you're representing global enterprises your honor if i could i'd like to reserve three minutes of rebuttal time that she started and you can see again judge gold the district court here in in our view prematurely dismissed on summary judgment global legal malpractise and breach of fiduciary duty claims against the montgomery purdue law firm despite the existence of clear factual issues in a circumstance where there were intensely factual questions to be determined i think critical to this court's analysis or are several points that their emphasis the first is that the two pieces of litigation that are critical here the havea case in the stabber case were according to the state court significantly related they were related litigation and this plays into the question about conflict of interest whether the matters are substantially related to the underlying case which resulted in the eight point four million dollars judgment represented global that's correct with one additional fact and that is that the montgomery purdue firm represented a global employee paris in that litigation is well ok morning hand firm decided not to participate in the representation of global and yet also the fact that you know you had this this related litigation the stabber litigation that arose out of the same chartering of the vessel so you had in the lawsuit question that would come up in the course of the trial of the malpractise claim but it's pretty clear that we had a team effort being undertaken to represent to represent global and that litigation director had the responsibility of filing expert report in a timely fashion well it looked like it was it was by our moynahan but you also had the circumstance where you had a team effort you had my gum reproduced lawyer intimately involved in the issues and this is our contention with respect to the peripheral duty concept where there was an attorney client relationship you don't get to whistle past the graveyard when you see obvious circumstances of malpractise like this where responsible for locating in a dentist find the expert damage witness wasn't well what we're talking about this was initially undertaken by mr crane but let me point out again under washington law under mazower on that's an undivided duty of loyalty to the client that there's an obligation to  basically both have a responsibility to fully present and articulate the theory on behalf of the a client i'm not trying to interfere with or dispute your arguments on through i miss trying to get a couple of things clear should a lawyer from the bow foremost firm was responsible for identifying the damage expert and finally in a timely report correct he undertook that responsibility and that did not happen it did not happen but i should point out that mr goslar also had a responsibility to have an expert witness on damages with respect to m s i that was not fulfilled under these circumstances ok go ahead joe what you have here is a question that really in terms of the legal malpractise boils down to the question of is there an attorney client relationship and under washington law under a trio of cases of the washington supreme court starting with mcglothlin born versus cody and then lastly the deets versus doe case it's a question of fact did the client subjectively believe that the client had an attorney client relationship and was that understanding objective lee reasonable there are all sorts of circumstances as we've pointed out to the court here and to the totality of circumstances approach to suggest that mr lee believe first of all he said he subjectively he believed that on gummy produce was his lawyer in this litigation but in addition that was something that would be objectively reasonable or at least an issue for the trier of fact to determine prior  to the litigation there was a conflict waiver son wasn't there there was and what did that concern well i think it was the perceived potential conflict that  existed in these circumstances ultimately that proved to be a fallacy however what it proved to be i'm not interested in there was a written document executed prior to the litigation beginning correct in which the  firm asked global and global agreed that there had to be separate representation in the lawsuit correct i don't know if it was i don't know if it was global agreeing to that you're in but there was a conflict that was waived whatever that p c correct and from time to time the morning hand firm was allowed to separately question witnesses about the concerns of its client at the time well there were there were additional factors involved you're out of their work because what i just said accurate what you said is accurate it is indeed but let me let me point out that there are only you you can tell me why it's not important i just try to nail down the facts no i understand you're correct about that you're in but also in this circumstance there were communications that were had between montgomery perdue and global with respect to discerning whether or not there was a rico claim for example a very significant issue in the case and individualize communications between mr goslar montgomery purdue and frank stuart of global about a whole array of issues claims like i just talked about rico other kinds of involvements in the handling of the case and ultimately entered joint defense agreement there was a joint what was the purpose of them well it was  it was an undertaking i would you have it why would you have a joint defense agreement if they were just all in this just together well because these lawyers downs it's sound when you ask for a joint defensed agreement it means that a client is represented  misperception that a conflict of what difference does that make well if it goes to the question of whether the clients belief about whether or not there was an attorney client relationship was objective only reasonable and let me point out as well with respect to the joint defense agreement it was over it was overtaken by circumstances in the case you have the joint defense agreement you then have the representation of global in the stabber case you have the representation of global's employe upon which mr stewart could believe that there was an attorney client relationship