Jack, but a neighbor of one of the parents who was told the story by the mother. I knew this was a loser—state boards allow complaints from any source. But I had won the first round and needed to lose one so the board’s attorney and I were even. I had learned early on that winning was important but making sure the opposing party saved face was just as important. I raised the issue, got shot down, and then had an opponent more ready to deal when it came to the third issue.
Jill’s letter from the board stated that the board was considering charging her with moral turpitude. This is a legal concept defined as “an act or behavior that gravely violates the sentiment or accepted” standards of society. Put another, though similar, way, moral turpitude is “conduct…contrary to community standards of honesty, good morals or justice.”
I sent the board a written argument that stated that what Jack and Jill had been doing was an act that society and community condoned in a married couple. I pointed out that there was no intent to have that act viewed by anyone, much less children. I included affidavits from employees who swore that Jill had never failed to lock the door in the past and that the manager had failed to alert her to the children touring the store that afternoon.
The board attorney and I spoke over the phone again. Intent could be inferred by the failure to lock the door and the failure to communicate was analogous, he said, to ignorance of the law. No excuse. At the same time, I realized that there was a decided lack of enthusiasm to pursue this matter. The conversation ended with nothing resolved; I was invited to the board office to discuss this with the attorney and executive director.
So I made the trip. At the board office, I sat down with the ED and the board attorney. The ED and I looked at each other without speaking. After a few minutes of this, the board attorney softly spoke, “When I think about this…”
The ED threw his hands in the air and burst out laughing. The board attorney looked shocked. But a second later, thinking about the ridiculousness of this, I joined the ED. We were both laughing so hard we had tears in our eyes. This went on for quite a while.
Finally, we laughed ourselves out and managed to get down to business. The board, the ED said, had little to no interest in pursuing this. It was an accident. Further, the board did not want the media hearing of the incident, fearing the news would take a sex story and make it a bit on national news and an article in all the popular pharmacy journals.
I suggested dropping the case. This did not go over either, as there had been a formal complaint. Ideas were tossed back and forth for several minutes, to no avail.
Both the board attorney and I claim that we came up with the solution. I still say it was me, but whoever it was, we settled the matter. In court, when a minor crime has been alleged, but there are exigent circumstances, the matter may be “continued.” With a continuance like this, the prosecution of the crime is halted and time is allowed to pass. If the alleged violator does not repeat the criminal activity over a period of time, the charges are dropped. The three of us agreed to continue the matter. A letter was sent to the complainant stating what had been done—she never responded. I informed Jill, who told me Jack would not be coming to the pharmacy for any reason for the foreseeable future, much less the reason he had been there for on that fateful afternoon.
Jill’s Pharmacy continued (and continues) to thrive. A few customers who heard of the incident transferred out but the growing business more than made up for the losses. The incident was an open secret in the town, but the local newspaper was like the board—it was unsure of how to report the story, so it did not.

*My reputation was hardly well known at this time; I had barely been out of law school for a couple of years. An interesting sidelight to this story is how I got the case. I was practicing general law at the time, still trying to get my name out in the world of pharmacy. I had a plumber for a client. We were suing (national department store chain). It was open and shut for my client, so my talks with the corporate attorney were mostly friendly. Shortly after we resolved the matter, he was having dinner with his sister. Sister came from a small town in another state; the town had a pharmacy named Jill’s Pharmacy and there had been an embarrassing incident there. Sister knew that Jill was looking for a lawyer with experience in pharmacy law. My opposing counsel remembered me and provided sister, who provided Jill, with my info.

 

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