and her firm represented anthony cash and it's raised harassment case under california plan and housing act and obtained a verdict in his favor as such under california law they are presumptively entitled to a reasonably  application on this theory that the firm no longer represented mr cash that he had not authorized the free application and that his quote current objections precluded a finding of consent to the court's decisions is in fact legally and in fact this arrangement serves the interest of the client as well as the attorney makes their interests compatible prevents there being an adverse interest by the attorney which of course would be prohibited recovery but i think what's really important in this case is that even though mr cash initially complained that he didn't get to see the fee application when it was filed it's understood it that once he learned that it had been filed he never sought to have it  there was an appeal when he got the feel ward was going to prevent some sort of settlement and one well i think he wanted know what was going on right he clearly wanted to know exactly how much she was going to be seeking in fees and what she told  it and the numbers are there and he made no effort to have the motion stricken or withdrawn in fact she's been him a copy of of the most i can tell from the paperwork whether she sent him a copy of the motion i believe at the time she fi believe he got a copy from i guess i don't actually know the answer that but i do know that he got a copy from chevron when they filed he learned about the filing of the motion when chevron filed its opposition and in what he called this opposition to say when i read this trial i wondered that too where did this come from and the best i can tell it didn't come from chevron didn't come from the initial fee briefing seems to have come from possibly from mr cacheris filing concerning access to his file he was fairly unhappy after the verdict i think he had hoped to do better there was a falling out with counsel no question about it there was some just discussion about the file that substitution of counsel and these there were motions to compel him to disclose the file and there was sort of a skirmish going on there and i think that's what i can tell that is what prompted the district court to request additional briefing and that's pretty much decision was made without a full record and based on i think clearly clearly pashley around these conclusions to example i don't know what the quote current objections by mr cash could have been that the district court had in mind given that he's on record in march on march twenty seventh about two saying i think he supports the award of attorney fees to his counsel and of course you said the same thing to this cour forty percent and come out much better in the process that happened under california i might make sure i understand the full hypothetical ethically and legally but it's really quite it's really speculative with all due respect because in fact the district court speculates in a footnote that mr cash might have thought he could do better by settling with the record once again it's very clear following the attorney's fees in connection with the percentage it provides that the above percentages which is forty for counsel shall apply to the gross amount of money which you recover for me or on my behalf so and again an application on behalf of mr cash he's the prevailing party she files it ask his counsel of record and if whatever piece would then be awarded by the court would be added to the damages and the percentage would be applied number comes from and i believe she has sought a one point two multiplier and the cost were over two hundred thousand dollars costs were over two hundred that's right so there was really a big defeat here on a hundred fifty stand here but i would like to say five minutes from rebuttal if i may thank you very much questions focused on because i think in virtually every case those are critical points to understand it was appeal clearly although we have not been allowed to see the the few agreement does in this cross recovery descriptions provide improperly for sharing thieves with a client and that is seen from the breach of the appellate and which is argued that there is no conflict between the client and a lawyer because they both stand to gain by a few recovery we have cited the authority in our grief that that is the problem by going out of order you have to find it but  question they cannot be shared they are the lawyers fees and this distinguishes the recovery from certain other attorney's fees cases flannery requires however that the client maintain control at all times over the decision whether to pursue fees or to compromise them in order to enhance asylum and one of the justices asked a question regarding settlement i think it was was your honor and the fact is that mr cash did complain vehemently to the district court that because of the conflict with his client his former lawyers he's efforts  day after he got the verdict he wasn't happy yes and mr cash was complaining that he was trying to settle the case and the show called as he called it of his former lawyers were directly interfering with that and it is not a contradiction as much as a conflict but it is a conflict that public policy has resolved in favor of the client and what it contradiction conflicts pretty close ok and i don't think i need to figure out which is which but i do know that the long california is that the client can disadvantage his lawyer if it quits creates an advantage for him in settlement now that would subject the client potentially to claims by the lawyer or the former lawyer but that's not the issue befor e this court nor was it the issue before the district court the issue is the client must be permitted to live it to compromise fees if he feels it is in his interest and that is why there is a conflict created by a provision that allows the lawyer a veto power or that says we will share fees and therefore i the lawyer have a right to interfere with your efforts to settle it as you know that's this conflict your honor it is the lawyers the client's interest in being able to control settlement versus the lawyers interest in being paid has been resolved in favor of the client and why is that so here why was it necessary to strike the fee request cash of the consequences the breach but withdrawing that motion which would have allowed mr cash to make an informed decision about how to go forward he was pro perth at a time when certainly it's possible source of payment for attorney if the client must authorize and so the factual debate the factual controversy that the district court had to resolve based on the evidence submitted once had mr cash authorized the filing or not the court based on the evidence it reviewed determines that mr cash had not authorized now to mr and where is where is that language i read here night maybe it is maybe it is and the courts the court has the support the few application and the opposition so that it would be wrong to assume that even a significant or material part of that application would have been granted