i think my first issue is the one of the application of california law in determining at the outset whether there was a contract and the appellee has constantly argued i am attempting to rely on california law to determine if there is a nun discharge ability or discharge ability of a claim i do not claim california law determines non discharge ability to speak counsel i had better before i paid anything in this case what did you wind up getting paid any compensation for your legal work i did receive some yes but i deferred on the balance it's  that i did for because it was a claim for need of some of the proceeds because not all of the proceeds were received that same time ok but you did get paid and i did  paid according to your contract correct as i recall your deal started off at an hourly rate and then she wasn't paying the hourly rate as she said she wouldn't pay it unless you took it out of whatever she won and you said well that's more like contingent fees so i want to percentage on top of my hourly rate if i got the facts right i do not recall what preceded the modification to the contract that resulted in the contract that's an issue to day it may well have been that whatever it was there was that modification and i believe if i recall correctly i followed california law when there was a modification advising her of her right to seek counsel and that issue in california if you attorneys fees written agreement with the client turns out for one reason or another not to be enforceable can you still recover quantum maryland yes that's my understanding but you have not put your claim as a quantum erowid claim you've put it as non discharge ability in bankruptcy because of fraud and that's what we're supposed to decide well they're in mind that there's a case pending in th court that is on hold pending the determination of this case that was ongoing at the time she filed her bankruptcy and it was in response to that case that she filed the bankruptcy so your quantum error would claim if any would be in the state case and it would be immaterial if she if her discharge in bankruptcy stood up is that right that would be my belief yes on the fraud it looks to me as though the core issue and what turned the court was whether her brother adequately advised her of what your contract said were the terms of employment and i am not clear on this did anyone call the brother was a witness to find out whether he could understand english well enough or not i did not because i wasn't even required to have her under california law i was in even required to suggest that if there be a translator under the california law that i cited and there's also a subsequent subsequent case of ramos which is  similar to that it had a different outcome because the facts were different but california law in this regard is consistent with federal law that if you sign a contract that you are obligated for its terms in you cannot claim later oh i didn't misunderstand i didn't understand it unless there's some ambiguity or something that requires interpretation there has never in this case been a claim that there was a misunderstanding that this was a contract for services there has never been a claim that the contract had any ambiguity or talking now about the general principle that if you sign it you're bound by it whether you read and understood it or not is that right correct ok i'm really more interested in whether in the particular context of a lawyers fees agreement the lawyer would have to make sure that the client understood what she was agreeing to pay at there is california law that says the lawyer does have some responsibility for that i know of no specific law in california there are laws with respect to when a contract is required under the business and professions code and generally speaking that is when the anticipated fees will exceed one thousand dollars or if the past experience of parties is such that the terms of the agreement are understood now and the bankruptcy context since you were posing the discharge wrong grounds for fraud i would thought that the burden would be on you to prove fraud my missing anything there you know and the fraud is she intended never to pay you say though the fraud alleged is that even though she obtained your services by signing an agreement her intent was never to pay you never pay me the balance oh but again you see and this is why in my reply brief i responded to responded in sprit find this issue and and i think this is one of the in addition to the fact that the court overlooked that in my opinion california law applied to determine whether there was a contract and i noted in my reply brief in this regard the law relative to intent bankruptcy is similar to what we have in so many other areas of the law for example in the felony murder rule you may be a participant in a felony one of your  coconspirators can kill someone even though that was not any of your intent in engaging in the felony you are none the less a liable for that unintended consequence i agree with you but let me narrow with town all right to what's on my mind here the judge made what looks like a finding of fact he says it's a finding of fact that the court is not persuaded that the brother's command of the english language was sufficient to avoid what your client said was confusion or misunderstanding now when i look at her testimony it frankly does look credible and again when i look at her testimony it looks as though there are real credibility problems she purports not to remember things that she'd have to remember to say what she was saying and whenever any answer would be adverse to or she doesn't understand that whenever it's helpful she does understand nevertheless we've got a clearly erroneous standard and then on this brother business and the judge says you haven't proved that he doesn't understand english well enough to have explained the agreement tour what evidence is there that makes that finding clearly erroneous two answers to that number one under california law that's irrelevant number two she chose the person to interpret the contract and by her own testimony not only at that