on the assumption that a lawyer is interesting getting paid conflicts with the client's interest now i am not sure that that should be taken as a starting point my thinking is when tap my credit card at the restaurant it is very much in my interest that the restaurant feel confident that the so will send them the money when i go to my doctor's office and i give the receptionist my insurance card it is very much in my interest that the insurance company will send the doctor his money and for that matter when i go to the store and pay by check it's in my interest that the store be confident that my check will clear and when i offer them it's in my interest that they accept it and not tell me something like oh we can't break the hundred dollar bill at so it is not necessarily in my interest to keep my money it's in my interest that if i want something from somebody goods or services that they get my money i want them to get my money so that they will be happy to provide me with  services now it struck me that bergman is in somewhat that position with his lawyer it's in his interest that his lawyer feel confident that he will get paid and that he get paid lots of money so that he will zealously represent ferdman so i don't understand exactly why it is inherently a conflict of interest and that's exactly our point your honor what what we're what we're advocating here is that the district court erred by granting relief on the grounds of attorney conflict of interest and part of my argument is i don't think you made that argument and we certainly did or did i did i missed i didn't he did then the warden's argument is first everything else with regard to how you present an argument and in this instance this a very technical argument requires you to tell the district court watch the state of the  that there's never been i was far as i know there's not a case which which parted out at what point in the trial the thing that i think is a case of say an actual as opposed to a potential conflict will correct and and if you like me to move on to the merits i can let me ask you a couple of other questions certainly one you mentioned that a lawyer was fired and i don't know if i saw every page have in the in the excerpts if i missed this but the way i read them they were perfectly consistent with the lawyer ethically withdrawing obtaining substitute counsel or getting his client to obtain substitute counsel because you know he was going to have to be a witness i can't tell which it was do we know whether the next thing i want to ask you is i know all the cops and prosecutors assume that the defense lawyer was a crook because they often do but i was wondering if we know from the record at whether the lawyer lied to his client in order to get his fee and sacrifice the client's interest or whether he truthfully advised the client and the client made an informed decision do we know whether it's one of the other we do and  two was about the possibility of having these funds released and the approach or the conversations that at the turn of mcgovern testifies doing that bergman is also testified to in the record go to we're going to try and get you bell and it's possible that your funds will be released that was the understanding between bourbons understanding was yes it was a possibility that he'd get some money but also  that the the client bergmann understood that and then he was going to pay his attorney out of that forty five hundred thousand dollars looked to me like there was quite a conflict on that the lawyer thought that the forty five hundred would go to a speedy and bergman thought don't know whether any of these people are telling the truth but they testified in complex thing waste lawyer testified at the forty five hundred was going to me bergman testified only one hundred dollars was going to the lawyer the rest was the police saying now how am i going to get the money which was something he was trying to do i don't believe he ever said i was going to get the entire forty five hundred dollars lance you want perhaps last question if we were and that was my recollection there was not and it appears that i did all the parties felt that there was the the record was adequate it does need to be pointed out that the record this before the court was developed in the context of age depression hearing regarding if i could have a few minutes for of i'll give you a minute or so for all thank you very much is not necessarily in conflict with his client's interests it's in the client's interest that the lawyer get paid and get paid amply in order to reward his zealous attention to the case  understand why the lawyer trying to get the forty five hundred has dollars or whatever it was is necessarily a conflict there is conflicting about a lawyers interest in wanting to get don't see that let me tell you or tell you why so you can address my problem which is what the lawyer told the client is i understand it was and that's really not that contested is although we don't have a firm deal and it will be ultimately be up to the judge i feel fairly confident that if you cooperate with the cops on helping them find the body then the prosecutor will not oppose bail and we will be able to get you out on bail now helping to find the body might be very bad for the trial however what occurred to me is this defendant i remember he had a pool party this house the swimming pool and he was able to have posed a fair amount of security one thing that occurred to me is if he gets out on bail there may  trial he can jump bail he can go to mexico he can go someplace without extradition this guy's already don't deal or in a murder or in a rapist should i think he has some strong moral objection to bail jumping direct that if it wasn't for the promise of bail or getting your money back that you wouldn't have made the statement senate things and point out the things you did is that right that right when you  the lawyer had any interest in getting the money to do what they want to do he wanted mr bergman to incriminate himself in return for really no benefit because there is a benefit if he gets out on bail and sleaze just seems to me your argument depends detectives aren't really going to be the people who tell the judge what their recommendation is it's going to be the da and i didn't i don't recall him saying that tell me what stage i don't have the i don't have the records like it was never a position before at any point in the case there was never any question say that the lawyer is then on ethical or ineffective or acting for his own interest and not the clients when he does exactly what the client wants let's be realistic here i mean this is a murder case it was a robbery case it was a he's not going to cry off if the saudis gong and i just want you the prosecutors testimony and the prosecutor doesn't really say what you think he should have said what the prosecutor says is i don't recall i don't made that very clear and he made it clear repeatedly it was constantly his his focus and that's where his attention what and i think if you look at judge mathis opinion he really gets it right because what he says is that you don't you don't let your client make incriminating statements in a murder case without getting benefits for that and there is no benefit for bail here because there is nothing on the table you don't get it necessarily so i mean and sometimes clients you want to compare to a doctor the doctors they just take the field to walk in pain it doesn't matter whether it's going to help you to fact it's going to harm you i don't know it but let me give case i don't know about that what the lawyer tells the client according to the record is if you cooperate we have a good chance of getting bail although i don't have an assurance what the prosecutor says is i don't recall a discussion of bail and what the client says is my mind was just on getting out on bail and getting my money counsel you know when we talk about whether the lawyer really locked down the most important agreements we usually see on the federal side are cooperation agreements where the prosecutor recommends a downward departure and boy those are just empty because they always leave it up to the prosecutor did decide whether the cooperation was good enough first the defendant comes in and spilled his guts and snitches on all its friends and then the prosecutor decides whether  analogy the analogy is that the defendant bears all the burdens without having any ironclad assurance of any benefit that's true but that's a plea agreement we've got nailed down what the offense is what the charge is what the bail and you think so get out on bail and flee and if it doesn't work then he'll go to trial and say i pretended i could show him where the body was but actually i had nothing to do with this murder i have no idea where the body  was just playing him and you know the fact that he didn't take that course and didn't succeed at it doesn't mean that that wasn't the plan the the point that i want to make though is if you have to look at he hires a lawyer who he thinks is a competent seventeen times or just or fifteen times that he raised the subject with the police officers and when they went out to lake need to look for the body look at the testimony of the offer to make a back to back almost i'm going to talk about with it was a no i'm not going to get my money now  says guidelines cases where the person is a category six and i wonder how come this person was out on the street to commit the crime that he's in front of the court on now head what category i don't know why people get out get bail that's what he does in every case it's not something special he was trying to do here was to work some kind of deal out that would just practice whether it's a good practice or not with a different issue but that's what he did and then had excerpts of record one nineteen you have the knowledge meant from mr mcgovern he say i knew there was no  we need to walk through was there an actual conflict that adversely affected the representation we're kind of going back with you saying well this is terrible and that would that would be a basis for strickland fine but that's not what we need we need to establish the actual