tranny in a federal indian probate proceeding but subpoena was requested by an interested party and if you buy the judge in response to information it came to light at the probate hearings that raise questions about the mental actually a fundamental disagreement in this case i think which is present in the briefs our contention is that and i actually think there's no underlying dispute that absent anything to the contrary in interiors regulations these are federal deem appropriate that is comports with the state rules generally accepted rules of evidence that provides a baseline sort of for the proceedings they now think that parties know what they can come forward west but the second profession four j or the hearing the same manner could mean something that was in the nature of hearsay wouldn't technically be admissible under state law but maybe couldn't affidavits or other evidence not orderly ordinarily admissible without those last three words not ordinarily admissible or very significant in a written contract was so they were the generic rule is that we followed your generally accepted rules of evidence of the state in which the evidence is to the right right i would i would agree that that proof that provision is saying not ordinarily admissible under the state interpretation of its own regulations which are not which are purely at the discretion of the secretary and there is now all the statute requires is that the secretary approve it wheels of into pertaining to indian trust property there's no requirement for a hearing so definition of the regulations that murder some form or opinion of the office of the council or something you know something people could look up i understand that but do we do for  then says that they owe it to deciding official me in any case require evidence in addition to that offered by parties in interest without any any specification as to the law that applies now let me go to actually the at least brought up supersedes what is stated in the yes you are arguing that yes we are arguing that the that it's progressively more sort of more liberal and that there's the whole goal of these proceedings is for the secretary to be able to carry out her duty to determine what the have a right to offer but it is not the limit of what can be introduced and it makes more sense to look at it the other way around if you go and it's bad enough in my view that the that the the at least that when there's more separate subsections that you have to look at this the language of the first subsection it could've written this rule that says state will have evidence shall guide all proceedings subject to these particular exceptions but that's not how they will it they wrote four different sections subsections with separate language and separate standard in each one but then you have an entirely different section regarding production which makes no reference to the rules of evidence but let me let me say before it ran out of too much time i don't think it matters in the end i mean we do think that the ensures regulations don't mean to provide to limit that ability but even if you determine that state law applies certainly there is no reason to think that washington courts would not adopt the testamentary exception   i think if it whatever the washington court would hold the way that the washer of the washington statute pertaining to privilege is a complication of the washington state common law and is if that's how the court interprets it and there are number of common law exceptions i think you just have to determine whether if there would be a common law exception in washington state as a result of cross the country in virtually every other state that i'm aware of and federal law testament exceptions think this rule is generally accepted in in most jurisdictions and united states there is that exception right yes exactly and that's how and washington generally follows the majority rule when it applies the purpose it looks to the purpose of a privilege and it's probably accepted law applies to the privilege issue here or would be appropriate to certify that issue it is appropriate to start a fire and we've offered that as an option frankly we think it sufficiently straightforward there's really no let me be sure i understand the governor's position i have a little confused on this what you're saying is that federal law applies to the hearing but state law flies to the determination of privilege is that a fair statement or no indian probate proceedings to use the evidence of the law in which the testimony has been taken and interestingly the department of interior has flip flopped on this very issue and i think judge one of your points is that you were today arguing just the opposite side i recommend that you review that when i correct there is no generally accepted washington rule that applies here in the exception whether it does or does not apply and washington are you talking about the believe a husband and wife who later had there was a will contest involved between them and what the court held was instead of having testimony exception what they felt was that when two parties such as a be dealing with it it's the legislature and so ok but if if we need to find out what the law of washington is this is very narrow point perhaps we ought to certify it i disagree  says an attorney or counselor shall not without the consent of his or her client be examined as to any communication made by the client to him or her or his or her advice given there on in the the course  stuff i believe it is judges they could come up with a decision but i believe that probably more appropriately they would defer to the legislature let me tell you how i have little desire you tell me where i missed the boat doesn't have any power to certify questions to the washington's reports of the i think has to decide with the generally accepted at the time the cases before him there is no generally accepted rule in washington one way or the other and whether there is an exception or there is not an exception so for that reason he has to go to the fallback position which is apply federal common law and that will come in the recognizes the exception tell me where i've missed the boat well i think you've missed the boat that washington has not or in your practice that when you deal with an administrative agency there are times because of the nature of the very nature of the of the action is that you have people who are not lawyers and in this case for example under indian probates you can be represented by an arm lawyer a party in other words these are a typical administrative hearing and i've been in minnesota exactly why he requires that these have to be generally accepted rules except for remember privilege even even going to twenty right council sort of referred this court it even says that you can you know that the production documents for inspection company and copying are valid or  the rules that he has to apply which is a generally accepted rule of evidence so if there is no rule your premise is there is a rule but i'm just i'm positive if there is no rule that's generally accepted then he's got to look somewhere what the now one other component that i think is very important here is that the rules of professional conduct because typically and that's why this makes sense this is the uniform it will be put it this way it does not surprise taking the testimony secondly in every other probate in the in the united states it's their state actions and they are based on the evidence of that state and one of the other arguments from  arizona then you probate both of them both of the worlds determining that property and both of their laws of evidence apply it's n arguably in the one distinction about one point six is that you're not allowed to divulge unless by court order ok and in this case obviously jeffrey and sickle agreed but but but but actually and simple never having argued says under generally accepted rules of evidence of the state in which the evidence is taken i do know that steve is a capitalized term why is this important because in all drafting a capitalized term means something interesting  legal when looking for the definitional section and under forty three c f r four point two zero one the definition part there is no term for state i did look at other the of evidence applies one hundred out of a hundred in a state washington you know the mr edmunds request i think is the most pragmatic one and that is to affirm the district court in its analysis and remember this it was the thirty two b and i would caution the court if it rejects our argument that state law does not provide a limitation or that it not somehow narrow what can be introduced in a manner that would make it through difficult for the secretary to procedure for the advocates and another one for the judge normally there's like some trolling off wise to procedure that the parties follow and the judge follows it so for that