used or thesis research versus brown and vain the ethical require excuse me where the ethical rules require informed written consent and that requirement cannot be satisfied by anything less i would be happy to address the specifics of each conflict this ethics violation has been conceded by brown in being and was recognized by the district court the district court refused to follow california was even though california law governs both under the terms of the representation agreement and the principles of federalism reflected in the federal arbitration act under california law there were representation in violation of the rules of professional conduct is unlawful and whole any arbitration clause in such an agreement is invalid and where there were snow of valid arbitration clause there is no valid arbitration wark the district court misread the california rules of professional conduct concerning the provision for clients informed consent to any conflicting representation counsel and yes good and right you didn't they tell you that they had a  own senior management and even though brown in being wrote that twenty six page memorandum describing the conflict in explaining it and laying it out and giving back to its own senior management it did not write a single california rules of professional conduct provision with respect to the the provision for informed written consent the district tell me the district court held that the representation agreement this arbitration originated by reason of whose request to you are i filed the original arbitration agreement pursuant to section fourteen of the representation brander's the agreement boy therefore the provision in the agreement calling for arbitration is void therefore they are period she should never have proceeded in the first place and yet here i was the one both sides jointly submitted their disputes arbitration in line with the arbitration clause in the original agreement and yet the california supreme court entertained the challenge to the would of the of the arbitration after it was the party that initially initiated the arbitration even though it's your right did not know the basis for the invalidity of the underlying agreement with the district court in the district court concluded the two year i had actual knowledge four months before the arbitration of the evidence of conflicts that the district court did say that your honor now legally it's irrelevant because it's a void agreement but what the district court cites there is in iraq a being one of the representation agreement the representation agreement which includes the arbitration clause was unlawful because it was entered into based on a conflict of interest without the client's informed written consent and where do you get with unlawful words that come your honor where does that get you the know that's a nice label i'm just not quite sure how it plasters on to this circumstance unlawful unlawful violate some law yes your honor one which law the rules professional conduct rule three three ten which prohibits an attorney representing a party or the conflict of interest for which it is not a team informed written consent it also violates the policy of the law that's reflected in the must be vacated under the authority that we've cited the summer your judgment in favor of brown and dana must be set aside and based on the undisputed evidence the least with respect to this one on flicker of interest i think we submitted undisputed evidence with respect to all of them but once the crisis partial summary judgment must be entered in favor of its fees and expenses incurred plus the interest why don't you retain the rest of your time research in connection with the submission to the arbitration panel your honor i believe the essential question in this case is many a party who invokes an arbitration provision and during the course of discovery related to that arbitration petition becomes aware of the facts which it believes and as it now alleges in this court w believes voids the contract under which it invoked the arbitration but nevertheless goes forward never raising the issue of the arbitrator and in fact submitting the documents and arguing those documents only that they go to a part of the malpractise claim can he then after he loses that the arbitration can he then turn around power of the arbitrator or the court for relief and the court says it's raised as a defense in all of them so we respectfully submit it in a sense it is it's not where the court s for the first time it's raised as a defense so that in the arbitrator for whatever reason decided that equity or didn't have to follow the law but it said you cannot use a contract or a broker cannot come into a court of law or you can invoke an arbitration provision to enforce whatever rights because you don't have any rights what the district court found in this case and are very want to portioned arbitration but you go forward keeping them in your back pocket saying if i lose i'll go to some court or when they try and confirm the award i'll say hey should never have been here jurisdiction in arbitration cannot sit silently by wait to see about the outcome and then go to some court to get relief and that's exactly what has happened in this case what's the what's the last indicated in his brief that he thinks this matter is before your honor's on a de novo in so far as a confirmation of the arbitration award judge white made findings of fact so that the test here is abuse of discretion and he tried on that what tice research had in their possession and the knowledge that they had was one in the arbitration demand itself there's front of him brown in bain's internal conflict check which identified back tell cellular of arizona being a wholly owned subsidiary of pac tel cellular being a wholly opinion is that price