to follow his attorney's advice you have two instances where that is proven in the record one is that he asked his attorney whether or not he needed to register these offerings in securities and his there was a wrong done by brewer and big and there may have been or i'm done by the attorneys but what brewer is trying to do here through path is to profit that is to really not going to do that i'm going to spend ninety eight percent of it on biggs operations and i'm going to take some for myself that's classic imperioli tell it is not in this context sure because what he did do mr brewer is say in  the beginning prior to the issuance of the june one your vote in the three year note if you look at the documentation itself that he turned mr arrington that he was going to use some of the money maybe a lot of the money a big and mr erin then wrote the p p o and when you look at the chart that's in the record just regarding the big drafts that the public the dead to trial for didn't want to look at but if you look at the actual give me the actual offerings that were put out by the by the by big it was all drafted by aaron who says in there on the use of proceeds there isn't anything in there about barclays it officer looked at the offering and east issues with mr brewer and mr brewer said this is what the loser my longstanding lawyer who's told me that i don't need to register and that this p p o is is adequate millions of dollars well it was honest dollars split ok i thought they were going to get an investment secured by the capital that would be released the assets that would be released by far right i don't know what they thought was going to be a broader fall of will than one it was going to be but in fact up to as you might look in the record the investors have recovered almost all of their money because there was more than enough assets in the insurance policies themselves before this court the issue is did the trial judge invade the province of the jury clearly there isn't anything in the record as there  failure to register which mr sharon says that was wrong and by the way the underlying proceedings the release of the consent decree specifically say this is not an admission this is only for purposes of  totally different standard which does not allow one to assert advice of counsel at all beppe script the civil side is doing and that's what we're allowed to do in the legal malpractise case and that's your conclusion that's not what i think it's a conclusion about those are his words no he never said that he said that i bet i spend i did use the money this was a hard times this is the recession and when you use the money wasn't supposed to be using to say that he said he was using money in fact he said i understood from mr aaron that i could do this mr heron in his own deposition says i told him he could use it for some of his for his expenses of  client came to the lawyer in mid east versus when she knew she had illegally converted the money in her possession and she went to the lawyer and said i know all i converted this money how can i wrong and then you're going to the lawyer to try to make it right maybe first responders also there's another one in in the second just macula versus roche which is and that's another one where the plaintiff it came in and always about intent because that would be encamped there is how do i get out of the fraud i already know i've committed and it's not what's going on in brewer it's exactly the opposite now you may not believe that they had committed a wrong and they were going to the lawyer to try to get away with it if you will that is not what happened here so there's anything in the record that shows that your client knew he was committing a run then you would l crapper if there's anything in the record that says that he knew was that he was committing a fraud which there is not in this record that is the premise that you have to have and then you have to have him going  new everything is going to have that he was going to take ninety eight percent of the there's evidence in the file that's a question of material fact on that issue that he went and told aaron brewer himself testified  that you didn't have to register the stuff i understand it that's all going to show and yes i understood if you look in our briefs and in even in the a police brief that i understood this money was going to be used for bit and in fact she just attached opinion also in june representation that we're going to use the proceeds of this offering to pay down the bar but parse out something else and say well they didn't really mean it no that's what your mind that you picked out out of the p p o in only one of the p p o s that mr aron wrote ok now you're saying that mr brewer should have understood therefore again you're implying his intent he should have deferred understood that he couldn't use the funds for big when it's says that elsewhere lies but again you are reading into what mr brewer's intent was and that is exactly what the and what the trial judge did when she rendered her decision that is not a lockout you have to you also it's in the contest of you also told me i didn't have to register this which he also winds up getting prosecuted for by the f c c he would have to took the whole case in totality and he gets the benefit of the  intent issue you may not think it's a strong plaintiff's case you may think it's a great defense case you may have already decided how you're going to rule if you're on the jury but that is the province of the trial court you have to have the same situation as you had in robin's medis and mackel and that is that the that there's evidence in the record that he knew and understood that he was committing an awful act to defraud these investors if you committed to that then you have that's what that's what existed in these other cases and and then if you if you had him admit that in his depositions and then he said but i was going to do it anyhow because i was going to rely on doing something wrong and i went ahead and here's how i tried to hide then you've got it you don't have it in this record you have the trial judge with due respect to her stood robin's and medis and mackel on its head she she she assumed that he knew he was going to commit a deceptive back and then went back to the beginning of june because there's also no indication of exactly when he thought he was going to have to use most of this in this and the situation think of a close reading of the case that you would see that it is the foundation of the doctrine is that the client knows he or she is committed in a legal act deceptive back and is trying to use a lawyer even if the lawyer admissions or findings that he did anything what we