sales people so she was she was on her own out there and in that capacity yes why say she had some national role that she was not she was not speaking i never never content i have to thank you on surmise but i didn't understand why you thought the attorney client privilege ever applied to her because she was a low level fact the well there were two reasons for that one was and first and foremost was we represented her at her you represented her it seems like she's just a witness on your side and she's put max an employee such that there's an attorney client privilege that applies to work but that's not the same thing as representing to represent you yes we're going to represent you put on the record at the deposition all communications she was not speaking agent but all communications there after until until they contacted her to come to trial were through our office on the record as at the hearing the judge was careful to do to establish whether or not there why's that and she said yes there was i understood there was this can attorney client relationship  relationship and that was that was where it ended and and we agreed that you know the judge could go ahead and speak with him just speaking for me i just don't think that's enough to establish an attorney client relationship you know there's a there are some cases i don't know in the  certainly in other circuits where if you're talking about a lower level fact corporate employees in order to establish an individual representation you have to stablish the thing that the ploy came to you first not that you came to her on behalf of  question when you come up in this case i don't think but of course i don't know the yeah case within the case but all well and all you can have a situation where if you ask a question and they answer truthfully it's really beneficial to you to the corporation which is your main client but it tends to incriminate the employee who answers so truthfully so in that case if you represented the employee you tell them to refuse to answer if you represented the corporation you would just so then wait for the answer since it would be good and if you represent them both you've got a problem that's absolutely right you can't represent both  represent a witness what would you have to do differently at the deposition because you represented there that you would not have had sure if you were just there for comply for example if she was not speaking agent ok she's so she's not speaking but so if she's not a speaking agent and a question is asked that that for whatever reason the privacy issue some other i'm not i'm not able to instruct her not to answer i have to represent her to do that as as her attorney we could do that as her attorney we could interposed not only had the objection but we could issue the instruction i couldn't do that if i didn't represent her so that this is just one example but that didn't occur that i'm understand how you could instruct her not to answer well i'm thinking more about the case it is a sexual harassment case right so there could very well be some question that was sac hell where the answer would be helpful to the corporation but so well in this case she was removed from from that situation fact the sexual harassment piece the case with was gone by the time all this came out was the discrimination case we looked at the case and given her relationship to the parties and the fact that she was up in oregon what her role was we established that there was no significant likelihood of a conflict happening we normally make those calls right we're not normally promoting total was some forbidden reason and you say i instruct you not to answer that and she said who are you to instruct me i'm going to answer yeah i heard and the question for you is as an officer of the court did you have any responsibility at all to countermand what i thought was hudson's highly suggestive and repetitive i might add admonition that she could leave if you wanted to your honor that's debts really the crux of this and the whole attorney client relationship thing is i think we got a little bit sidetracked with that because  did i have a duty i had a duty i think to caution the client about what they were doing now you know i think this is a very awkward situation because i'm i'm not in a position where i can i can waive the privilege i mean the client has to do that court at that point at some point when you're public obligation is in conflict with your private responsibility doesn't on some level your public responsibility as a lawyer try me strike me as a very nice guy and i very capable lawyer so i don't mean to be kicking sand in your face but but at that point doesn't your public obligation trump your your private responsibilities to a client but let me explain how i dealt with that and because what this really comes down to is or is there any evidence in the record that that did anything in a program i think the answer is clearly no there isn't the record shows i had nothing to do with you know i have the authority to send you home and that i'm comfortable saying because ellie hudson said his own death aeration my only dealing with that with with the client was was a caution that you know i didn't think this was a good idea and i didn't think there was any reason not to have a testify because frankly not much of what that i don't think necessarily she became your client and usually you believe that she was your client did so she's sitting in the room there and you've got your corporate client sitting in the room there and your corporate client is telling your individual client not to testify  but let's assume for the sake of argument you're sitting there and swimming that you're you know that i say hypothetically that your corporate client is trying to stop your individual client from