nonmoving party on the stand its motion for summary judgment now the essence of the helen's claims below where that the individual defendants including messrs ross and goldfarb had entered into individual contracts to pay appellants for its services to represent personally in a large number of fraud actions that they knew were about to be filed and indeed were subsequently file  i realize you're a member of the bar of ohio and i'm hoping you can elucidate some things for me and for my colleagues insofar as i know none of us has practice that ohio is it correct that attorneys in ohio  individual agreement with individual members of a limited partnership is that correct number of living partnerships there are number of corporate two that were involved that were going to be so ok and did you get waivers of conflicts signed waivers of conflicts between these individuals and the partnerships that you represented in which they were members no you're right because i saw no conflict in their position the defense of the corporations where this is in the record but this is from the record this is timothy h t m cause affidavit in support of plaintiff's motion for summary judgment paragraph three i entered into an agreement with defendants whereby i agreed to provide legal services in exchange for legal fees and then moving on it says in the paragraph or the agreement was made between the individual defendants and me the agreement was made on a personal individual basis for each and every defendant then as i look at a letter also in the record and i don't know the exact citation this is a letter dated april twenty ninth two thousand and three to joel v brill who admittedly is not one of the defendants one of the parties for the court here but nevertheless one of the members of a limited partnership you said there may be the second paragraph there may be settlement strategies that could be affordable available for you and or  that are different are conflicting and best conflicts of interest might present itself yes or at that point in the in the end it had not occurred for at that point in the litigation defendants or the plaintiffs in that case had approached me about s and at that point they did want to treat mr brill and mr ricci differently from the other four owners so your perspective is that even though each of these entities that you represented is a separate legal entity that it's ok under the law of ohio or at least the state bar rules of ohio to represent the entity and the individuals without a signed waiver of conflict if the attorney recently believes as i did hear you honor that there was no conflict of interest among the defendants and so i monger parties and however as soon as i saw that potential rise and it was as i was leaving it was as i was leaving this case i mean that letter that you quote there was within days of my of my withdrawal of this case i indicated to two of the individuals that i was representing hey look you can get a better deal than these guys can ok and i can't negotiate that for you you need your own counsel the core of the allegations url's unified defense they were all pitching the same program they were all using the same materials it was all the same evidence against all of them and they all defended uniformly saying no this did not happen no this was all true no this was all they were not pointing fingers at each other they would not point fingers at each other they have not to this point and when i took a look at that case when i saw that there was no conflict among the positions taken by the individuals into bankruptcy is it your practice to not document attorney be agreements no your honor it's not my practice you were involved  case i would say that the fee agreement your honor is documented by the fact that they paid my feet under invoices for an entire year without any objection at the rates stated now at the time so those are the numbers were paid from personal accounts f that in those paragraphs that the that an agreement was made between you and the individual defendant and was made on a personal and individual basis with each and every defendant do you have any evidence to provide contractor these gentlemen do not dispute that there's a contract they do not dispute i did the work what they dispute is who the contract is with with them as individuals or as c m s in c l s and they provided no evidence no affidavit snow letter saying that the contract was with c m s or c l s so normally under rule fifty six discussions or analysis that would end the discussion i have said it was with them they don't deny the contract they say it was with c m s and c l s mr shand go if you're asking us to obviously send this back to the district court and go forward with with the new with the trial basically the highest level of duty that exists under our law there is a strong presumption that you must act in the best interest of your client that you must avoid conflicts of interest as you know under bankruptcy rules you would have absolutely no right to collect any fees and you would have to disgorge those you'd already paid if you had not had a proper waiver of conflict in that case whether the court had approved it i take judicial notice of the fact that you were involved in a case called shimko versus lobed in which you side in an arbitration action between you and other attorney to have the state arbitration was declared unconstitutional by the state supreme court and it all arose because that there was a dispute in the terms of an oral agreement on attorney fees with another lawyer i'm  troubled by the fact that you seem to have a practice of not getting written agreements you've got oral agreements but when you get into a if we send this back and if you're prevent her addition prevails  can you think of any reason why the lower court should not apply a very high level of responsibility to you and what you did and perhaps ask that you just gorge feed if in fact you have reached that fiduciary responsibility to your clients if that's the way the facts play out and they played that right but that was not the basis of the lower court's decision but i would say this if i and i'm sorry but my time here i would say this about the ohio it was not the law in ohio at the time that agreements between co counsel had to be in writing understand agreements with clients had to be in writing and those agreements were in writing so i was in compliance with ohio law at that time a common that's a common count