this case into reverse district courts denial of the plaintiff's motion to disqualify defendant's counsel michael you can order and his firm holland and knight this motion  disqualification is based on violations of florida ethical rules including a breach of the attorney client privilege conflict of interest rules three mr buchanan warner who was working through blackstone outside general counsel law firm taylor pena and associates advised blackstone then owner of the at the nine one seven application which ultimately it let me pick you up because i think we're quite familiar with that here tomorrow night bruce let me ask you do you just spew that there can be a waiver under certain circumstances absolutely there is actual knowledge combined with any intention to use the conflict later on in litigation as a sword rather then the shield that the ok so let me start that so actual not actual knowledge of what actual knowledge of the conflict the florida ethical rules place for affirmatively the duty on the lawyer to advise the client to disclose the conflict and in fact it is even the disclosure of a potential conflict that is required under the floor it ethical rules in this case mr b you can order immediately upon being approached by  of the defendant in this case when he was acknowledged that night immediately recognized the concept that even if we consider it to be up potential conflict which of course we deny we believe it's an actual conflict he brought that to mr starr who was the partner who was in charge of the case and also on the litigation and they concluded that i want to focus on your side of the equation that's where the waiver step in the question is whether or not you all were findings that your client at least had a piece of paper at the time and so he had knowledge of something correct at which time you refer two thousand and three or two thousand and five well i'd rather ask actual knowledge crude in early two thousand and five the motion to disqualify was filed approximately six or eight days after that e mail was discovered immediately upon discovery of the actual why did he receive the e mail even though he had late belated discovery of rediscovery of the e mail he was he received the e mail and sometime earlier correct he as a member of blackstone as he owner of blackstone was copied on certain e mails the work that was performed was with janet sensu then director of marketing and sales for blacks contrary to the  award organization mr arias the sole owner of exigent to whom which acquired substantially all the assets blackstone has found by the district court was copied on certain e mails that mr black was only after the service crashed in two thousand and five that all of this was restored to their mailboxes and he kept and upon these this e mail which brought back a rush of knowledge he then went to his disclose to bring the conflict to life but the rules require the lawyer to be that person now mr putin corner had actual knowledge of the situation when he was engaged by the trial but let  leaving that aside the question here is whether or not there was any of the occasion by your quote i reckon for and he did come forward when he had actual knowledge of the where the client is the one that the ethical rules and the laws protect not the lawyer the lawyer should have brought this to light to attention at the moment that this became an issue had that occurred then all of this situation could have been readily avoided mr ariz would have been placed on notice and you could have made a determination at that time  is very instructive on this issue what a fraction of the actual knowledge through the officer at the time of they received the e mail i'm sorry i'm not sure and change question when the company receives e mail he receives it as an officer of the corporation that knowledge which contained in that e mail transferred to the corporation because actual knowledge of the corporat even if that was the case i think year or more later when that when a lawyer appears in the action there may be an instance where that information has been corporation can be held to know what is or should be in its own files concerning that property this is not constructed knowledge as argued in the brief for the show or attachment so if the corporation has actual knowledge when they received the e mail that was sent to the operation of actual knowledge in this particular case came up in two thousand and one when the e mail was received you are even if that is the case and even assuming the standard supplied by the defendant in this case is correct which we we also use the standard that must be met includes an intention to relinquish or waive that right that is not the case here that did not happen in this case that actual knowledge must also be coupled and combined with an intention to  referring to everything age nineteen that waiver requires the existence at the time of waiver the right action or constructive knowledge there and three and intention to relinquish such right privilege it to your benefit there was never an intention to relinquish that that right or benefit and in response to judge approached that exception to the waiver even based on actual work instructed knowledge must include some element  rea there must be coupled with that actual knowledge and intention on the client's part to use that as a sword rather than a shield and to literally lie and wait until you lose the case only to use it to your advantage later on the case there is no evidence that that occurred in fact the district court's opinion here rests solely on constructive knowledge so we have a couple things going on here first of all even assuming that there was actual not which even assuming that we had attorney client relationship scene and such there was no intention to relinquish that right it was never disclosed to the client there was no see that the lawyer never saw a waiver or consent and in fact it was never intentionally used as a sword rather than a shield and therefore the district court's opinion is clearly erroneous and i would like to comment before my time is up here on c n n your jury born with more time to it all right i appreciate that the standard of review here intentionally relinquished that right the second stepbrothers british rule you rule sixty b should motion well that's the second step which is a sixty motion to vacate the judgment which  of the attorney client privilege which also is irrefutably presumed once you find the conflict then it would be gross injustice not to vacate the summary judgment that assuming you're correct on the waiver issue what difference does that make in the outcome of the case that would warrant a sixty