time but in the ensuing six years she continued to use her brother to interpret and assist her even though she contends he never really sufficiently understood the english language or translated into putting jobbie so that he could be relied on so the question comes down to if you know somebody is where your are going now about contract law which is fine and dandy but it's not really the issue that was in front of the bankruptcy court the contract was the viability of the contract was what the court focused on the court started with a court the court said that there was no proof of an attempt to deceive which is critical want to bankruptcy there was no proof of an intent to deceive you didn't meet your burden of proof but that's my point that's where i think the implied intent comes in well in fraud you have to show actual fraud intent to deceive from the beginning in bankruptcy court you are going contract law under state law which is you know that's that's what discharge ability in bankruptcy is all about this is why in my reply brief i cited the federal cases stated you did not have to prove actual fraud in order to five elements you could imply in hand from the actions all right so let's get down to what the a couple other things your time is running down so i need to ask a couple more questions first the bankruptcy court made a finding that the funds were dispersed to you from the probate is that true son of the funds were just to me as trustee yes and so then the bankruptcy court also made the finding that you're collection efforts could not have been impeded because you had control of the funds that's the finding no no let's back up holding funds in trust i do not have control of the funds under california is that right i thought the way it worked the way it always worked in alaska was when you had a contingent fee or any kind of usually the defendant would write a check to you and your client you'd have a client sign that you deposited in your trust account and then you write two checks had your trust account one to yourself for your fees and exhibits of expenses and the other to the client for what's left this was different i received the funds from the probate as trustee for the benefit of the client they were in my old count and i do not have any control whatsoever in my old the funds so you write the check on me i all took out hard don't you write the checks on the i also account only when the client instructs me to do so i cannot do anything with my old the funds unless i have the client's authority sure so you bring in the client you bring and i want you bring in the client and you make a closing statement about what the fees are owed and you disperse them out of the account that didn't happen here i do not have the power to tell the client how to disburse those funds it is the client's determination under california law actually i don't i don't think you're correct on that  you have to you have to keep the funds and trust but this is a common occurrence and any contingency fee agree that that the you take the money in the trust for the client and then the lawyer at the closing you say are the case here are signs off on the closing you didn't you just you know that was not a part of this agreement there was nothing in this agreement that gave me any control whatsoever over the phone and did you testify to that pardon did you testify to that the issue was never raised its just like the issue and the amount of the fees there was evidence presented unopposed as to the amount i testified as to the amount there was no follow up question there was no discovery there's a procedure in federal prior and during pretrial proceedings for asking for proof of an amount that was never done he asked me what was the damage i testified t damage there was no subsequent question to that i was not asked how did you arrive at that i was not asked anything if you look at that when i answered that question he didn't ask another question on that issue it was not until after he made his motion and the judge says well you didn't prove that i wasn't asked to prove it to you your time has expired thank you when i read this case i thought how could anyone believe that she doesn't have to keep paying the lawyer when the work keeps working and if she thinks she doesn't why isn't that intent not to pay the lawyer because obviously he's tendering something about paying his fees and she intends not to pay them that's literally not true how could anyone think that they're going to get the legal services for free my client never testified to that you know well it wouldn't take testimony testimony if i ran a landscaping service and  asked me to mow their lawn and i mow the lawn it wouldn't take testimony for anybody to infer from those facts alone that i expected to get paid for more in the law on it and why is this different was paid directly by funds he was collecting through the probate process for a number of years but he got the money directly he disbursed a portion of that to her as he got each payment how much we do wind up getting eighty in our exhibits that is one example of a check that the appellant received this approximate hundred ten thousand dollars and of that amount she provided approximately thirty two thousand dollars to my client he kept the rest of his fees and this was the pattern he had engaged in over the number of years ok let me ask you another thing the judge found that the brother's doesn't speak english well enough to be much help tour but as far as i could see he never heard from the brother the brother never testified is that correct that's correct your honor how could that finding be based on the evidence well the appellant put on his plate  got some hearsay her relatives says my brother doesn't have the brother doesn't speak english well enough and her add the brother of the deceased and they think it was appellate failed to even testify and self about the amount of his damages about the amount he was a fact i did ask him one question on that and he said he's got a lot i didn't ask him any more i didn't need to because it was his burden to prove his first his case in the