docket this is one of the few cases i guess the only thing we're agreeing on is on the a power one thing they're the only one right off the bat i think it's an important place where in the dispute arises is when we're looking at a case where the court has applied traditionally stoffel counsel for the f l e believes that this court should apply an abuse of discretion standard we believe that or his discretion in wowing evidence of a certain nature in this case we're not talking about the allowance of evidence we're saying that the court system as a matter of law complaint never got past the pleading stage and that has always been  noble review and i don't think there's any reason to the part from that standard of review and the most recent case that's been cited on this is the still this case from pronouncing it right but in there the appellate court first district are made once again clear that the standard of review in a case like this is the noble the other thing that the court did in the smallest case is it said in a plying that doctrine that was applied by the trial court hearing asserted by the defendant it said you have to meet certain elements and there's five elements but more importantly in meeting the five elements cell was made clear that the party seeking to establish the a stop hole has the affirmative of proof they have to come forward not with just evidence but and show them by clear and convincing evidence and i can't imagine too many cases were court can make that decision as a matter of law but focusing on the record in this case  says judge savage in order to reach the decision that she did and she did it in two parts really she applied the doctrine of judicial or stop all based on that may fourteenth twenty and  and the divorce of were combined for purposes of discovery and he testified in that transcript on may tenth i'm a fourteen twenty times i've gone through the transcript again not only in writing the perry for oral argument and i can't fathom anything within that transcript that mr palmer it said that was totally inconsistent with the position he's taking in the malpractise case namely my client mi counsel my attorney failed to properly advise me about what a prenuptial agreement can do what it can be used for and how it can protect me counsel did he say he read it and it was fair and reasonable that's the second part of how judge savage yes he did he answer your question and your your honor that was the second part of judge savage decision where she relied on the transcript from the prove up hearing on january fourth twenty eleven and that that you know you have the two competing cases there your honor you have the larson versus o'donnell which was two thousand and five decision and then you have the wealthy world which was the two thousand and seven decision and in the first district in the wall kind of basically two different times under oath he said read it and it was fairies that's the marital settlement agreement he said he read and believed it was fair and reasonable and you have to do it in light of what occurred at the time it was fair and reasonable based on the fact that his spouse had a prenuptial agreement that was going to give her the moon the stars and his counsel was able to somewhat familiar it the damages that were caused by this prenuptial agreement by entering into the marital settlement agreement that will be both cases that doesn't fall under the doctrine of judicial a have what was he able to do he could keep litigating justice and if he keeps litigating and that prenuptial agreement is applied then he says he's lost a lot of money or like a lot of par how that's not a defense of the prenuptial agreement but what was the defense and what he asserted was that get been duped into the frankly marriage vote that would suggest that he did not have he didn't enter in the region with full knowledge of what if it's not effective as to the why you can't say my lawyer screwed up so my wife shouldn't be entitled to the contract yet her into that that would not be tolerant of the classic mutual mistake or fraud that would be a unilateral mistake that we're looking at it in the shoes of being lawyers but in the shoes of the client if we get into the skin of the wind the client says this is what i want to achieve and then it's up to the lawyer to say yes these are the alternatives this may be a better way of doing it that's and we've said that the the manner in which the prenup was done if this divorce and it as i'm sorry if this marriage ended as it did within three years she could never under any circumstance every see what she did under the prenuptial from any judge over neck or house or frankly what she received under the settlement the grievance her the problem isn't there like a consideration factor for the case to come into play here too yes you're asking us to create a duty in the in the realm of legal malpractise or it doesn't seem to be quite out there and if you make the point that well if if there had been no prenup what would it fair just worse judge even a o and here's why bill has it again this would go to expert testimony and questions a fag but the five he paid to watch to get out of what could have been a very bad result will have expert testimony it the duty arises by virtue of the british unship right i mean when an attorney enters into a relationship there's a duty period that that's it that's a matter of law that's undisputed throughout history so then the question is under these circumstances what are the obligations that are owed by virtue of that duty and that's the professional judgment that has quintessentially and always been the subject of expert testimony so in our complaint we've led the duty is