testifying you're in a worse position it seems to me ethically and then you put the layer on of the responsibility of course is how do you sort that out well let me tell you how i sorted it out and it may be i didn't do it as well as i could or should have i i don't think that's the case i think i did i did the best it could be done and in your honor checks kleinfeld i did i did find myself in an awkward position i did represent combined i said not a good idea no reason not to just you know she said because she was very upset about having been brought down there and basically coolly revealed sixty days she said well do i have to go home what do i do i said to her i'm assuming you're going to i have to prepare you for that testimony and i assure you that if you choose to stay or if you choose to go absolutely nothing will happen to you that is adverse and i will be sure of that now that was something that i mean perhaps a little bit at odds with the client and it was a situation i found myself in that perhaps i should not have allowed to in hindsight have happened but but it did the bottom line though is with respect to my interchange with her i could only caution a client she wasn't my employee i thought she was my client and i could advise her and i thought duty bound to advise when she said why i have to stay here i'm not here under subpoena i thought i represented i still think i represented her i had no choice i had to say the truth had to say no you don't have to stay here you don't have to you don't have to go either but you have to stay that's what i did i assured her nothing negative would happen and i told her i assume you're going to stay in testify and i'm going to prepare you for your deposition after that evening i had no contact with her i had no discussion with her now the only other thing that says this  you had to i just don't understand your answer i guess well the answer to her no the answer to that to the judge that you didn't really well the answer to the judge is actually easy to understand because it was the truth i i had no contact with after that evening she did call her employer and again i understand it's complicated and confusing she called her employer she spoke with with elliot hudson who was employees representative he dealt with her i had an i i just don't know what was in those exchanges when the judge asked the next day and the record bears this out when the judge asked the next day where is she i was not i was not hesitant i gave him every beat bit of information i had including some speculation which was your honor i don't know where she has i'm assuming she went home and that and that was the truth if i had more i would have given him more the fact that i was ignorant of that is is not sanctionable she was free to speak with elliot hudson as much as she wanted without involving me she was free to do this and again your honor looking back on it there are certainly things i would have done differently you know you're in the heat of trial and things are happening pretty fast that's not the question on the question is do anything that was inappropriate that was sanctionable i think i think clearly the answer is no i talked to her which was of course red flag but then it looked to me like you said you could meet with and then it looked like the judge cut you off but i can't remember where i saw that or and maybe my memory's not accurate and he said he talked to you later and then later on when the judge is more questions he said i assume she's going home at the i don't know could you clarify what  here on page it's probably a rampage one thirteen of the record that's right but i don't i understand she's not here i haven't talked to her i think that might be were you talking about yes i haven't talked jurors to one statement that if it were not explained would be a lie  well i never i mean at this point we all know it had been well established that i spent the two hours with her the before preparing or so i mean when i was saying was i hadn't talked to her about you know about which i didn't know where she was because i had talked to her about it i and my impression was the same as what you say from the context that it was not a lie because it was clear that you were just talking about i haven't talked to her about where she is now and what i haven't talked to at all correct what i want to clarification on not your state of mind but what could reasonably be the judge a state of mind where is the context made clear as or where you attempt to make it clear that what you're saying is i haven't talked to about why she's not here this morning as opposed to i haven't talked to or at  all oh i see where it is never mind i found myself with someone twelve and then again on page one thirty and i can't recall i think this might be the next day thursday she says while mr capel just told me and i said your honor court went on i'm going to take him at his word that he doesn't know where she is and i said i'm not going to be quiet about it i'm assuming that she is and i believe that she probably i'm assuming that she is and i believe that she probably is home but it's you i just i don't know and i hotels so that the plaintiff's lawyer couldn't find her at the counter to that is you know she wanted to move photos because she wanted to be at the airport said she had to take such an early morning flight was on the phone with us and you didn't know about it is that true that's correct i just i just i just didn't having to do with it i said after that night in fact i should point this out because it may occur to one of the judges morning so i was as much in the dark when all this was going on that morning as i was the night before but i guess you get back to judge question hudson asked her to go to his hotel and then she decide if you want to go to the