approach i'm talking about a written agreement an attorney for me agreement with clients there was no such agreement in this case was there not that i know your honor there is not there is no written fee agreement and i did not recall that in writing only recently within the last year or so is a highly changed instead of the agreements must now be in writing so you know that that was not the case at that time your honor and this was not a contingent fee it was an hourly fee gentlemen were general partners and even if you accept judgment tones reasoning that the agreement was not with them individually these gentlemen admitted you were officers and directors  kitchell corporation for each term its in the court held that a limited partnership is formed by complying with section two of twenty nine three zero two the management of the business in a limited partnership is tonight and limited partners and its best almost entirely in the general partners now these gentlemen have indicated that they were officers of the corporation in their affidavit when are you referring to twenty nine three nineteen i was fee for going to twenty nine three zero two and then turning to twenty nine three nineteen year on or a limited partner will lose his protection as a limited partner if he acts as a general partner and there was an enormous amount of you know that you did not have that that's half the test right you didn't read the whole statute  of problem that is one where where somebody has been suckered into not understanding who they're dealing with and being led to believe that you were the counsel for this corporation how could you not have known the status of these folks i was there litigation counsel and i was not their general counsel they had other lawyers for you didn't honor but i knew that all four of them were general partners acting as gentle as you know you know you think you knew that they were limited partners or you thought or you knew that they were general partners but if you knew that they were limited partners then you don't qualify as i read this patch it will let me let me clarify i knew the structure of the business c m s and were limited partners i knew that but what i also knew here honor was that these four gentlemen as judgment tone found when he tried the gunther case and i directed the court to the gunther opinion where the court said dr gunther and colleagues acted as general partners and found in favor of me on that issue assume for a minute that's right just type that's correct i did not know what i believe what's what's hard to understand is you enter into a some cases without knowing the position of these individuals so yes i would say of course i knew they called themselves limited partners i knew that but i also knew that they acted like general partners they did not run reasonably believe that the limited partner is a general partner and in that case i would refer you to judgment tone's opinion in the gunter case where he faced that exact issue in sound in my favor saying that i reasonably believed from the evidence that he saw i reasonably believed that they were general partners judgement tone specifically decided that issue in my favor but mr shimko long before you ever knew judgement tell exists that you claim that you set up an individual account with each of these people why would you have done that the only reason you would have done that presumably is if you thought they were general partners for that their general partners and they would be jointly and severally liable for the obligation if you thought they were limited their concern and my concern was not the corporations or the limited partnership these four men knew that seventy or eighty people and i settled three cases against them is that they knew that these cases were going to be filed against them as individuals that they personally committed all right and i would refer the court again i think it's to another twenty nine but must remember but remember what when when this panel looks at this case we have in our minds the fact that you are  officer if you were a trust opposite of a bank and you did this in connection with your clients i think you might have a little problem were we're wrestling with the problem of a trust officer dealing with people who is basically that it if you want equity like in a quantum marilyn unjust enrichment kind of thing you must do equity you can't be in violation of a fiduciary duty and expect any court to give you re can you accept this rather the issue of whether or not i have breached my fiduciary duty was not brought to the lower court it is not before this court ok they haven't argued in this court and i would say this your honor i disagree with you strongly that i have breached surely duties to these clients i have i deny that i object to it in the sense that this if there was no conflict among these four gentlemen they in fact all four gentlemen testified in the o'connor among them but there may be a conflict between their interests and the interests of the corporations i saw not because the corporations were the alter egos of these gentlemen they ran these corporations and alter egos your honor these gentlemen with the office of the corporation they operated it day to day they were not limited partners they ran it as they ran you know and the corporations were just incidental to the defense i was providing to them as individuals it was a line of defense that i used to defend the individuals from the very beginning they were willing to sacrifice those corporations or just it was not an issue to them but even if that's true i know time's running on it just seems that even if the clients say we have common arizona ethical rules pertaining to attorneys one of those is the ethical rule one point seven which deals with concurrent conflicts of interest and the comment that you are one point seven makes clear that  smith the saying is is applicable in any case of representation of more than one client in litigation any kind of litigation there is always a potential conflict the potential conflict can come up because the waived as among attorneys as among clients multiple clients represented by the same attorney there are potential conflicts regarding payment which we have here mr shimko says that mr  clients are jointly and severally liable for everybody's fees including fees incurred by mr goldfarb or dr woodcock which may have had to do with protecting some other individual defendant's personal assets