research had in its possession and had in its knowledge all the facts which they are now alleging give them a basis for saying hey this contract was that's the difference here parse it doesn't apply and control your response to that is well i think that the fact that they chose not to frame it in those exact terms they did submit those exhibits to the don't believe that that attempted distinguishing of my check plus five check is only one in a long line of cases that do not allow a party to lay back in the weeds and see what the outcome is going to be and say the same thing about tonight again and turning to the assuming that we are correct as we respectfully submit we are at the arbitration to judge white was correct in confirming the arbitration we believe that that precludes any attack on or any claim that there was something wrong with granting summary judgment because the complaint is articulated in the identical terms of what was requested in the arbitration and that is claiming that brown and bain somehow or other committed malpractise which the arbitrator in a very carefully worded opinion went through every act that they alleged can do equity he said i don't think i have to follow the law i can do equity and i don't think money should change between either parties in this case so he was not commenting on how he felt about that there was something wrong with the with the conduct of brown and are you arguing that it doesn't make any difference whether it is a void or voidable representation again it doesn't matter if it was a void agreement they went forward on it anyway and you have urposes of the arbitration was there any feeling or was there a disclosure sufficient or was there a failure to disclose at the time the representation was entered into which would have rendered it void under california law i don't believe so here i think there was sufficient to there was not in the first place i don't think there was a conflict conflicts which he has become aware alleged conflicts g t t us west and eighteen t the district court judge found and i believe correctly that those weren't contracts believe that's correct but again the fact that there may have been some additional conflicts does not change the analysis of what the problem i'm having with my check is that in five check the arbitration agreement itself wasn't being attacked as illegal or or diffract there it was that the arbitrator didn't have the power under the agreement to decide this issue that's somewhat different than an attack on the agreement itself isn't it but it's it is that when you say the power it's the question is did they have did the parties confer power well that the there's there's no problem at all the arbitration agreement itself that was an issue in fight check it was just that whether under that agreement the arbitrator had the power to decide this issue here we have a slightly different case where the arbitration agreement itself is under attack as being invalid but there's no question here that the that the arbitrator had the power as long as the parties  agreeing to go forward in spite of this yes maybe that's the theory of new contract i don't have the absolutely we believe that is analysis of many of the cases some talk in terms of waiver some talk in terms of the stop and some talk in terms of saying case of the fight shack and in those cases you do not have an underlying unlawful agreement and in fact what the court states explicitly as iran are noted is that in the court there states behavior and that's the the argument they're making with respect to fights jack in yeah and there are two things first of all in that case they proceed into the arbitration with this imply contract i guess the argument here is that no factual predicate because the arbitration the plaintiffs explicitly stated that is brought pursuant to the legal services agreement the section fourteen the arbitrator's a wart explicitly states that right pursuant to the legal services agreement at paragraph fourteen it's also wrong as a factual matter because california was distinguishes between a parent and a subsidiary with respect to  standing to come now in suggest maybe there wasn't a conflict after all this is critical with respect to the factual allegations and the one document that the district court cites for this allegedly clear knowledge the their prior brief to this court in the earlier appeal at page seventeen footnote two there is not an automatic treatment under california law apparent in subsidiary for conflict of interest purposes now that may not be a good rule maybe there should be an automatic treatment but that is the law as we take it and the laws we find it in california must be respected not only by the district court but by the parties in making cla supplemental excerpts of record document ninety two page eighty four is the new matter memorandum which only identifies the legal relationship of parents and subsidiary and under california law that did not put us on notice of a conflict of interest only upon finding of the internal memorandum do we discover the conflict of interest and only upon receiving answers to iraq at stories in two thousand and two can we find out interest were first of all there is no knowledge of any conflict of interest during the arbitration with respect to conflicting representation conflicting relationship as you and that's what was argued but there was no knowledge of the conflicting representation which rendered the underlying legal services agreement void that was discovered afterwards beyond the fact of the conflict of interest and in that subsequent paragraph it talks about the many mistakes that were made by brown and being so as many of them did not rise to the level of legal malpractise i can throughout that statement of reasons at least fifteen references