with montgomery produced he just isn't out by or the defense agreement was signed i believe he was dismissed out after after the joint if he was never served right i think that's correct yes the point the point i'm getting at is these issues are intensely factual in nature and i might point out under washington law whether or not you have a written agreement whether you have a fear ie a relationship or any of those issues is not conclusive as to the existence of the attorney client relationship mcglothin says that bourne vs cody says that and dietz says that so that the fact that there are these written agreements that we're talking about they are fact points they're certainly fact points that montgomery produced gets to raise in defense of the claims brought against them but they are not conclusive under washington law and you have to look to the totality of the circumstances in the case as to whether or not it's objective only reasonable mr stewart to believe that there was an attorney client relationship he's getting individualized legal advice about does his client company have a rico claim he's working closely in the trial of the case with mr gosper and there's no global reasonably be perceived as having a lawyer relationship in this case with montgomery purdue when it has an explicit point of the born case bone versus cody is that the existence of a written agreement a written gauge meant agreement is not conclusive as to the objective reasonable ness of the the perceived client's belief than an attorney client relationship exists so the fact that we have this this attorney client engagement letter is between montgomery purdue and and global with respect to stab or with respect to paris skia it didn't have a an engagement letter i m add with with them and i cite in the evi a case that is not none of those are conclusive there's there are fact points but they're not conclusive in terms of this relationship and ultimately what the court i think has to look to hear is all of of the circumstances that we've outlined in the brief that suggest that mr mr stewart's belief was reasonably reasonably achieved to believe that an attorney client relationship existed on top of that you have this whole notion of the the concept of peripheral duty that we've talked about in terms of the g t s case and we've cited treatise authority on this point there's no question in this case but that you have there is an attorney client relationship here between global and montgomery produce there representing global in the stabber case they're representing global's employ in the case so these are not an alien relationship they have an attorney client relationship do they get to stand idly by whistling past the graveyard as i've said when they see obvious malpractise being committed by counsel in the case under their theory of the case know that they can basically blithely move along and not have to worry about that one little bit notwithstanding the obvious malpractise of failing to timely provide an expert witness on damages a really critical aspect of the case this is a side i mean your time is running out but yes this is a side matter i'm just kind of curious the group will ever bring any litigation it did in that case ok let me let me conclude by pointing out with respect to one other intensely factual issue and that is the limitation of representation on our p c one point to see you have the taylor versus bell case that holds under washington law that this concept of limiting or unbundling services by a lawyer is something that cannot be done easily it's something that is an intensely factual point in that case the court found that there was a question of fact as to whether or not it was a perp for seattle council to have attempted to unbundle its responsibilities for understanding and complying with idaho law it's no different here you have related cases you have montgomery producer representing an excuse me a global employee and via representing global itself in the stabber case these related cases and it's attempting through the device of these engagement letters and so forth to limit the scope of its responsibilities to to global it doesn't get to do that without carefully and clearly delineating the lines the other factual point you have in support of the proposition that there's a question of fact on r p c one point two c as well as the existence of the attorney client relationship is expert testimony in this case that indicates that this was a circumstance that was reasonable for mr stewart to have believed in an attorney client relationship existed and that montgomery purdue in appropriately failed to limit its services as is required by r p c one point two it didn't get the informed consent of global it didn't delineate to global the precise nature of the multiple relationships it had with it and from that failure to delineate the responsibilities it was easy for a lay client to believe that an attorney client relationship existed and therefore the district court prematurely dismissed the malpracti claim as well as the breach of fiduciary duty claim thank you thank you mr talmage to now for the  lawyers that is taught about in continuing legal education classes all the time and what happened here is that the lawyers did the right things to make sure that nightmare didn't apply the nightmare is a lawyer is involved in the matter and then when it's over someone the lawyer did not represent says oh i thought you were my lawyer i subjectively believed you were my lawyer and you don't want that to end up in a situation where the lawyer says one thing and the client says another and the way the c l these tell you to avoid that is to document what you're doing document who you represent and that's exactly what had represented a global before the case correct i don't believe they represented global before i believe they had represented all well interesting employees whatever and they represented global after the case in an  some in a related case yes they did not represent global before but then another case was filed and in that case montgomery purdue undertook the representation of global and when the failure to disclose timely a damage expert occurred they stepped in to try to repair the