may please the court this is a medical or rather a legal malpractise case it originally started in colorado venue was transferred to illinois for an argument of personal jurisdiction and then the illinois court  entered summary judgment on the question of whether or not there was a duty of care owed by the lawyers to that particular client our position on appeal is the trial court erred in how he approached the question of whether or not a duty of care was owed and as a result of the iranians approach the truck or reach the wrong conclusion and for that matter did not consider all of the information that the tr so this or judge relied upon the bluewater partners and reddick decisions from illinois are correct you don't mention them in your opening brief correct our position is that the reliance on the state court substantive law was in error sorry steve let me clarify where i think you are going with this because your only half right and it's the unimportant half under under byrd against blue ridge electric it is certainly the case that the allocation of jobs between the judge and the jury is a matter of federal law and there's been some careless language in some of our cases but the fact is it doesn't matter because the question whether there is a duty to somebody is absolutely a question of state law whether a jury is deciding in a federal court or whether the judge is deciding it is up to the federal court the judge invariably decides this so we wind up through a circuitous ro e right back where we started from and i think the critical question is for you to explain why the duty which is a substantive thing that illinois law creates in the read of cases and the other isn't properly applied here first of all addressing your premise i disagree with the premise because the question that gets answered by the district court becomes a slightly different question it's a question of war for the judge to decide  or it's a question where as a matter of law the judge says could a reasonable jury conclude and i'm saying to a very long line of cases says that the question whether there is a duty from a to b is a substantive legal issue and it's the kind of legal issue that judges decide in federal courts that it's kind of question that judges decide in many cases but not necessarily in medical the factual foundations because they didn't go to the heart with the only factual that's in order that that's not so that's a legal argument but but if there's not a factual dispute there's nothing for the jury to decide there is something for the jury to decide because the jury can draw an inference from the facts that were undisputed that the duty existed that the the most salient fact was whether or not there was whether or not the lawyers represented that particular individual but that's not dispositive of whether or not there's a duty and so that could i think could i ask you about you said you were critical a few moments ago the district judge for not considering everything in the record i assume you're referring affidavit correct the expert report and it was pointed out that that was not dated signed or sworn in the district judge said it goes it tries to answer the ultimate question and i didn't see any response in your briefs to those points well as for the the first point i don't remember it that way is my honest answer and if i not a duty exists that the court is bound to reach the conclusion that there is no duty nor do i think it it's going to the second point which  who's the client for purposes of the duty here and you seem to be arguing for a special rule for something you're calling for the financial services industry right america's because of the regulatory structures and in practices  yes actually i suppose i could say i'm arguing for two special rules one that has to do with the fact that this is unique to the financial services industry and the other being that this is a malpractise case and just as a jury you have i'd be interested in knowing about it i also would want to know you know since who you think could take advantage of that of that rule would the financial services industry include we've got here commodities brokers right  include stock brokers as well banks to answer your spreader unions first question i can go ron i don't i'm not aware of illinois cases that tend to suggest that they would go in this direction  you're asking us to predict illinois law right right i don't think there's any illinois case one way or the other that that tells us they like about an exception for the financial services industry and then second of all the phrase financial services industry is just intended to be a way to make the briefing a little easier and more coherent all i'm really saying is this particular time and this particular lawyer in this particular lawyer should owe a duty of care to this particular  i don't know why in light of the rules of professional responsibility that make it very important for or a lawyer to have you know well understood in britain terms of engagement with clients how you could cabin the kind of rule you're talking about it's very common for a lawyer to be a lawyer you know for the x y z corporation and not the personal lawyer for the chief executive officer for that you know the person who answers the phone it's well understood that legal entities get their own legal representation this is kind of like you have to take the good with the bad you get a lot of tax benefits and other things by creating these l l caesar corporations but it means that the lawyers duty runs to the entity and there can certainly be conflicts of interest between the individual and the entity whether it's in the financial services industry or whether it's in the construction industry where there's a plethora of entities frequently created or whether it's in any other kind of industries so i just don't see where the signal is that illinois would throw out the window the rules of professional conduct that require clear and gauge what agreements and say it's just kind of what one party thought about it well there's more to the rules of professional conduct than what you cited there there's also i believe a true four point two that says that when you're interacting with somebody who you who reasonably believes or you know they reasonably believe that you as a lawyer are representing them you have an affirmative duty to take some action to disabuse of them now i'm not saying that was the nature of the duty in this particular case all i'm saying here is it's not inconsistent between the rules of the ethics and the and the duty that i'm advocating for in this arnold i'd like to address some of the points that have already been raised by the court let's start with the i think the overarching argument raised by the a arising out of an attorney client relationship either direct or indirect because a third party beneficiary status this very simple issue the existence of the duty has already the frameworks already been set in numerous federal and state court cases we have a illinois federal court sitting in diversity jurisdiction there's no conflict of law that's been raised numerous opinions