a court i'm jeff sobel and i represent an individual company named medical and chiropractic clinic and here today the issue before the corps is unique not one that any lawyer has been able to this case is about the conduct of the lawyer representing the class member and whether they of fiduciary duty of so in this case the lawyer did not make an appearance in the sent to action correct they did not fi mediation and mr oppenheim and she had dinner the night before discussed the mediation or serve as a connection of the mediation any evidence he met what your client in anything other than the mediation no was strictly related to me why she who is he representing the mediation he represented his client medical incur practically and also the class all right but it wasn't specific rights does your client have with respect to class at that it is a putative member that at the time when you're concerned about the filing of this nd class action at the time of the actions of the defendants there is no competing class all of the as it was in a competing class why are we here because the defendant's counsel for my client used information obtained from the client and from working on the case you've got here is how they were t treated as a class rep in the senate you action are concerns how they were treated by their lawyer and the lawyers for fiduciary duty of loyalty and confidentiality to their client medical and chiropractic  but there's no connection between any alleged breach of the british or a duty and any damage to their individual claim as they could opt out and pursue their claims against buccaneers if they wanted to they could pursue their individual claim they may very well have lost their right to an incentive award after having been the clear that's not as an individual plaintiff that's as a classroom yes a class settlement right so that's what i'm getting at is really all your arguments pulled out of the us our client lost some status as a class representative and the senate q action because of the conduct of these lawyers that a fair boiled down summary that factually yes legally we think the issue is different your honor all right  what information was shared that would have been a breach that the buccaneers lawyer was a subtle or there was information about the lawyer there was information about the mediator there was information about be specific don't just categorize be specific what information was shared by the buccaneers lawyer was closer which was an opinion not just of  mediator judge when anderson from the northern district of illinois there were draft terms sheets there were a slew of them with various numbers and proposals in them that were copied from mr oppenheim's anderson wan the files before he left the law firm and given to the his new law firm so there were those draft term sheets and and all of that information related to the mediation privileged information from florida does does that information belong to him and see i mean is that is that the confidential information of and see if it's not m n c's corporate confidential information it's mediation privilege information for a quote before a class has been certified only the named plaintiffs are clients of the plaintiff's law firm at this stage there's a say there's a fiduciary duty to the individual named plaintiffs as opposed to the the attorney client relationship and the florida rules of professional conduct are also evidence of it is there any daylight difference between the duty of a to a class member and the duty of care to a class representative if they become inconsistent the duty  trip just the duties to the class wrapper those of an attorney client relationship and the attorney client relationship does not exist with the putative class members so the fiduciary duty arises from the attorney client relationship which is governed by the florida rules of professional responsibility and case law finding fiduciary duties in attorney client relationship because the preamble to the florida rolls say that these rules quote are not designed to be a basis for civil liability close and we we have not relied on them as the sole basis or the reason deandra for the fiduciary duty they are an example of the standard of care there are cases that cite repeatedly that an attorney agree with you except that there's a lot of cases out there across the circuits that say well that may be true with regard to your standard case but class actions are different  they're unique and they are different and where we differ is we don't think it needs to be either or it's certainly possible for the class to trump any individual duties owed to the class named class so should we be concerned about your client filing a separate fiduciary breach case against class council and the t action while that judge in the t t action is entertaining whether or not to prove settlement or being asked to reconsider whether or not settlement should be approved seems like that is just tinkering with the process outside the class action all these claims that you're making here could have been presented to judge purcell who was supervising the t t action and this looks like somewhat of a collateral attack side door attack coming in and trying to undermine the t t action well if if i'm right and we are right that there is a fiduciary duty of loyalty owed to the client the name class rap then my client absolutely has the right to bring a separate independent action and maybe get the history when we look at the history your honor the t t a action gets filed in state court and my client becomes aware of it through a mistake in some emails but it is then dropped it's dropped and my client starts pushing for it if you're not you're