grant of motion for summary judgment by apple lees duncan and fullerton these are city of lincoln nebraska police officers sued by awnings in their individual capacities not in their official capacities as well as the denial earlier in the litigation of a motion by awnings to disqualify the city of lincoln nebraska attorney's well i understand that the adelies have argued that well the word in dean foods products the court held that the liability extended to  lawyers the now assistant attorney general for the state of arkansas i can't remember his name right now but griffith and it said well it extends to his staff and i understand that the apple lease position is well that doesn't necessarily mean all of the lawyers i do submit that i believe that is what the court meant by the word staff just all staff all all other lawyers it wouldn't even to me makes sense to say that it applies to a paralegal to the paralegal doesn't practice law so i submit that when this court decided dean foods products in one thousand nine hundred eighty nine and said that the liability that not only can griffin not be adverse to to the to dean in that particular case nobody else essentially in the attorney general of the state of arkansas office could be either and so and that's i understand that's what the applebee's position here is but i i believe that that's what this court help is is is that mean as far as we know mean generally with public defenders office i mean did she work on his case defending you know i don't think so i mean i guess we're willing to stipulate that she didn't work on his case i'm not entirely sure what it means i mean she did in the probably about her knowledge or familiarity with his case did sheep did she have any knowledge of the case we don't know i mean that and that's what that's the whole issue here is that we don't call her as a witness to determine whether she learned anything or not it's just a purse say rule right the attorney client relationship creates an irrefutable presumption that  disclosed and this court has held that that rule applies to all other then partners and associates in that firm the public defender's office is essential in a firm there are other lawyers in the office deputy public defenders chief deputies that are working there at the time there is any question that she was there at the time that a lawyer in that office was defending on ng's in the related criminal case no question at all and office to represent them in this case is that your argument the city attorney's office you mean are we were you're trying to disqualify you're right yeah this is the city of lincoln attorney's office you know so i mean i hope there's no question that eliot herself could not represent an interest adverse to on things in this case because i think that's beyond debate she moved to withdraw right away and there's not what you're asking i believe that this court has that is the authority of this court is that the impute the conflict is imputed to all other attorneys so when when eliot she leaves the public defender's office and when she worked there at a time when that office or another attorney in that office was representing awnings in the in a related criminal matter she goes to the city attorney's office not only can she not be adverse to on things in a related matter but none of the other attorneys in the office it's the it's the  taint it's that it's immediately tainted moreover moreover in this case we cannot forget this let me let me give you a hypothetical last assume that the public defender who was there at the time is out of office in a new public defender has been a point lek did and hired all new lawyers and you're saying the office still your request is broad enough that the office would be out of business on your client's cases right yep still because i mean what matters is that she was there at the time at the time that he was being represented by that office she was there and with this court said that it wasn't any of the personnel i'm sorry it was the office but it wasn't at this time any of the personnel that were there at the time that you're still just the public defender's office is out of business without regard to the facts of who was there and who did what or anything like that the city attorney's office not the public defender who ever you're trying to dis the city attorney's office yes yes yes we believe that this court's precedent is that first of all well wait a minute you're not saying that if the city attorney were replaced and hired all new staff that that office would be disqualified your argument hinges on eliot working there yes i'm sorry if that you're saying if you're eliot is working in the city attorney's office your theory is her conflict is imputed to everybody else in the office whether they are new or veteran or what not and if but if she if she can be screened and the other people are still eligible to work then you loose that's what the case comes down to yet if she if she can be screened i believe that it's a person a rule i believe that what she joins then it's just as presumed that everybody else in the off you claim or a due process claim or both well which is the rule is that we evaluate the fourth amendment reasonableness standard applies not merely to arrests and seizures but searches but but also the transportation and booking of suspects so i understand that the trial court said well it wasn't a seizure banks wasn't seizing and well ok fine i mean we also asserted alternative theories one either the fourth amendment or the fourteenth the men i guess we're sort of both of them that but i believe that the court could use the objective the reasonableness standard of the fourth amendment since it was he he was  mean he was he was being transported from the hospital to the jail i mean he was clearly sees at that time i guess at the end of the day it doesn't particularly matter to me whether you call it a fourth amendment claim or a fourteenth amendment claim well i don't care whether it matters to