how can it possibly be sa that there is no potential conflict in what the con with the comment to you are one point seven makes clear is that the attorney has to disclose and there has to be knowing consent to the multiple representation the or representation with the individuals well if there's no representation with the individuals there and which there was not then the contract count goes away and the account he confused account stated in an open account  because we're not we're not dealing with defenses by the two corporations i agree to a limited partnerships i believe in fact your honor that yes there is always a conflict one of the companies is a management company is that i believe the general partner or the other is a limited partnership and there is always a conflict are we getting are we starting to weigh the evidence now at this point you know well your honor what we're talking about here is whether whether there was unethical conduct with which goes to the issue of the affidavit is in essence is simply a parroting of what's in it what's in his complaint i have contracts with the individuals he doesn't he doesn't say when the contracts were formed he doesn't state specifically the terms he doesn't state how they were for here is not what happened in the gunther trial the record is not what mr shimko has testified to or has argued in the course of his argument in this case the record is what was in front of judge march home and what was in front of judge marks on was was that affidavit on all the affidavit says is the court made clear up i had contracts well there's not enough substance or specificity in that to even get to the issue of weighing evidence right now but sort of playing devil's advocate you have a lot of on the basis of the record presented to the court and in this case just part tongue so that this isn't enough this doesn't get past these questions all the issue of rule fifty six because there's nothing sufficiently specific now we don't know what happened in the in the gunther trial the gunther trial is not part of this record but what we can assume is that then maybe there was a whole lot of other testimony in the gunther trust maybe in the gunther trial he came forward and he said when and where and how but we don't get to that in this case because we are we are reviewing the granting summary judgment and it's very clear that the record for purposes of an appeal from a summary judgment issued under under rule fifty six is what did the district court have in front of it when it was presented with the issue and all the facts i just stated  he just says generically i entered into with the agreement with defendants he doesn't say when he doesn't say how that that would suffice for a notice pleading but but again with the requirement on summary judgment once the moving party comes forward and makes out the promise faced a case for there being an absence of of material facts the responding party is required to come forward with six packs demonstrating that there is a genuine issue requiring a comes forward with anything that remotely demonstrates that there was actually remember that there were facts that a jury could have considered that would that could have then been elements of a contract certainly your honor and he didn't do that from your perspective but he clearly did indicate in paragraph four of his affidavit that the green that was made on a personal individual basis with each and every defense very clearly did identify your client in that sense but you're saying he had to say basically what the how the fees were to be calculated what they are for hour when the services be performed what services are going to be before him perform all that sort of thing certainly your honor and why why could he have not done not some late her party that was taken by surprise by this he's facing a summary judgment by parties that say we were there are no facts in the record to allow this case to go to trial the burden shifts to him and instead of coming forward at that point with the specific facts the liberty lobby case requires he just stands back and that amounts to no more than what the what the rule specifically prohibits which what role if any does the level of obligation that mr shimko had to the clients in the case have on the level of response that was required to the is material in that sense i think the breach producer duty goes to the issue of equity and understood that point i think i think it's very relevant going to end your your position your client's position as i understand it is that there are there was i don't want to weigh evidence but mr shimko on the eve of withdrawal asked each of the defendants to personally guarantee the fees and this is one contradicted and mr misra specifically refused to sign any personal guarantees so in these fraud and rico cases yes and this was in excess of what twenty thirty forty cases something like that yes or ok did you retain other counsel to represent you yes i did you did have a counsel not not at the scene not not during exactly the same  offices i did not even have an office there i used the home office exclusively because that was always our deal that i would have absolutely nothing to do with the operation of the business in any way ever and i never did third of the hundreds of phone calls over the eighteen months that are in the record my name was mentioned in eleven five of those eleven eleven seemed to indicate that i was on the phone again i feel five is excessive but accepting that there was no reference to where i was what i said or for that matter what anybody else may have said should go stances invoice to show that i met or telephoned him fifteen times his citation to the records page one hundred two one hundred sixty four the entirety of his billions he then goes on to specifically list individual pages by number however a quick review does not support his statement page three there is no phone call with me there's one about me page six page nine page thirty four page thirty five page thirty seven page thirty eight page twelve nineteen thirty one my name is not even mentioned the rest is more of the same there is not one time in his invoices where i contact him directly i am a very careful person i document everything i always have my whole life in eighteen months show me one letter or email that i wrote to mr sh and and you somebody in a group that you belong to says they're going to provide a service to the group and they do it