not going to be arguing this case the fairness of the t t action are you ok because that has nothing to do with your case as what you would say correct but to they might say differently but you have to say separate worlds but my point your honor is that at the time that this started to be pursued his fiduciary duty claimed the was no existing federal court t t action because council had dropped the state court al counsel do you work in this area much i am not a t c p a lawyer are you a class lawyer i do handle some class  know everybody expects that's dropped it's going to be refiled later that's that's not the issue is it well it's always possible debris filed i have had plenty of cases both myself defending and as a plaintiff where we did not refile actions so we can only go on what's actually been done but regardless it shouldn't stop my client the name class rap from pursuing their fiduciary duty claims should the court hold that there is such a duty so you're asking us to create some new  the class separate and apart from the class as a whole we'd have to create this new law so i think these i c m past my time if i can answer the issue is simply that this unique fact pattern hasn't come up and i don't think it really requires creating new laws it requires taking two pieces of existing law and putting them together piece number one is that in an attorney client relationship there's a fiduciary duty piece number two is that you know i agree with you there are  i guess i'm still stuck on this whole concern about this looking not so much like an individual fiduciary breach as much as a missile and at who your other client thought stole a class action from him and c hasn't put any money into this case happening now your your other client has funded the entire case yet and i don't think there's any champ three issues here like i think i'm going to hear from your opponent but that's a significant factor as to whose point leavers and why they're getting polled aren't they but that's not relevant to whether fiduciary duty of loyalty two o'clock but it's i think it may be relevant to whether or not we should recognize a claim like this during the pendency of a separate class action where i think really what's going on here is you're trying to undermine ten o'clock i've boarded up time from judge wilson thank you thank you thank you of academic discussion these days about class lawyers yes i'm very well aware of it because i am a class lawyer and so you you read that don't you i do it every day and this case is just going to fuel more of that and it potentially could i think if we prevail on appeal it wouldn't necessarily fuel more i thought that what we're going to write the facts up regardless of who wins or loses this appeal and it's going to be pretty clear that there's a lot of nonsense going on in the name of all twenty three these days yes i'm just making sure you know i recognize that our appreciate your honor and i share your concerns and i'm to start cannot can i hate to just you know before you start your presentation i've got what i think is like a ground zero kind of question that is genuinely puzzled me about this case what lot of flies here and this picks up on a thread that judge wilson asked your adversary i take it the position is this is a florida state law because of action informed not controlled but informed by ethical  whatever but florida law says you know a breach producer due to claim requires the existence of a fiduciary duty and then a breach in some injury so isn't he right that there is fiduciary duty between a lawyer and his or her client correct if at that point your response is yes but class actions are different and so so so just so you know where i'm going and then the source of my confusion i masquerade as a federal court's professor on the side and i'm thinking about theory and gas perini and shady grove and whether or not this is really controlled by florida state law or really controlled by rule twenty three and sort of haunted by the applicable law question we were just discussing mr bloody and the answer is a little bit subtle but it's very straightforward and it is the because of actually the set under florida law but the fiduciary duty standard in this particular situation is set by federal class action law where does that come from so so shady grove is different right because shit in this is great like we can actually not surprising you difficult in this case because florida itself has the same standard if you look at the door no case you will see the exact same standard florida itself says that in the situation where a class lawyer puts the interests of the name class so we have harmony between the florida rule and the federal rule twenty three case law that we look at so the very thorny question of exactly whether or not the cause of action is purely state of days and if it is yes which i do think it is whether or not rule twenty three then still informs the particular for use your duty in this case really doesn't rise or you don't need to reach it because we have harmony between those two laws ok but what it does  is something about the facts of this case that are really important and that is that when mr oppenheimer was working for the andersen and once a firm and representing them and see he did so only in the context of class settlement all he did was work in the area of doing the mediation and he did that strictly on the basis of writing the mediation papers or editing them with respect to class settlement issues and at the same time m and c and self agreed the representation was limited to class settlement issues so i do believe kincaid covers this case and i duty does not exist between lawyer and class rep