was some sort of screw up but that exactly failed to tell rocio now i'm representing my father to so you have to do away with me is a duty of loyalty what he has to give and also zachary took part in the deal so for the purposes of the deal itself one could debate whether there was a clear cut agreement between rocio and zachary we contend we win that debate but we also contend that we don't have to because the breaches of the privilege that were the most egregious in this case were not going sac or he was on the stand during the trial talking about what happened in the west belt deal but when he was talking about his very first meeting with ro o before west was the lead in anybody's op where they were going to go down to florida court and they were going to try to wrest back money that is stolen away from rocio he was trying to get it back civilly zachary was his lawyer the very opening the trial after i had reserved a standing objection to the waiver the privilege to the privilege of being rich zachary started talking about how rochelle walked into his office no westville in sight no conflict inside and he told me how rich he was he told me how many thanks he had that he was not a breach of attorney client privilege is that that's that's not asking for advice it's giving your honor i believe it is in that context because it's giving it's giving background to your lawyer so you about how rich he was and felt like that well there were there were some later references to the richness but we contend that those came from zachary because that was the one who heard all of that stuff but if you're a lawyer involved in a case like this are you going to do a background study on on the opponent or are you going to look into what his resources are who he is where his money is do we need to chase after him to make sure he doesn't send his money elsewhere i mean isn't aren't those factual matters ones that very clearly are going to be looked into whether zachary has anything to do with the case or not yes they are and just like most facts that a client gives you other than that moment with your client and you see in your office i do some criminal work say yeah i didn't file my taxes other than that type of thing most of what a client tells the lawyer could be found another way but in this case it was understood that it came from communications from rocio and obviously whether half an hour about our families and about our backgrounds and you know he has a house here i have a house there whatever right i mean none of that falls within the ambit of an attorney client proof communication it does your honor if the client comes to your office to give you the background that he thinks you need in order to be able to represent him and it minutely there is a fine line if i come into your office your honor and you're the lawyer and i said just came from my son's soccer game he scored two goals that has no bearing but the details that mr rocio gave mr he gave zachary over the course of those first meetings his background details by the way you don't give out like the fact that his mother had a super trust fund that was being administered in philadelphia like the fact that he had been all these different businesses all in his background but to judge to see most point  whatever material or critical information that you're alluding to that occurred in this opening part of the relationship if you will that came out in mr rosales testimony came out in documents i'm having a difficult time understanding what exactly the nature of the violation is and that's even before we get to was spelt and  mortgage issue are there let me let me just pass by saying that the first person who spoke the words were the first witness at the trial who gave all that background at that exactly and he said it was because you come to the office now that i the record mr rocio takes a stand and the mcelroy firm gets up and says didn't you say this is do this if they have here they were but hadn't those facts then become known to all the world i mean should they ignore them they were in fact judge wilson found that that if this was such an egregious decision that such an egregious breach of the privilege that she herself sealed the transcript of the proceeding and ordered nobody to mention it well  we go into the room or now both sides seem to assume that you know that this matter is privileged but this is testimony right before a judge opposing counsel with their reporter was there how employer learns something through representation even and as a judge wilson pointed out and cited authority for if your lawyer learns something through the representational process while somebody else may be able to say hey if the judge is there an opposing counsel is because it's not a cause it's not a communication confidence it is a confidential piece of information that judge wilson found after a painstaking opinion was  learned by the lawyer through his representation so your point is your point is if if you represent me and i go on television tomorrow and say  whatever i'm one of the ten richest people in the world whatever i told you that in confidence now you go on television and say that you can never disclose that i said that to you despite the fact that i've made this public admission you know that's your point my point is is yes in the abstract no in the context of the whole world knows that it's not it's not unknown this was unknown this was something that happened in a not in a public courtroom in chambers seven years before the cross examination and