b i well information that would have made a significant difference are we i believe yes we are your honour's mr buchanan warner prepared a thirteen page single spaced memorandum marked privileged confidential attorney work product in two thousand three where he analyzed perceived weaknesses in the application analyzed the potential interference with another patent application he analyzed potential infringement by a direct infringer as opposed to a contributory infringer and then he used that very analysis that same analysis that you rendered for mr ari's and blackstone against actually in the litigation against it and it was all based on those very argument that the court found in their favor exigent is entitled to have their dispute heard and decided without conflict and that is the gross injustice but what good have you ever been removed that that i mean the fact if you got to read to a do over on this case how do you i mean the bell i mean everything is a matter of record you can you not but you not going to preclude them from using that theory based on what's happened so hop what does it matter do you have and do over and it comes up the same way in the issues raised in the same what is it what kind of feeling of you made that it affected the outcome if you're aware that that would be trained  earlier the summary judgment in this case was entered as defended concedes in their brief essentially by default now following that order on summary judgment i in another case participated in many rounds of to analyze the situation that much testimony which we really don't believe i'm sorry i'm aware of i'm merely trying to respond to explain why i don't believe that the court would be correct in deciding that it's ok the conflict three reasons first the trial judge was correct in determining that even if there was a conflict and conflict waived secondly they had the appellant cannot meet the very high standards of sixty b because there t this is of course how the district court result the case the allegedly conflict was known from the beginning of the lawsuit in this case they waited until they lost the lawsuit before they brought the conflict to the let me let me tell you what what's bothering me a little bit here and that is and i don't want to make the other side's argument for them but let's assume actual content there was actual knowledge that he saw the email as judged by our suggested anybody in the corporation and why he had not it seems that he had knowledge that this person had sent an e mail and was working for the company it seems to me actual knowledge is a little different if you talk about the actual knowledge that there was a conflict for example if hypothetically this person's name was susan smith or john smith so clearly everybody at the get go knew somebody that named john smith was intimately involved at some stage of this proceeding but that doesn't mean that just because there is a john smith as one of four hundred lawyers on the other sarai that one should one who has knowledge that somebody named john smith one for  represented them but not at the knowledge that there is a conflict if you understand what my concern is that i think those questions of actual knowledge are on two different levels and i'm concerned where you get why you reach the second level here even if you had actual knowledge of the emails and of course we're fortunate in this case because the lord's name was not john smith it was michael you can corner which is a fairly unusual name clearly he had actual knowledge that this could soon we believe his story that a lawyer named michael bute you can corner was hired growing him and was giving him advice then we also have undisputed evers throughout the case that michael you could never was involved in the litigation of the exigent case and mr arius was very intimately involved in the litigation e mail and he sees michael you can horner's name now why would michael you can curse name him any more impact on me at that point in time than it would have been at the beginning because i think what the district court was saying here was set mr areas  said was look mr areas you can't have it both ways you can't say that mr buchanan border provided you this advice was given all of these confidential documents and that documents you say you didn't even cough have a copy of and then turn around and say that you all that that's true but in the context of the district court saying look mr parrish you can't have it both ways you can't say that there is this substantial conflict and then turn around and represent to the court that you forgot but if there was saying mr mr arish you can't have it both ways well how can a corporation waive that right can it be waived implicitly when it has to actually say broken heart and you c attention of the living in those cases the liggett had knowledge and sat on its rights and in all of those cases the court whole but the fact that you sat on your rights throughout the course of the bill that it gave him is a waiver of your right directly you must raise the conflict to reasonable promptness use discover the conflict if you don't the conflict display cases are absolutely clear about that and then generally they don't want to make the second point which is which is also a point to exist in this case which is and the reason we don't want parties to do that is because they can use conflicts for tactical purposes now let me ask you suggesting that in every case or at least we're talking about florida here sort of life that if a for me is going against another one it's their obligation and again we're cute in knowledge of one officer of the company or something the company that every corporation on an ongoing basis every time the other side gets a new lawyer they are supposed to do their own independent conflict chaps not with regard to anything about their representation but every person they should check the list of every lawyer on the other side they should check all of their documents to see if anybody in the company had ever had any dealings with that lawyer and they should do that on an ongoing basis because new lawyers come in and out and software those cases say that once you have actual knowledge then you have to bring the case now this is not a case where we're talking about corporate underling somewhere having this now or just this actual knowledge by the president or the principal of the corporation mr areas who was also the principal that was involved in the litigation so we don't have to make this connection we don't have to impose a duty to dig down deep in the record and find out the don't have that tougher case here we've got a very easy case when the actual knowledge