if it is sure it does not exist so long as that relationship is strictly lawyer class rep lawyer working in the class action context got and that is as a result case where m and c agreed as routinely class reps do because class counsel you know present this to them this way because class counsel needs a class rep that's going to put the interests of the class st because we can see in a case like kincaid and his progeny if the class reps don't put the class st you've got a mess so i think in this case we have three sources rule twenty three and cases like and carried in radcliffe out of the th circuit we also have the florida law and we also have the very retainer agreement issue in this case so a lot of harmony here and there's really nothing that saying anything otherwise and there's nothing in the record to show that i don't see engaged in any kind of a personal attorney cli well it is sort of troubling troubling that he's representing the class and then moves on and files a competing class action on behalf of othe well the record actually shows that i did not happen mr oppenheim did move firms you have to understand these two firms working together and literally dozens of cases at the time it wasn't a particularly surprising thing that he moved f s there's nothing in this record that shows that any of the information was used to file this case or was even the reason why this case was filed in fact mr mr addison one of the co counsel for m and c admitted that the it please the court my name is barry bologna and i represent attorney david oppenheim a lot of the arguments have already been covered here but i did want to return to a couple of points one being the source of the law the judge honeywell in her decision referenced one case that i think helps to eliminate the question of source of law and that's that the as st a shepherd case india has versus shepherd the majority rejected or held that there was no federal question jurisdiction for malpractise action brought against an attorney and judge honeywell in the dissent or judge honeywell noted in her decision that the dissent there essentially ruled out that there could be a malpractise action individually stemming from a class action but on the source of law question the fact that the court got rid of the case on federal question grounds suggests that the source of the law at least as to the substance of fiduciary duty originates in the state and then you have  cases like kincaid also like guthrie versus evans a decision from this court that says rule twenty three sets the standards for a class action attorney and the duties that follow from that and you also build on top of that case law that makes it clear duties of loyalty flowed to the entire class not to any individuals and that point is the nd point i want to touch on and that is that the duties asserted in this case loyalty and confidentiality are mutually exclusive loyalty means putting your client above all others if we accept as kincaid in parker and numerous other cases hold that that duty of loyalty flows to the class there cannot also simultaneously be a duty to an when it was removed by the defendants to federal you're seeking injunctive relief that it would affect judge course ellie supervision of a rule twenty three dollars class in front of a separate judge and that court are injunction would only require the appointment of new counsel for that class exactly do you not see the problem with that not in light of the breach of fiduciary duty that that came i understand the court's position we we filed it separately the strate there have been arguments made in the case to to put the case together because they were the same issues the same exact issues judge honeywell but your client your well and its perfectly has its right but your client would consent before judge prescribe it that's why the cases worked before the same judge that correct so what's your response to my kind of geeky food court question about source of law i mean is it your position that forget about rule twenty three this is becomes a conflict between the class and the class rap now he says loyalty and confidentiality provide this insoluble conflict if they are an insoluble conflict than they are they're always in conflict i don't understand how there could be an insoluble conflict the only issue is whether there is ever an attempt by the class named class members to act adverse to the class itself so that there becomes a conflict between the class and class members for example the adore no case which they rely on becomes in fact the representative of the class this is an unacceptable situation because of the possible conflicts of interest involved the court went on to say quote court should not accept the view that the attorney for the plaintive is the dominant litigious and the plaintiff only a key to the courthouse door dispensable once entry has been affected that that's the problem with looking at it as either or and so the nd part of my answer is it's that these duties of loyalty fiduciary duties are owed by the attorney to their client the client the named class member but that they are subject to the duties of protecting the entire class you can't you can't represent your class rap and throw out the class that's going to violate rule twenty foot your corporate  wrap your class rap acknowledged that she understood oppenheimer's representing the class of mediation sure the class of class and not she never acknowledged her own expense and i would also add it was the interact that mr out and i also did help with discovery and other strategic issues in the case thank you kelso thank you very much and the court will be in recess until nine o'clock tomorrow morning a