you but i'm curious whether the standard is different and if so which standard i would hope that the court uses a reasonable the standard as opposed to the eighth amendment deliberate and different say why why is that the correct stan i mean i understand that it's not a situation where i mean if if on the drive from the hospital to the jail awnings starts vomiting blood or something like that or starts seizing or something like that and then he just keeps going to the jail and doesn't turn around and go back to the hospital i don't think there's any question that that would have to be evaluated under a fourth amendment you know reasonable in this sort of a standard all right so you think it's a reasonable a standard in your theory is banks was on reasonable here because he didn't relate to the jailers the statement right the the physician said he should be seen in the e r has issues discharge paper that says needs to be seen by a physician within you know one to two days and so that was a twelve b six that wasn't summary judgment that was dismissed he was dismissed out early on so what is that negligence by him well it's not elaborate indifference right or are you well i would just i would serve that it was also deliberately indifferent to a serious medical need if he knows if he's got a piece of paper from and that's what we alleged judge cup aired he said well there's no way banks could have known about the subsequently diagnosed fractured ribs in the collapsed lung and all that stuff that happened fifteen days after awnings got out of jail we're not saying that he banks knew that stuff were saying that banks had a piece of paper that says from a doctor that says these to be seen by a physician if what we allege is true that he did not relate that to the jail staff that they took an arrestee to the hospital to determine fitness for confinement and specifically doesn't tell the jail that having that piece of paper in his hand then not only is it unreasonable under a fourth amendment standard we believe that that would apply but also would be deliberately indifferent to a serious medical need because he's got a piece of paper signed or you know written by a doctor that says needs to see a doctor i guess is he there also say that he's fit for confined it did it did it didn't say that he wasn't yeah we're not saying but but what's the what areas medical need then that he was i mean i really i have had this discussion sometimes when you go to get up you bang your head you go to the emergency room they say well we're not seeing anything right now ok no subdural hematoma no brain bleeding nothing like that but  these things sometimes take a little time to find out so you know watch watch him you know it make sure that he doesn't fall asleep make sure you go check on him every thirty minutes or every hour that's you know he's ok to go home from the emergency room quickly and then i'll sit down and submit come back for a bottle but eliot did do some work on this case she served again this is she served the filed notice of her intent to issue and serve these subpoenas duces tecum on these non parties well there wasn't anything in the face of the complaint the face of awnings complaint that suggested stated suggested hinted implied that any of these entities except for one brian brian hospital had any records in its in their possession or control response to the subpoenas so one possibility is that she was guessing guessing another possibility is that she had acquired information yet as the result of her former employment at the public defender's office that but but i believe that this holding from dean foods products says it's per se it's automatic it's a structural issue it's not we don't we don't want to rip off to you i think you want to go back and start the case over with newco yeah i think it is a structural error i don't think it's a matter of prejudice that court in dean foods pot products keeps talking about promoting confidence in the public but by the public in the judiciary that's what you want is to litigate the same case over again just with different lawyers with the same record what i would like to have appealed early on but the united states supreme court decided many years ago that attention to the precedent i've got forty three seconds left a minute i'm going to sit down for no good morning judges i'm golden i'm assistant city attorney with the city of lincoln and i represent ap elise who are lincoln police department officers joshua fullerton ryan duncan and target  concentrate the most on and the order that i think that we need to address primarily as apple lease is the motion for just qualification of the entire city attorney's office of the city of lincoln i did want to just initially address  opposing counsel's argument regarding dean foods which is a one nine hundred seventy nine case from the eighth circuit that case was ruling based on the code of professional responsibility in two thousand and five  under a different standard i also wanted to know that opposing counsel is talking about foods ruling there's a per se rule and that his argument was that the ruling of eighth circuit was that the not just griffin the attorney who had prior representation and current representation was should be disqualified but that his entire office was and in fact in footnote nine the opinion  it was just just singled out to griffin the attorney and his staff members and states we reached no conclusion respecting the staff members members other than nerve black so  client that what the pay is asking is for you to the circuit to go far beyond dean foods ruled nearly forty years ago we think that much better case for the court to look at while it isn't a brusk a state court case is the state versus has very similar facts the catch at that pattern here there was an associate attorney who really had no sort of action in the prior case and then went to be employed by the county attorney's office and in that case the state of nebraska ruled that there should not be