first place my client didn't dispute there was a contract written she said yes i signed it my brother told me what it was actually when you say the contract what exactly which contract are you referring to well that's a good point because there are three letter contracts  over the number of years and the all right was there with them stop i thought there was one written contract and then two letter that were signed the letters appear to supplant the previous agreements and my client at the very last agreement or letter agreement is how how i'm referring to it the brother apparently related to our client that he has to pay the attorney and she has to pay the attorney and she understood as being seven and a half percent of the total we argued that there was in the contract there was a contract and the car the problem here is appellant collected all the money and disbursed the amounts to her as they came in he didn't testify about an amount or show anything about how he was damage fraud the client wasn't arguing that there was no contract as she didn't understand english we never argued that we never presented as a part of our case the problem here is that  know if you can make that last statement that there is a contention that she did not understand english sufficiently and as ms reasons why she had to have her brother a sister in the fashions a question as to the extent to which he did a sister in the fashions that  situation well that's true you aren't her english very poor and the brother helped her eyes i never met the brother i talked on the phone a couple times you know i'm not here to testify because that wouldn't be a proper but that's all i know about the brother i notice that her income consists in large part of rents and that implied to me that she owned property in order to rent it out  was that so and what kind of property well you didn't look at the bankruptcy petition to find out she was receiving social security because her husband had died and so were hurt but what about the grand some asking about the rents after she received a certain amount of income from probate action she purchased a small modest house and she was trying to rent out a room that didn't go very well for her because the renter paid one month and then refused the pain she had to pay an attorney to evict there was only one instance of a rental issue is i believe six hundred dollars and she never got paid any more rents i believe we listed i believe we listed the amount that he was claiming in his state court action which is about two hundred thousand dollars my memory is failing me right now but  you know i didn't read the schedules that way that there were no assets and i'm reading those in correctly the client had a retirement account which all the money came from retirement account roll over from her deceased husband so there's something else a bothers me about this case and there are plenty of people in america and especially large number of people in california for whom english is not the only native language  gallaga all kinds of languages and i'm just talking about alaska not a big immigration state and i'm thinking how us a lawyer supposed to get retained and settle upon his fee in order to satisfy the bar requirements that there be engagement with the fee set without the lawyer hiring some sort of certified translator and since most of the people who come in with claims and don't have huge ones i don't see how a lawyer can represent them and be confident of getting paid unless he's getting paid by the ford foundation or something i don't see how he can live and if he represents people who don't speak english as their native language under your theory of the case they can just say i didn't understand and go bankrupt and this charge the lawyers claim and they get the benefit in this case of a fortune that the lawyer got for them and they don't pay for that work that produced it well your honor the fact is  appellant did collect numerous checks through the course of the probate action and he took his fees out as he went forward and his client got a lot more he got enough to buy a house in southern california  i can't remember exactly how much did you wind up with it look like she want to big case well this is all through the interrogations from yeah which was strongly contested but her lawyer one her she was the six hundred thousand dollars that's what i remember that's the number i'm remembering right now that's that's what i remember too how could anyone believe that if a lawyer gets or six hundred thousand dollars she doesn't have to pay him while he's doing the work to get it for well if the filthy was more money it would've been nice fees center a letter saying he's more money which he never did he didn't have any letters in fact i thought he but i thought he  had an original engagement in two letters that she cosigned i mean and at the probate when the probate case concluded there was no follow up letter saying you owe me more money oh so you're saying yeah i did send her letters but when she just continued to refuse to pay him he didn't send her another letter saying pay me no i'm saying he had there were engagement letters but after the case was completed he did not send a dunning letter or collection after saying this is how much i'm still of those she would have to think the engagement letters were irrelevant didn't matter her belief was that she'd already paid him everything and he's that why would she think it was everything he's still working and she's not paying well and he completed his work he had portion each time as each check was really wasn't it correctly the original agreement was that he was going to try to get her some assets from the probate proceeding and that if he was successful the probate judge would pay him and so she didn't have to worry about direct payments and that if he was not successful but there was only then that he would be charging her three hundred dollars an hour and that was the original agreement although later on the agreements changed but that was her nischelle if you understood her initial understanding is that correct that's my understanding on a