that the turning has an obligation to explain the prenuptial agreement and other alternatives that's not a one to lead but i don't think that's the legal decision of what a duty is a duty is as a matter of law there a duty take the next step and what should the attorney of done that is he that's a question that the courts have always said that the attorney exercise her professional judgment is one for the jury and it's the subject of expert testimony i'll have an expert that says yes in this circumstance that where had that duty and i'm going to answer your question again in this way if you ruled today that the court improperly entered a two six nineteen that does not say to the world  attorney has a duty under these circumstances what it says is there's a question of fact and that's going to be decided by experts in the trier of fact the stars of two six one five know it the same thing same thing if it doesn't say that this is a duty practice right all right and i see up a problem here in their grasping is to establish rule saying that a divorce attorney drafting a prenup has a duty to advise the client duty and that case was even i mean remember and there the lawyer had a contract that said i'm going to represent you only on a worker's compensation and then the third party complaint against the contractor was dismissed in virtue of the statute of limitation and the lawyer filed a motion to dismiss a hey my duty was contractual and i was limited to the workers comp and the impact of the trial court agreed and it went up to the keith said no of lawyers obligation it's within that scope is absolutely in the example you use just as i believe that a lawyer if he undertakes representation of a client has an obligation in the context of divorce if there's tax implications either explain those to the client or as an keepers as white said refer him or her out to make sure that those are covered because that's what the client is going to the attorney for for the advice and for protection and for me asking questions just generally does it will supersede a prenuptial agreement you know terms and conditions well i can answer or not that i don't want to but is this something that would be interesting for a lawyer to tell their client relative ever something that's part of a prenup i've i've i've not seen that ok let me ask you just as far as appreciation of marital assets premier lessons this is something that's never a term or condition of a prenup yes it can be yes and let's say explain to a client all those things that are within the realm of possibility of the representation keep extended not me and said you should consider these other things but in the context we're talking about here yes if you go to of lawyer on a prenuptial agreement then you should consider everything that could possibly affect whether or not the client should enter into it i don't think that's an reasonable number one and number two in the end it's still going to have to be established by proof in a trial my complaint here would sustain i can't just walk in and say i went i have to have an expert to sustain justice that allegation the allegations contained in my complaint i need somebody who is qualified of that meets the expert requirements for being an attorney to give an opinion and then the attorney gives the opinion yes these these are the practice it's a part for standard is that right in terms of proximate cause right but for yes ok so do we even get to that i don't think you get to that and i think again in the recent decisions out of this court the but force always a question of fact i mean here it's an easy but for it i mean you've already calculated your own mind it's at least two hundred thousand but i'm telling you that in front of a jury there will be testimony through experts that this thing either one like  justice he may not have entered into it and so he's out five hundred great and that's for a jury to decide to do they believe him or don't they believe him on that point but the expert will say that i mean look he gave up more than you write that it in this circumstance i would say at this point underage to six fifteen that is not the that is not something that's the cited on on a question of law as a matter of law we haven't played a complaint that's easy i think in that circumstance whether or not we can prove it is a different question and that it's just like a medical malpractise case when you go to your doctor and he says you have cancer c a should the doctor explain you can either fight it through surgical procedure or there's this new procedure that they're doing over here in cleveland at the cleveland clinic we expect the professionals when they're acting just professionals are going to give i am not complaint and paragraphs nineteen paragraphs twenty i only say that there was a couple of things at least explain to the client what you're giving up in the prenuptial it's more than you would ever have to give up if this divorce hands in ten days  six months and three years and five years i don't believe under these facts that are put in this complaint that that's too much to ask a lawyer and explain to him how the divorce procedure works and how she wouldn't be entitled to half of what you're given or if this divorce ends of three years that's this complaint i'm not asking that in addition he should go out and say well maybe you should marry her believe you should get this this case is on a very small set of facts that are set forth in paragraphs nineteen and twenty and it's it's those facts that he should have given that information vice that these are the options you're giving up too much in  exchange seat and keep it away from the new wife and here's the irony he didn't need