for that reason the sitting judge who heard all the evidence below your honor said that the macrorie for quote would have had no way to asked that question but for the intimate knowledge and unlawful disclosure of zachary to the lawyer does the attorney client privilege cover fraudulent statements by the client reluctant to seal she felt that it was so damaging it was something it was so intimate so off the mark and after she sealed it thereafter judge brown himself when the law for us that's not my question my question was does the attorney client privilege relate to a statement a fraudulent statement by a client a lawyer knows of yes with one except that exception being if the statement is made to the lawyer in order to further a crime or a fraud then no but what the lawyer learns representing the client about the client's misbehavior is privileged even in circumstances if a knows where that terrible horrible situations you see the ethics first your law school where the kids are dying in the haven that criminal won't tell everybody where it is and the lawyer knows what the way or learns in the case in the context of representation is privileged position is this to rogerio believe that mr emanuel in the mortgage matter for instance was representing mr rogerio in a transaction involving mr manual's parents yes because because zachary had been rocio his lawyer that by that time for about a year and a half so so lawyer lawyer once lawyer forever that's what there was never that that's the problem and that's why he sued because the anything tinge of wrap presents evidence that mr zachary emanuel was representing mr rocio on either of these two matters or is it merely him saying you know you've been my attorney in the past and i believe you to continue to be my attorney well as judge the s judge brown pointed out in ruling that concepts your own the law firm could not use the privilege material which judge brown thought was privileged matter he pointed out that rocio had paid zachary six different attorney bills during the time period of two thousand and one and two thousand and three and that is exactly that the westboro matter was going on so he was pained him to do it and do any of those bills reflect that they are payment for west belt so seriously that high would definitely go to the runner here if it were a tie but zack was acting like where he was charging him like a lawyer he had been his lawyer in the past and he never said i'm not your lawyer anymore that's not the way a lawyer should behave and that and as a him was confidential and the facts below found by judge wilson and down again by judge brown and tell the trial when all of a sudden judge brown said there's no license to law anymore  that's not the point that the privilege is not about lying it's about protecting profits all right thank you ok thank you honors with certain answers based on the record the questions that your honour's answered that are asked rather a forced evidence to leave you asked mr markham whether there was any evidence that wall of a retainer agreement any an issue of an attorney client relationship britain hardcopy well there is none you can scour the record all you want mr markham because in the next four hours or forty days doing it there is no evidence of in the record suggesting that there was an attorney client relationship to the contrary however in regard to the mortgage note there is evidence in the record testimony a trial testimony during depositions of mr rocio where he had his own lawyer a mr jenner own that name is reflected in the record whether he did or did not the other question i think judge ross you asked mr markham was well typical litigation don't you ask the defendant about his background yes judge so first thing i do i think first  thing anyone who deposes a party in the case does prior testimonies prior cases background information work experience all offered up by mr rocio not only during depositions but the trial itself on clients did we raise the how would a geisha at all and in the line in a trial that was raised by mr mark on direct examination of his own client it was only after that direct examination where he spent countless time and energy on direct getting to the ultimate perjury down the florida case where the door was opened by him i did not ask nor did anyone ask on our behalf that the house matter be a subject of cross examination we only reserve the right to use it for pietschmann purposes at trial that was it judge brown was not asked in limiting or otherwise to allow us to speak to direct mr emanuel jack re manual on any issues regarding how argument is even raised on appeal after which upon giovanni ruled on the lack of evidence and what judge brown ultimately decided i'm talking about you know the the testimony that he gave in the right now you say you didn't ask the question that disclosed that death to moni is that right i am just to the fittings at trial itself in front of a would you ruled was that if he comes up i'm going to allow impeachment of it if you so choose counsel to cross examination cross examine mr rocio on it for impeachment purposes there was other information concerning mr roach yost background and his wealth well there was a memo admitted into evidence without objection from the other side from central bank it was the girlie memo in the sense interesting the evidence that they submit about the background was in response i was they cite the my direct examination of mr zachary manual and if you look at the questions it relates precisely to wind