the state because of the unique backs this case every angle in this case you have to dig a little bit deeper than this one i'm just going to discuss this morning four key facts that i think are very important i have two sons one recurring questions that come up in my mind from thinking about this case and i have four angles of analysis that i think are helpful to approach this case the facts are generally undisputed and certainly contained in the briefs so this the four cubans that i think i'm going to highlight first is  created presumed dead estate and transferred about a half million dollars mr zakaria's money into the presumed state third in december of two thousand and nine the attorneys discovered that mr zakaria might be alive and forth in because wasn't there i want a period of at least a few months where they say they had a hint that he might be alive by virtue of the so security number showing up on a food stamp registry within the homeless shelters wouldn't cooperate with him with them and me and the homeless shelter cracked that they did not necessarily said hey areas where you go oh so that is right but they certainly had indications some point after the homeless shelter was contacted and they refused to cooperate because it was no discloses how much money it was they all in that they got a subpoena and then conversations some correct i think in that time period between december and march there was an increasing realisation that this is the guy this isn't just any random homeless shelter this is almost shelter only to the heights or mr zakaria had lived his whole life so that's another strong indication that this could be a guy just for the record is a little deficient in one way because in order for us to get our hands around this whole picture tell us what was going out with mr zakaria it was almost it was a day was it a substance abuse issue was it something different that somehow he had a half million dollars in maryland chicago and never contacted merrill lynch which let everybody in the family we think well he's he's passed away somehow or met some kind of tragic end and we can't we don't know what the answers you're correct the record is not clear you know he was homeless he was not aware of the fact that he had a half million to set this case a time where we're not normally setting cases but i would like to figure out the underlying not that it's a part of the hoose integration but it it kind of screams for some understanding how could you have a half million dollars sitting out there without some knowledge of it and doesn't meant lend itself to a reasonable belief by the family that this person is deceased was most people who have would somebody who has five hundred thousand dollars sitting in a in an account apply stance public aid so you you know i was just going because it helps to give me a full of all or understanding of what is going on in this case i understand your concern that there's nothing in the record i have spoken to him on a number of occasions he's a very private person i didn't ask what happened you know how do you forget about a half million dollars i think that's a very legitimate question he has stated he's not good with money there's a statement out effect on the record i'm not good with money and i obviously there are some issues there i don't think he would be incompetent under the law there's been no finding of the guards i think if somebody were to try to assert that i think he has enough faculties to know that he's not good with money that is an indication to me that he knows let's take this the shoulders and go to the next step because this is exactly where i was headed all right you were certain he would probably dollar samples around in applying for food stamps with no criminal intent it disappears things like that let's say we were in an alternate universe and there was a guardianship appointed for him guardian took control of the assets that were administration costs and then he recovered does he get back the full amount that the guardian took in the first place or does he get back the full amount less the cost of the ministration i believe you get back less the cost of judge coleman found reasonable we don't have before us what the record is you know replete with which is the references to the sister running off with spending money in casinos or whatever that's not in front of us today correct so all i've got is approximately ten to twenty thousand dollars in fees for them opening in a stage of doing ten years attention turns and chasing around homeless shelters that were cooperating with them so why did judge coleman abuse of discretion in assessing those he's in is that are standard i believe that the abuse came in by a contradictory or prior order that there's no f that's whether they get any fees at all not that's not the issue whether or not the fees are reasonable and fair i would concede they are fair and reasonable they were ministrations of the state i don't assert that they the attorneys did anything untoward they got taken advantage of that but let's take this one step further let's say we all agreed to it at the very least they did ten years of tax returns for this gentleman who did not have tax returns stop so they performed a service for his benefit and now he's asking for that service to be free is he not and why not what if they did a bad job at tax returns i got a set of alleging that they are but hypothetically they could have botched this tax returns and put them in a big tactical than it was already  or ignore something cost him a penalty that he'd have no recourse against them in some kind of civil proceeding i don't know he said that they certainly wouldn't go on the standard care they're not representing him as an attorney so it's not a an attorney malpracti i think that's you know and in my opinion that's the the heart of this case and i think had the circuit court previously ruled that he was owed a fiduciary duty in my recipients of the bounty to basically stand by for a heck of a long time ready to pay back the money in case the person is found alive even after the state's cost brought actually just certain when you need facts of facts this zero alive until you can prove otherwise and a presumption is just we don't know about or if it without the absence of information we're going to think he's dead but if you've got any facts that tend to prove that he's alive that presumption ambles and when that my take on that is at that point what i don't know what happens to the presumed dead estate you have somebody who's holding money that they're not supposed to it's not their money because he's not dead the only reason why the presumed dead estate has the money is because he's died for presumed to be dead and if the presumption is gone because you think you might be alive with those facts indicating that he's alive the foundation of the presumed dead estate he recognizes that there was some value does he thinks up until the time he was discovered