for you end of it julie and you you see that they're doing it for you whether you talk to them it's clearly for your benefit is there a certain element of fairness involved here where whatever else mr shimko may have done or not done you seem to agree that he represented you individually in some of these lawsuits is not accurate to the extent that i've already testified but your honor i wouldn't use in your example i would never have have myself point in these sundry lawsuits is not correct if he did it was at the order of instruction of the corporations but you knew it was going on right you didn't say i don't want you to represent me no you did not s depositions in minute ok did he answer any pleadings in your name i believe that was included did you receive a copy of the pleadings no you did not did anyone acting on your behalf receive a copy of the pleadings never sir please remember your honor the issue of the existence of the contract was not in dispute in this case they agree a contract existed i agreed a contract existed the only dispute was where in the record it meant that the contract exists contract in my affidavit clearly states i had my contract with them they say oh no somebody else and i think that's the comedy dichotomy that should have ended the discussion on the rule fifty and if you had such as the affidavit from  elements required elements of a contract because you're talking about individuals and their weight their affidavit by what you're saying only deals with the contract between you and the corporation vendor or limited partnerships their affidavit just said yes there was a contract but it wasn't with us that's the difference or your honor i said the contract was with them they said no the contract is not with us asking you have a contract if you don't know who the parties are why i didn't know who the parties were your honor and i knew who the parties were where  saying it twice textron at that time in january when my bills went unpaid i sent them a letter and said hey look you know i i'm off you're not paying me you're going to me for two hundred thousand three hundred thousand dollars and i'm not going to pay you they asked me and they said here here here's some checks hold on to these will pay you so i stayed on for four more months i threatened to leave again and i said look the only way i'm going to stay is if you people stay and it was an iffy agreement it was i wanted them to sign with  guarantee that you wanted sign no it was a negotiation at that time your honor for me to continue to to go on with the case and at that time you said no we're not giving you any personal guarantees on this we're not going to mortgage anything at all by the way you're fired and they also den said here is a lawsuit here is what i'm filing i would have left copies right there and he would have attended those and did attend those meetings so you dealing with the general counsel of the corporations you know your honor i would do i was not i was dealing with the four individuals that there was no general counsel of the corporation they had other i don't know if they had a general counsel your honor but they did have other lawyers that were on staff and dealt mostly with regulatory matters student has the you have to clear with anybody on the corporations no i did not try did not deal with any overhead or no bid to prove responsive pleadings or  from your honor i know that i don't know where the money came from all i know is that i would be given permission to agree to a certain settlement and a check would be made it would be cut and i would see it that i know if i did not send the check don't know what accounts they came from i negotiated settlement agreements i turned in the settlement agreements to them and they wrote the checks out of whatever accounts that they took but you know court was essentially a shell at that point in time cork was always a shell from the moment i walked in court never had any assets they didn't own anything except some typewriter since and computers desks and chairs that's why there was no conflict with c m s and c l s because they were shell corporations and alter egos of these gentlemen who ran them like florentine princes counsel and i and i don't know if i ever discussed this issue with local council because quite honestly on earth i saw no conflict now if this court sees a conflict and that's that ought to go back to be fleshed out i mean i think just because there are multiple pardons that i and i often represent multiple parties in my litigation the existence of multiple parties in a litigation even in a fraud litigation does not automatically mean there is a conflict and there was no conflict until just days before and i may be wrong because i didn't properly anticipate a conflict and i could be criticized for that as you stand before us right now if you had to do this all over again would you have got written agreement i do it all over again your honor i would understand if you had gone forward understanding the rule says you presumably do now would you have got written agreement well i don't have to say that's an unfair question hindsight is all twenty twenty if i had known that this was such a hot issue with you of course i w have but from my own personal ethical view of the world no i thought i acted properly then i think i'm acting properly now i saw no need to get written agreements although i will say this when i retain local counsel they got they got written agreements ok with you not with me with the other folks as far as i know they did because both of them and this is the other thing your honor they all came in and represented these people individually as well two local you do a runner i think if if that's what's important to this court that that is an issue that judgement telling should address on the trial whether or not i rightfully should have anticipated a conflict that i did not see exist until the very end and i acted appropriately talking about was the contract and you didn't prove who the parties were what would happen well how can one of them and don't you think i think you would yes i would so if you look at the summary judgment and you don't allege the four elements  work i had to do it wasn't a question on how much i was going to be paid and there wasn't any question as to the time there wasn't i what was the hourly rate you quoted three fifty dollars your honor and that was in some written document it's in all the invoices which they paid for a year