have stated that in such a situation illinois law  and the law the framework applied to study it's a question of law for the court to answer in the first instance there can be factual impact on the question but it is a question of law these this is been affirmed in swear june which is this court's opinion from the seventh circuit in numerous northern district of illinois opinions as well as by the supreme court of illinois in re state of powell and in telling them so there's no the district court applied the ri handle this question any differently from the way the illinois courts do is there no i mean it's not it is fed a great regard the existence of a duty as the kind of question that the judge is supposed to decide applying the relevant law applying the relevant law and the illinois courts as well as federal courts both acknowledge there can be factual disputes as to whether or not an attorney client relationship has been charmed but i don't raise any such disputes here th there is absolutely no disputed fact here there's been no i believe this one court put it they have not just no specific facts that demonstrated genuine material contention the district court committed no legal error he got it right on some of the other issues raised by judge hamilton with regard to the expert report i would point out that even if it had been properly was considered admissible which we continue it was not in the district court agreed and they had not just stepped forth conclusions that there was a duty instead a and been an actual  i'm sorry a proper submitted opinion the district court said he read it that way in his most in his opinion on the motion to reconsider he said even if i considered this report i still don't think it overcame the undisputed facts that showed that there was no attorney client relationship or duty with the part of the report that gets into that is kind of obeid the way sort of kind of just stuck at the end of the report in it is brill i sadly on another issue that was raised by the end of a policy argument that what's the illinois law right it's very much focused on the concept of the financial industries financial services industry and opining that in the financial services industry at issue in this case there's no difference between c and the members however illinois law does not agree with that nor do federal courts who have applied illinois law agree with down that aisle seats are distinct entities they have been it has been repeatedly found in multiple opinions that your status as an officer a director a shareholder in monkeys just one of two shareholders does not render you a client of the attorney who represents the corporation or a third party beneficiary of the relationship between the corporation and its attorneys there has to be something more and there's absolutely no evidence here of more incentives case we have to say though do the policy argument for point if makes some sense b you don't have any division there's no conflict between the interests of the owner of the entity who is going to be the target of any sanction any government sanction and the l l c itself  and the advice don't just that that so that least alleged here don't disclose these negative account balances is going to have negative repercussions for both the entity and the individual with turns out to be as wrong as it apparently was right correct on that your factual point i disagree with the concept that there could have been no conflict all right there's always potential contract aren't but i'm just saying with respect to the question do we disclose what the c f t c is going to expect us to disclose it advice that's no is going to have negative consequences for both the individual and the entity i agree that it does there's it will have negative impact in the advice but the courts have analyzed that as being incidental there's always an incidental impact on officers are there can be on officers or directors or shareholders prohibited in the company's gone you know because of the action so the company also suffered because of it but the courts have made clear and i think it's a sound public policy attorney should know who they're representing while there may not have been a conflict in this little instance as to the ultimate impact on both an attorney needs to know who their clients are to avoid such conflicts and if you're going to set up an exception there should be a clear grounds for when it would apply and when it wouldn't hear mr reynolds testified that he knew they were the corporation for counsel he knew that h l represented the corporation he testified that he never they never gave him any advice personally he even testified that all of these claims arose out of legal services provided to the corporations i don't think there was any factual grounds to warrant the exception even if you could on public policy create one to be applied in this case and we certainly would disagree on even the creation of such an exception but there's there's no grounds in this know now i can't read my own notes so nevermind judge hamilton i just wanted to point out the bluewater partners decision that you raise i think was a very telling example if you were to read the record  we raised it ad nauseum in our summary judgment briefs in our motion to reconsider brief the suit the district court cites it imposed his summary judgment opinion in the motion to reconsider opinion we raise it again on appeal we have a whole three pages devoted to it frankly it's how i did the deposition was reading the bluewater sets why the testimony matches up so clearly and the failure of the plaintiffs to address it in any shape form or to raise any facts that would disagree with it even if they didn't trust it directly i think is very telling as to the very lack of grounds they have to show a duty exists in this case either directly or indirectly  i guess in short our argument boils down to the district court applied the corrected analytical legal framework to the issue before it whether duty existed or not its nature that's not the issue the issue was whether duty existed now  scope or anything else and the plaintiff set out no specific facts that demonstrated a genuine issue of tribal fact the district courts grant of summary judgment was correct and we would ask that you have heard that there's no other questions i say thank you thank you very much i'll give you a full minute i kind of nicely boiled it down to one question is is this an incidental burden this was a direct burden and i'm not even commenting on whether it was a severe burden or not a severe clearly was a severe burn but it was a direct burden and then you know when you're trying to decide as a court whether to impose a duty it becomes this analysis of the totality of the circumstances and what i would suggest to the court finalist what's the burden on the lawyer in this case how hard would it have been to just say you should go get another lawyer because my burden here is clearly cut off at the at the limits of the l l c and so i would ask that you reverse and remand for the proceedings thank you but i thank you thanks to both counsel will take the case