damage for lack of a better description correct i wouldn't put it that way but he joined in the effort to try to repair the damage well what happened was and whether there was malpractise in connection with that report is is disputed and hasn't been decided but it's alleged and so we'll take it you know it's true at this stage i didn't describe it at that at the point in time were a timely report was not filed thereafter lawyers from the montgomery firm participated in trying to repair the damage no i wouldn't put it that way i would you but how would you put it that this came up at a trial at which both law firms were participating on behalf of different clients and so the by our firm was participating on behalf of global and as the questioning earlier indicated the bauer firm was responsible for that report montgomery producer mr goslar is participating in trial for a different client for marine management but with a joint defense agreement so working together and when the judge said i'm not going to admit you have a choice basically she said give a continuance and we have to resume a long time down the road or you can't use this witness for that purpose a decision had to be made and the bauer firm the lawyers for global sat down with mr stewart and global and made the decision to not offer the testimony m was aware of the discussion at trial and discussing it because his client the codefendant also had an interest in that i hope that describes it clearly the point is that it came up in the course of a trial both firms are the representing different clients but everyone was aware at the end of the day if there was an adverse verdict who would have to pay if there wasn't indemnification agreement and indemnify yes and as i was saying the way that lawyers can avoid these problems because fortunately a subjective belief by a person that someone is their lawyer isn't enough here it certainly can be found there was no subjective belief but fortunately that's not enough it has to be objective really reasonable and that's where you document what's happening and some of this is come out already in the questioning but if you look at it each step of the way it's documented at the outset it's the by our firm that says we have a potential conflict and so we want a separate counsel for marine management that's the  conclusion it's the right thing to do if you think there's a potential conflict and there was a potential conflict it doesn't really matter to the analysis here but there was because the by our firm had been involved in giving advice to global about this underlying charter and if you advice had not been taken global wanted to terminate because of unsafe driving conditions power said you can't do it they want to terminate because of no insurance  wer said you can't do it they came up with another reason to terminate there was an issue of whether attorney client privilege would be waived and if it were waived the by our firm would have to give testimony that was very damaging to global and marine management could very well to distance itself from that likewise marine management wanted separate counsel that's in the record also says nothing wrong with the power firm saying we think a separate firm should be representing marine management that's what happens you get a written waiver of conflict they both sign it says bowers representing global and montgomery perdue is representing marine you have a joint defense agreement it sets out who is representing who and it says are going to cooperate it's a classic joint defense agreement as judge pius pointed out it's not you don't need that if both lawyers are playing the same client you need that if you've got co defendants with different lawyers there's a memo from the by our firm to mr stewart explaining how the joint defense agreement works and what we privilege and what will not be privileged when global i'm sorry when montgomery perdue undertook to represent an employee of gullible the person who has never served it did a retention letter and it said very clearly exactly what it should say it how do you view the state of washington as to how her mr or not permissive it is in living considering the written agreements attorney client relationship with no written agreement again it has to be subjective belief that the lawyers acting as a lawyer and it has to be objectionably reasonable you can't come in after why why here is it  b because the documents are clear and as the judge really pointed out there's absolutely nothing that can be pointed to reasonably to suggest that this could have been the belief the and as i said th formal documents all the way through the retainer agreements and if you look at the retainer agreement i was about to mention when montgomery producer began to represent global in the stafford case a separate case it says scope of service we shall act as counsel for global explore l l c global enterprises l l c and yourself mistress to stuart in defending the claims by richard stabber and global marine logistics  c against you in the complaint filed in king county superior court under case number and the number what could be more clear than that and that is not a limited scope engagement can you just clarify one thing on that  richard stabber versus global case yes that was in king county superior court and that was pending about the same time as the every case was with was pending against global and m m s i yes  there were sort of similar tracks the stafford case was filed four five months later than the every case but they were moving along yes yes they're they're both pending the same and montgomery they would also discuss how the two cases were linked very very little if you look at the documents that are cited in the long footnote in the other side's brief there are only two or three emails that before the settlement negotiations after judgment which are are relevant under under washington law there are two or three e mails that reference both and so for example i think it's at one forty four of the excerpt of record there's an e mail the other side suggests is mr goss we're talking about both cases together if you look at that the rail line is richard stabber case his case and it says we the every case and