do have though is the on the wrongful conduct relating to the misuse of the funds and that was intentional and the court  grasso said the investors ultimately recover almost all the money and that acts in the record that is absolutely not in the record there is nothing in the record that supports that if the court court would go outside the record they would find out look at the conduct of the attorney as they keep trying to do both of those cases addressed that issue specific but they're not in the kind of sure they're saying and i understand that the context of the client whether  and big there's nothing in the record that supports that that's a reasonable interpretation of what these you know we're offering there's nothing in the record that shows that the attorney knew that he this and i spent ninety percent of th that is correct all that they put in the record is that the attorney knew he might invest some of the money in big but there's nothing indicating that he was specifically informed of the  that is correct and one of the part about the record with respect to air they quoted this and they said erin's understanding was that the portion in the big correct description of the trial court's analysis and my understanding of mr grasso as position and we believe the trial court is correct he acted intentionally using the funds in an improper manner there's there's no question i i think that the representations within the d p m were not complied and he's trying to push it off on his attorney that is attorney knew about the proceeds they never actually say the attorney considered this advice to him why it would be ok to use the proceeds in the matter he did own with respect advice counsel plaintiffs argue that number one that that defense is not available in the f c c action the case they cite for that proposition is  that implied that the funds would be secured by collateral that did not happen trustees sued accountants in that case for failing to stop and detect the l in by i am absolutely not was there any evidence that somebody else in the company did this manipulated it and he didn't know about it know all of the money away from the investors to an f p a usa account that brewer set up  our contention is that is you know stepped in that there is no benefit to brewer in this case and based on my review of the record there is no way that brewer would not benefit with a favorable outcome in this bankruptcy he remains personally liable they'd report that they would pay off yes you see judgment well that would resolve a liability he's otherwise subject to been paid off by these insurance policies so it would stand to reason that the proceeds of any recovery from your client would benefit from harm it would if if indeed that was the case but it's not the case but regardless my point is there is no way for those predators that's been shown in the record for them to recover at this point in time who are filing for bankruptcy in two thousand and eleven he did not disclose this came plane until it was dismissed undergrads traditional spot the stop many sought to pick the trustee involved so he could avoid that rule and that's why he's still in the quite sure what their argument is there's no apparent case law that requires separate and distinct acts or the acts to be combined in a particular way but then to constitute grounds for in the promise of collateral was never a pain all of those allegations are proven on the record was put forth before the trial court and they are out based on undisputed facts you see allegation concludes as a result representations in the offering materials concerning the use of proceeds and concerning the risk of the investment or materially false in this those facts are proven those facts were central to the f c c judgment of the f c c judgment is based on distortion and it's premised on the amount of proceeds that were actually see and the use proceeds as i just described with the allegations paragraph two with the claim that have been proven in this case those allegations are adequate to show misconduct under impaired electo either even sufficient to show obtain money through of false statements or omissions that are misleading which is a violation  any proof that she entered up finally i'd like to point out that brewer's claim damages in this matter requested by point three million dollars for proceeds of fraud those are their further claims still four point two million for civil penalties despite filing with the federal court a consent decree that said he would not seek reimbursement for indemnification from any other party i don't all right the spending of the money is is a threat to the argument that he knew he was committing a fraud what happened here is that of the trial judge she decided i bet there's enough here for me to determine that he knew and i'm going to apply that he had the requisite intent because that's what she said intent is part of him part to look though that i'm going to apply this and find the requisite intent i'm suggesting  scheme the investors can't go behind that and go to the accountants so but there was the but my point he really determined that a ponzi scheme had right that that is what the case law requires and the trial judge said i'm going to be cost of the bookie p p o says and the fact that he spent the money he must know even though b use a procedure section in the documents that were drafted by mr aron gives him the right to do that and he said so and at his deposition mr brewer said he and for mr airing of all of that that all the proceeds would be used by big ongoing operations and then mr and testified in his deposition that he understood if in the use of proceeds that they would be used for operations of pig he admitted in his deposition that he never advised mr brewer that they could not be used for that purpose he also testified that he understood that that they could be used for any of the purposes that were in the use of proceeds section which included investment testified that he understood that ninety plus percent of the proceeds the proceeds to pay down your loan and that is part of the argument i get that that's that's in the beginning and things change all the time in deals right and then the p p o comes out later in the p p o is the leak the p p lucas talking about barclays is talking about use of proceeds to invest in the manager it's talking about use a proceeds to to invest in f p p if it's all over the place and even the compliance officer knowing what was after mr brewer and that's a consent decree with no emissions and with a lot with all due respect lot again while you while you may think the plaintiff has a weak case and you may think that the jury will find against the