to put that in there that's premarital it was never an issue he was never going to lose his new york stock exchange seat so he gave something for not like they're person larson where the guy said you're going to pay this and me and it's and you're going to pay this in child support and the numbers are there and he agreed but not that weren't they i mean to question i know you claim there's a duty to advise is there a duty to advise and updated as and duties of care and i would take the position that if there's a change in the law it's specially in the area of tax or wills and estates that you as an attorney have a responsibility to inform the client about that yes even if the attorney client relationship has been terminated if it's been terminated no well isn't that what happened here what was the continuing attorney client relationship once the prenup was written well that the law didn't change the prenup when it was drafted was the problem as i know many of the cases referred to have to do with lawyers who prepare the prenup and represented a trial or no i think that happens but that's not their come out practice occurred in the prenup and the fact that a pops up later are in the divorce action is something frankly that should be anticipated by the boy or the kind of lawyer in this case but that doesn't that i don't think that changes my my statement because there's just there's nothing in the prenup was done two days before the marriage so i think it was something like fourteen fifteen years in the family law of division of the circuit court of county so she understood very well what green ups are all about what these kinds of situations can give rise to the cases as you as your honour's are have put their finger on is all about the lack of a duty if you ignore lawyer in a judge has been with people actually so we you know to take a position rather than rendering an opinion in a deposition in isn't why isn't it's too much of a stretch to say his testimony in a deposition somehow question about why do you think the pre know he is is weak or undermined and then there's a there's a break at some point right about the appointing he goes out of the room with his lawyer and he comes back  the position testimony and how malpractise is the elements of malpractise or are different than what's going on of course but i think it's quite clear that he that he made a strategic decision at that point not to say anything about the male practice he could have filed a lawsuit in order to preserve the statute of limitations problem which we also argue should have been decided in our favor that's that's the one element that i think judge savage didn't go far enough time although she said it was hard to believe i think were her words and her decision there when colette filed for divorce in i believe it was november of two thousand and eight  pollack wouldn't of told his lawyers hey i got this prenup and they might have looked at it and said well this is going to be a problem and the fees started racking up yet he files in the mail practice case more than two year two years after that point in we suffer consequences of stretching every day in court by failing to do that at the time he didn't preserve his rights we'll be back to our spiritual limitations argument and i don't see that it was so different  properly advised him and then later saying no they have said he never said that he just basically said they didn't give me good advice and the testimony regarding whether or not the settlement was ok done within the context of that settlement he thought it was a good settlement under the circumstances and he doesn't think that that's inconsistent position i think it is an inconsistent position i think to say the only thing that i was troubled by is that she concealed from the fact that she really did love me and that she be frighted me and that there was some mental issues i had and he gave two or three issues in the deposition in the divorce to the say that that's totally different in terms of an outcome from  alleged mel practice of not of person or next advising him that you could have had a sunset clause in the in the contract i don't see the difference i don't see it being totally inconsistent  it being another way that the prenup could have been undermined and if the wife chose to use that instead of the three things that mr pollock mentioned well then i don't know that that's tough of the having knowledge is one thing but then you have to then him or any information based on that knowledge circumstances might reveal there was a duty for example let's say you had struck your lawyer yet you want the your payments to be tax deductible and it's clear that you would strap it to the lawyer to do it that way and the lawyer goes oh well you know there's no way to do that well if it runs contrary to the tesla and it turns out the lawyer could have advised along those lines and i suppose there was a duty to advise their way but this case is the rules of i guess you call it equitable distribution the the lawyer should have at least some knowledge of the illinois marriage and dissolution of marriage act and if you if you draft was seven or eight years he very probably was worried about his new york stock exchange seat because guess what those things increase in value now it may have good down in value as well but there was a strategic decision he made pointed out there are an infinite number of possibilities it is virtually impossible to write a decision in my opinion that articulate it's more than possible duties at a lawyer  might have or not he have with respect to a particular client and i think we have to deal with the facts that we have here in the facts we have here is mr canseco