by line of a girly memo a memo produced by a third party in this case line by line he was in holland for a year he reported no income this year he and his family had a tremendous amount of wealth missed on this moscow issue if you look at that line of questioning there were others of it at other evidence in the record  about his background to mention the deposition testimony that he freely gave as far as the issue your honor on your honor's on attorney client relationship and just remind you focused on the retainer whether he whether he got out of the other case you know to no longer represent you let's assume for the sake of argument there was an attorney client relationship let's talk about the waiver of it whether he put it at issue in the litigation the father verify complaint he sued mr zachary manuals law from his appeal that issue  he took the guy's deposition four times four times asked and detailed questions about the of westcott matter in his dealings with his parents i took mr rogers deposition for two painstaking days where i a tons of questions about his communications with zachary not a wants was the attorney client privilege invoked so all three elements and they're all destructive tests all three potential waivers occurred he didn't waver when asked  voluntarily disclose it and he put it at issue in the litigation there's not even a close one on judge brown's ruling on this issue you're on the attorney fia issue that was not argued but i have any question the only thing i would add to that is judge brown spent three years case managing this case judge brown giovanni spent just as much time judge wilson before judge brown spent time in this case there are three hundred fifty fust docket entries there is corresponding litigation  where pretrial this is not a simple collection case mr roach it does and continues to do everything possible to avoid this judgement there is a current action pending we cited in our piece of our papers to inforce to judgment man with all the wealth doesn't have any money few haven't you know the questions your honor be happy to answer we believed it was done but they raised it again as part of what they wanted to do in their papers we came to this after judge we made a motion in the name to prevent any communications from from being exactly and it's different from getting information from bank documents and it's different from getting information from a deposition the getting it from a former lawyer but you know before i was a judge i used to take a lot of depositions under oath and you go into all of that so that independently wouldn't that have been discovered some of it may have been and sprog because mr lawyer a lot of it may have been but your honor that doesn't excuse the short cut and the reason why the mandamus which sat with this court about five weeks where this court didn't just deny it the court said you have a remedy after judge sort of my worst case a recent case to the effect that you can make your objection and then do it below below i asked how to not be allowed to come into evidence the judge said i've ruled that it can it's up to mr maduna mr maduna i asked him if he would and fairly he said he would that is the only reason i asked the question because i knew it was coming in we didn't come from trenton over here to try to get that would have you know in a way it's a kind of the ruling that you can't appeal because it's not adverse if you brought it in yourself you want to believe that there's case law to the effect that if wasn't and they had fought us all the way saying they should be allowed to do you see the cases support you on that yes you want to that if you are pretty something out to defang what you know a judge has ruled that your adversary's going to put in and what your adversary has spent the last three months fighting to get the permission to put it in and you do it as a d thing mechanism your honor you're allowed to do that and just if you could just well the question isn't whether you're allowed to do it the question is the allowed to do it and then say i was forced to do it well preserved you quite right i believe you preserve your objection if you do that and here's how important that how thing was that how trafford's was it is the centerpiece of his closing argument he told the jury this guy lies he lies to judges under oath he's lied before he lied in the house matter a lawyer asked him a question except except for it's right in the middle the breach that's not the test the test is if they have access they should do it the hard way your honor like you get it like i do it like most honest lawyers do it and they say they're dishonest mr zachary was just telling everybody he could the first complaint was stricken because it was laden with things and he put in the record that the judge first judge hughes sealed and then judge wilson stricken then they put it a second one then they ambushed him with this how thing on the stand then the judge sealed it because it was so intrusive she it and so harmful that she sealed it and then we tried to fight to keep it out obviously we didn't bring it in practically we brought in because we knew it was coming your honor and that's the only reason we brought it in to try to have least have him have a chance to explain it we wouldn't  did all the motions the c o below i believe have been decided and matters have been ordered sealed all right to the full extent that he has motion here is still pending yes ron i just want to confirm ok thank you thank you for your time and i thank you