disqualification of the entire office it was just limited to that or any i want to address the fact substantially related to the civil rights case here today but in the facts of the case are that ms elliott was not did not have an attorney client relationship with mr awnings she never appeared in court did not enter an appearance in that case and not review the file had no knowledge of that the record is clear from affidavits from her that she she had no knowledge of mr awnings she represented multiple defendants as a part of public defender's office which she has no knowledge of mr  service basically on behalf of officers that had been sued and then she had directed a paralegal to put together notices for third party subpoenas to different medical providers and granted that he was an indigent individual that he had had past history of schizophrenia so she did subpoenas for brian health where he had received medical treatment related to the underlying criminal matter and then also chose some other are were known to her to provide these types of services to indigent clients or patients who might have mental health issues opposing counsel immediately objected to filings and that's what's really different differentiates this case from the dean foods case in the dean foods case the attorney that had that prior representation of the client had been actively involved in the bankruptcy case and that prior representation had some knowledge of the case whereas ms elliott really was only attorney of record in this case for one month and one day so very very minimal activity and it really is going too far to say that dean foods is saying that the ruling indeed foods requires that the entire city attorney's office should be disqualified and we think that the district court rulings in just a court's ruling in this case is correct i also want to say that frankly about appellate hasn't met his burden to show that the entire office should be disqualified i would like to also address the arguments regarding the dismissal of tarvaris banks mr banks ms also lincoln police department that mr banks had no knowledge that there was a serious medical need and that's that's reflected in the record all that mr banks knew when he arrived at the hospital was doing the transport of mr honest to lancaster county jail was that  to i don't think that the medical records of the emergency room physician state have him follow up in a couple of days and that's my knowledge i might be incorrect on that hell was that how was that  the police reports that reflect that during the transport there's nothing there's not any lancaster county jail records that we have that show there's supposed to be a medical that's a follow up in a couple of days and really the standard for  frankly mr er er officer banks did not have subjective knowledge that there was a serious medical need and there was not deliberate indifference on his part there was not gross negligence on his part by whatever omission that he might have made and not information to lancaster county jail professor staff when he lodge mr banks in jail there so hold on so you're saying that even if the officer knew or was responsible to communicate to the jail that he was the only supposed to go see a doctor within a couple of days even if he knew that that still wouldn't be deliberate indifference because he didn't know how serious his medical condition that's right isn't that's correct i mean there's you know do not that it wasn't in the record chart no that i doctor if the allegation is the doctor told the officer that he needed a follow up examination with one to two days within one or two days you're now what about his fourth amendment claim the fourth amendment claim i think that's what this twelve cause of action which is basically that he was seized and he's arguing that that the period when banks was transporting him to the jail was still part of the ongoing seizure and that the conduct of the officers governed by the fourth amendment by the due process clause he was already whether there's a theory available that his failure to do communicate this information to the jail was an unreasonable seizure part of an unreasonable seizure appellant hasn't presented any case law that shows that that would affect a seizure i hadn't found any it's very a case law that shows that the failure to relay information or an admission of information regarding a medical need constitutes a seizure  expunged or rendered invalid therefore that the false arrest is clearly barred by heck the humphrey will know i have a question about sure it isn't so you see it's clearly barred but i thought part of the claim here was that before he resisted arrest he was see by these officers yes that's appellant's argument but do you why would that claim be barred by hack might be might not have merit but why would be barred by hack because if you set aside his unlawful her his conviction for resisting arrest it would wouldn't speak to the conduct before he resisted well he had probable cause her arrest for other items as well the and i have very little time i just want to hit a couple issues real quick first with regard to banks just call and ask a very important question this was a twelve b six motion it was that this was what we pled she talks about well there's nothing about there's nothing in the record about that whether it's in the complaint so all that was alleged what i read is alleged you are saying there some paper that he had in his hand i didn't see that in the complaint well that may not be in the way why are you arguing ok is up here it's a twelve b six motion has i happen to know that but that was the result of the other litigation but this was a twelve b six heck versus humphrey does not bar the claim because as you said correctly this  was the illegal arrest claim happened first of all we don't know for matters affidavit exactly what the incident was what he just said was the incident but we don't know there's no factual basis there's no written verbatim transcript of the