says that by failing to advise that there were there could have been a duration of marriage cla sometimes called a sunset clause in the catcher act that that lawyer created or committed an act of malpractise and i think he doesn't say a bad about the sunset clauses what is a kick in where does it say is it in the reverse is it reversed on sequester pay or marriage after three years is it one year is it two year is it five years is it ten years it's infinite and that's the problem so to say that a lawyer has a duty to do any particular thing of revised motions to dismiss again mr kind of sect didn't bring forth any kind of a case that said there was any such duty and here we are in this court and they still haven't done it all he says was a dirt an attorney is a duty to act to say that there is no such thing but aside from that we really felt that judge said was absolutely right with regard to the judicial south pole i think i don't know if you want me to wrap it up  i think that's what you know i don't recall everything laggard in the brief i pretty much want to rely on what i did say in my pre but i think that this case is different because of all of the stuff that was in the record there is even if you do review it denotes i think you're going to come to the same conclusion in fact we were asking for fees on appeal i thought this case was over one when it got thrown out with prejudice and i thought maybe when i got the notice of appeal that he had finally found a case that sell guess what there is a duty to act a certain way or do it to advise but the duty is not just generally to advice that's part of the competency issue but in terms of heat abuse of discretion i would every other case before that that the elements are there what is the that duty is what a reasonably competent attorney would do under the same or similar circumstances around and we have decided that issue only through expert testimony not in a pleading i'm not going to in any malpractise case like he first says white or were they supposed to come in with a case that says the attorney should have advised the client about the third party action that's that's not even a test that's not even a standard that's ever been applied by any court and how you determine duty we can't sit here in go through the extrapolations that we've been trying to do it's impossible and that's why it's a question of fact have we pled an attorney owes to a reasonable care of duty that's the standard and then after that it's up to x first decide one what is the standard of care and two was a breach the questions that you were asking about ad infinitum what a lawyer should or shouldn't do under the circumstances we can't answer here that's up to expert testimony or gone beyond well beyond what's required in a pleading the pleading says does the attorney have a duty of care yes and your conclusion is an attorney always has to act as a reasonably careful attorney whatever like under the circumstances and then as the first district has said throughout whether that duty has been breached is a question a back which needs to be decided through expert testimony that's the law in this state so we what we've needed to in order to meet those requirements and it's because of it he got counsel says he talked to like fifty different attorneys i talked to other attorneys and they said what he did is wrong that's not to be decided here  especially into six nineteen this is like a trial record as i read the briefs here like there was a trial there was never trying or fact persis reagan says judge savage even if she was in the  divorce court can't use her judgment in deciding whether there was a breach but was very clear on that it even if she were sitting is the fact finder she couldn't use her own judgment it has to be decided through expert testimony transcript and i apologize that i don't have the record on appeal number but it's at the prove up theory page sixteen he the way it was phrased to him is if you don't agree to the salad or if you say the settlements not fair do you understand that colette can go back and try to enforce the prenuptial agreement so it was supposed to miss simple as is a fair ju wish twenty is specifically set and you understand that if you decide to contest this settlement agreement that she can go back and say i'm going to enforce the prenuptial it was the old is somehow invalid and so the poor guy is sitting there he said well yeah i mean how the heck would we ever let our client say something's invalid or not valid and that's not an option it's a legal conclusion your opinion and he says this is why you know that if you read the record and wind up my client is asked about the inconsistency and there sure is a break and what the attorney representing my client the divorce attorney here is he did what a good attorney should do he said don't talk about the attorney quite mean occasions that you and i have it's right at page twenty five if you read from twenty three to twenty five he said instructs the client not to discuss the in consistencies based on attorney client privilege and that is something that this court has always that held recently upheld in a decision that i argued before this court less than three months ago and i took a contempt order protecting the attorney client privilege keep this lawyer in put it a good lawyer should do said don't talk about what we talked about regarding consistencies to come in here and now say that by clear and convincing evidence that proves as a matter of law  was should apply is it's not supported by the record there is nothing totally inconsistent in that testimony from what the malpractise case is doing and it sure hasn't been proved by clear and convincing evidence