on behalf of global in the richard stabber case so even these informal communications he's careful to delineate any evidence that because he had this attorney client relationship with global that when he was conversing with stuart gosling was conversing with store is there any evidence along the way that you were either asked for advice directly from together well yeah i'm talking about it sort of you know when there's a look there's an attorney client relationship between my grammar stuart and global and yes in the st stafford case yes i mean you can see a client talking to his lawyers well you know the lawyer is also involved in this other case and just you know asking questions is there any evidence of that no no no nothing no nothing outside about this would think about this no nothing i want that we're going with this and and nothing outside the joint defense context which you would expect where there were you know the both co defendants are working together and that's a key point that there was no there was no confusion here no confusion in the record or otherwise about who represented who the first time mr stewart or anybody ever suggested that montgomery produced that mr stewart thought that montgomery producer was representing global contemporary dot com the documents they show conclusively that global knew that it that it's lawyer was by our morning hand and it knew there was separate representation even in the appeal in the underlying case after everything had happened and after mr stewart knew everything he knows today absolutely everything he knows today about what his subjective belief was what was said during the trial and everything else lame paul filed an affidavit in the appellate court saying that global and marine management were separately represented that's what everyone understood and in fact one document that's mentioned in our brief but perhaps should be emphasized more than we did it's that s t r fifty one this again is after trial and it's an email from mr stewart to lane paul asking about the appeal what's going to happen to appeal lane powell was brought in for the appeal and so if he thought that global was his lawyer he would have known then he's asking questions what does mr stewart ask this is it fifty one have you sorted out of the role in the appeal goslar being from montgomery produce is separate representation needed for marine management services he knows it's been separate to that power point if not i would certainly like to merge his appeal goslar peel with ours global's and what does blame pahl say in response it says  the same lawyer could represent both because there is no conflict however the only qualification is that in the past the global has not insisted on full and control controlling the defense and marine maritime management may stand on precedent and insist its council be involved and so right there after everything that's happened you've got both mr stewart and his lawyers saying marine may it's lawyer to be involved and you have mr stewart saying can we merge his appeal marines with mine your honors we respectfully submit here that this is the case that those continue think legal education sessions talk about where you document what happens and you document who is representing who so that you don't end up in a in a in a situation where someone can credibly say i thought you were my lawyer i see my time is up if i could just make you're actually over your time i'm sorry then a letter or any questions we would respectfully request that the judgment be affirmed thank you counsel  think your honor briefly on rebuttal the question of fact as to the existence of attorney client relationship under washington law dietz question of fact as to limitation of representation under taylor both significant in response to your question judge girl totality of circumstances the mclaughlin case makes it clear that the existence of an engagement agreement is not dispositive on the issue of attorney client relationship under washington law mr talmage would be your position that this issue of whether there's a tourney client relationship with montgomery produced could go to to a jury under proper jury instructions saying there would have to be both a subjective intent and it would have to be reasonable absolutely and that's what that's what washington law requires your honor and then response to your question judge paez i think mr simpson misspoke goslar gave specific advice during the representation by montgomery perdue of m m s i in evian to global the same time it was representing global with respect to sta regarding rico claims the global might have in that litigation in the litigation he was giving specific advice was even advice to both his client to me to him and jointly only to mr stewart only to mr stewar about the rico issue the existence of a rico claim that's indicative of how this issue is is was handled here for counsel to stand up to what what point in the litigation did he make that that well it was it was during the course of the  litigation and it was i believe it was after the filing of the stabber case in which in fact montgomery produce had global as a client so for him to stand up and say this is a circumstance where someone you know is you know a situation where someone the lawyer did not represent is involved global was represented by montgomery producer we know that and to say well we really should delineate these circumstances in a in a more appropriate way indeed that's what informed consent is all about mr stewart did not have conformed consent at no point do you have a delineation of these multiple representations by montgomery produced global as to what the responsibilities and the actual relationships were and in fact on the ground in the litigation you had mr goslar assuming more and more and more of a direct responsibility for global interests and so i don't mean to interrupt but we are taking a couple minutes over here and i distinguished seattle counsel here thanks me a little homesick for law practice thank you kevvy let's say on the record that global enterprises versus blankenship fourteen three five eight four one and three five ten fifteen three five zero two six shall be submitted they will turn to the