went directly to the key principle in the corporate the key principle was involved litigating the corporation sitting on the other litigating the case sitting on the other side from the buchanan former throughout the course of the delegation this is not a tough case on wave now the second element that the courts all look at is we don't want these sorts of conflict waiver arguments to be made tactically  disturbs me about that is it seems to me that's in the control of the other side we could easily pick the other side can easily avoid tactical use by his opponent by the lawyer disclos g i mean the lawyer in the first instance you don't dispute it's the lawyers obligation to disclose absolutely if you believe there's a parent well yes if he does he or she does what they're supposed to get under the ethical rules then the other side can't even  matter how much it wants to have some tactical advantage by sitting around and wait you control that absolutely agreed your honor but all the cases we've cited in our brief the cases that i persuaded to your honor those are all cases where the lawyer didn't do that those are cases where the lawyer didn't disclose the conflict and still the court found a waiver because the parties on the other side knew about the conflict and didn't bring it to the attention of the board and in all those cases the court said that that of their conflict argument and chose not to raise it until they needed to raise it when they lost the case on i'm on summary judgment this is a perfect example of improper tactical use of conflict prefer the most interesting take a look at mr mr areas his second declaration which is in the record of a three thirty one thirty eight when he describes how he discovered this e mail keep in mind business the e mail sent to him back in two thousand and three keep in mind that this e mail should have been discovered during the course of the litigation because it was directly responsive to our discovered request and that doesn't jive his memory his memory suddenly his job after the case is over when he says is he made his email server crashed and he had to reconstruct his e mail database here but that what disturbs me about that is we're not that finders in the first instance and can you point to me and anything in the district court's opinion that suggests that she made these observations and do these conclusions based on credibility rather oh i think what she's saying mr harris you can't have it both ways i mean i think that is the message that the court is is sending but i think well i mean i just i think there's a little difference between the messages the court is sending and findings of credibility right there but absolutely true but i think what you see when you look at the i'm tired opinion which is which is short i mean i think it's clear that the district court didn't believe the story and when you look at the the record it's absolutely clear why and the court made it two observations one you can't have it both ways or try to set up times and secondly she took it she also pointed out that this was information that was relevant to the discovery requests should have been disclosed should have been produced in discovery anyway so if even if we believe you mr arius that you somehow forgot back in two thousand and four you should have run across this e mail during the course of the litigation which you never bothered to produce if you even feebly attempted to respond to discover you would have run across an e mail and do it again that will jog your memory and at that point in time instead you have this and the district court didn't say this but this is my argument you look at his desperation when you see how eat alleges that he uncovered this on may tenth or may fifth after he loses the case it's an absolutely incredible story says basically that he's in the process of sorting out fifty thousand e mails and suddenly  the mark six in march seventh two thousand and three were transmitted directly to mysterious one in one he was c c and the other he was the director he was director said the other point that i'd like to make just very briefly is that even if the court were to determine there was a conflict even if the court would determine this and that way this is a no harm no foul situation and the rule sixty b it's a very extraordinary remedy but i think it's a it's a question that this court easily answered in the first instance because it's it's just by looking at the record below to see that summary judgment here was granted as a matter of law not based on any confiden material based entirely on my public record all that this was an examination of the bag which is an obvious public record against the trials blackstone's original product wasn't even an issue in the case so for  that it's not enough to show a conflict you have to show directly how that conflict impacted on the ultimate result that's the piece of the post was missing here and for that reason even if there were work on which we do not believe it was the  to six six and eight one seven three she was the director of business development and she was not an officer of the company at that time and not at this time either all of the cases that appellee says it cited in its brief we distinguish in hours those all deal with waivers of rights other than attorney client privilege and conflicts attorney client privilege and conflicts are dealt with  specially because it is such a high privilege in fact holland tonight treatise on this subject states that and i quote the client may waive the conflicts of florida rule for dash one point seven by consenting after consultation with the lawyer the consultation must include explanations of the implications of the common representation and you vantages and risks involved thus a client's awareness of a conflict and subsequent inaction do not constitute consent and that's florida insurance guaranty association versus kerry candidate seven forty nine eps up to fifty five so this the florida ninety nine in determinations are for the trial were to make in the first instance that answers your question judgment which is what effect would this have on the judgment in the summary judgment order that was entered in the merits of the case there should be an opportunity to l gate those merits we must be mindful that the district court here found constructive now that was the finding not actually yet the court also found that a waiver ensued that is clearly erroneous it's contrary to law it should be noted that these documents big cues us of failing to produce in the litigation were not produced by them either we gave them original materials they never gave them back that appears in the end that's a