alive those expenses were fair and reasonable would it be fair to say that there was a span of time during which there was a hint that he was alive but not confirmation absolutely in part of that the part of the reason for the lack of a firm confirmation was his own unwillingness to address the situation through the inquiries from the homeless shelter i would say it was a reasonable suspicion on his part nobody trusts lawyers right and if you're already not a percent they're mentally and set lawyers are saying they want to talk to you about some money his natural inclination was they want to take something it wasn't clear to him for some time that they already had and that they wanted to get out of you know your measured if if he was the client and that would have been recoverable under the bot in this case he's being asked to pay for it especially out of his personal files and that's not going to be covered up in how long does the special bond there is nothing in the record there's no support in the law of the statues that there's a priority analysis and why do the attorneys get priority claim to the state funds before the presume to seed it and that's assuming that the state itself has a secure claim to the flies then the presume to see didn't suffer so if you're going to have a pro you know if you're going to treat this as a state citation case which is the procedural background of why we're here you got to have a showing which isn't in the record that the so that the estate itself has a sphere claim to funds and then you can go to a party classification scheme when there's nothing to support that is an option and it could you just set that against the state not him personally that was an end run order against the state finding dad the fees and costs of the attorneys were fair and reasonable he was not adversely affected by that specific order band this whole turned his back on the only family he ever knew and chose to live a life on the street will never know what we do know is this that if it wasn't for the actions of one of my partners this man would not have seen know the point was made that but for the actions of the lawyers he would not be enjoying this money but i couldn't tell whether he knew he had the money and just and then the along with everything else and once all of this started h possible after five years but the notice came out all after almost ten years of complete attention to it in addition to that there's a third aspect of a miss is also record that in one thousand nine hundred three mr zakaria was appointed to be an remember that there are three orders that have been combined completed and in the so he'll somehow i think that that's wrong the first order was the order that was honored in march of two thousand and twelve that was the order dealing with a petition for surcharge that was file by mr zakaria alleging somehow that my law firm was complicit in the malfeasance of the administrator somehow in hamley state that's obviously a completely different issue than the one that we're here for to come from him as opposed to from the administrator who is your client well know that in the fact that the probate code says that attorneys who provide services to the state are entitle to compensation from the say that's that happens every day if we're trying to put it that the the issues that are raised by the facts of the cubbyholes of the law that what we have here is in a state and we have a duty to the people that we know that's what we're working off of and so to suggest that we have a fiduciary duty to a person that a court has already declared that is going to be a sea change in fiduciary duty law if we decide that that's going to happen now once until they met with him because of the circumstances because of the situation until then at that point then i think there is an obligation that changes and we then pursue that obligation and did what we could to restore the assets but and at that point after what your phone calls an undue delay you get back in front of judge coleman and she returns the protocols what guidance the state should give us if any with what's supposed to happen when somebody shows up a wife and i think this is a follow up to justice rogers question and that is that i think in very hard for me to put this particular fact pattern in the act well i think i think if you're i think it's easy to over analyze things and i don't mean to be simplistic but  wins in that case the the administrator has to put up exactly the same type of church that presumed dead the state administrator has to post and in that situation it if someone files claim that exceeds the amount of the distributions those distributions have to be returned and i think that's exactly the situation about the severe your opponent makes a great deal of the argument that if a presumed we see the ows attorney fees for the creation of his own estate and then then shouldn't the it was accepted by it's that's what the fiduciary obligation requires if you find that in this case you throw the fiduciary duty law on its head because none of those facts are final orders and more importantly when you're trying to make a decision as a as a poet or to look at the record here find out whether or not the court below had done the right thing you don't have a transcript you don't have a written record of the proceedings you don't know what judge coleman resolving what she did not resolve at each stage of the proceedings each one of these orders of the same for the reason stated in open court we either grant or deny them the motion that certainly didn't know with a potential distribute he was what we knew was that someone had been declared dead by at all and we operated under that assumption and once we found out facts that indicated otherwise we acted appropriately and there's no indication record that we did either to say that the form of my work did it in this case was necessary it was reasonable if he's of course are reasonable that the court below has found so this is at heart a pretty simple creditors case that's the order that's under review that's the order that was subject to the notice of appeal and that's why we believe that we should be thankful and that any order that you are seeking in the child was to recover three i will be brief i just have three points that i'll bring up why mr zakaria forgot about this fund is interesting if provides color it gives us background people but quite frankly it's none of our business if it has nothing to do he can do whatever he wants with his money it was understood that it was his money there's nothing in the record to say the guardianship would be appropriate that would have been issued there are steps that people could have taken if they were concerned about that and the absence of that it's none of our business as to why what he chose to do with his money or not to this one second of all we can't pick and choose which parts of the probate act we can apply to the presumed dead state th