district court himself observed so i think i have a and informed speculation of the police court mr cash to answer your question just despised mr passions not appeal the sort he did appeal from the judgment he knows how to do that intervene but in terms of whose ox is gored by the ruling it is clearly the lawyer not the client i agree and so in that respect there is an injury to counsel but there is not an injury to mr cassatt there is no reason to speculate and certainly no reason on the record to speculate that mr cash could not negotiate on the basis of the fact that there was still attorney for a live billet depending on what the circuit might do with its practice whether it helped or hurt his settlement position he is the one who sense that it is a good minutely and somewhat unusual record that confronts the court and that confronted the district court who made a determination based on conflicting factual submissions at the time the application was there was a deadline under rule fifty four so close a lawyer and a client became but suppose a relationship to cherry rated immediately before the statute of limitations might expire on a matter and because of that deterioration the prejudice the client in my hypothetical of course not with the issue change however as to whether he did or did not file within the statutory period here likewise you have rule fifty four that imposes a deadline for filing is what the court in flannery said the client could do and did even if the place is a lawyer at a disadvantage but to respond to your bible crazy it is a resolution of it's one of those things that we as lawyers end up sometimes taking the short end of the stick because almost every policy in our profession favors the client over the lawyer and it is a simply another example of one of those where we have to strike a balance between competing interests we are going as a profession for the good of the profession we are going to favor the client even in those instances when it places the lawyer at a disadvantage if i may respond to your questions very quickly because that was when you raised your absolutely not there was a conflict miss wallace below told the contested by mr cash he said absolutely not mr cash told the court unequivocally without any contradiction at any point after the rule fifty four deadline or before that the first word kena gotten that there was this f occasion was when chevron served him with this office issue and then he said what is this an opposition to what so that was again conflicting evidence confronting the district court which the district court under rule fifty two had the right to only focus on the favorable you can't you cannot simply do that and say ok well there is no conflict no factual conflict for the trial court to determine there was a factual conflict he did determine it so it seems to me that again the question one of the key questions for this court is the standard of review and we submit that it is the clearly erroneous standard because the trial judge was whether there's an oral testimony or not doesn't matter to the rule is clear that the court's factual the terminations are subject to a clearly erroneous standard that not hanging over your head and he is affectively kept his feet in his lawless that forty percent of one hundred fifty thousand dollars because she's out of the picture at that point so now you are sitting here on appeal is two hundred fifty thousand dollar a warning if there is merit in that you're suggesting that mr cation is manifested by the fact that you don't have to pay the six hundred thousand so you have more money to vessel or veto power which is not permitted under california law unencumbered by that mr cash is free to negotiate a settlement of his appeal in which he says i believe i will when i believe it will come back to the district court i believe if it comes back to the district court  will face much greater exposure because frankly i was very dissatisfied with the performance of learned over one and a higher good counsel a second time or whatever else you have set and therefore i think i've got some settlement leverage against you then and the dispute between mr you're you're not willing to tell us this morning it's your we're going to go back and up the ante for them split the difference and give me every three hundred thousand that you're not going to have to pay for here for these i would be more than happy but i don't think i can properly discuss with the court the substance of the settlement discussions that have occurred but but i all i'm saying is it is not simply a one way  for perspective to understand that it is not simply a disadvantage to mr catch mr cash is the one who is complaining about the choke hold on his ability to conduct settlement and that is a crucial thing the law says talk show called may not  appealed disorder so to the extent that he or his current counsel perceived a disadvantage to him from the circumstances he had the opportunity to do that he was able to file the merits feel that merits appeal has we have you know about i'm mediations and we have i think the best and in the country we are fully aware of it and i should not go into further details but we are fully aware of it and you've been there that the district court made a finding that he never consented to them i use that were the only statement by the district court and worthy where the record different than it is and i might have some difficulties i might join you in that question but the fact is that there were copious filings by mr cash in which he had expressed strong objection to that the application being filed in which he which he said to the court the crucial point which is at the reviewed it to do so and i never did that indeed i never knew it was filed the fact that i asked of the rule fifty four deadline mr cash made statements is not enough to transmute known pro his prior objections at the critical time to the filing and you have to look at the statements in their context mr cash at the time he was submitting his statements that were more receptive to the ideas of these what he was  presenting the erroneous understanding to the district court thank you personally could share in those fees he cannot as a matter of law in the state of california do that only the lawyer can receive it there appears under the he granted consent or gave permission to the client and the court i think correctly acknowledged but there were statements by mr cash that kind of went both ways but the first thing out of the box when mr cash first heard there was a fee motion after chevron notified him of that fact by its opposition mr cash is first and the luminous statement to the court is no way i object i didn't authorize this that really is the beginning of the it's the focal point israel fifty four and it's federal just like the statue of limitations hypothetical the fact that mr cash later based on good advice bad advice for whatever thought that maybe he could participate and get the  he just graduated high school with us and that's i think that's a disservice and you can see from his filings that that's a disservice he has the right and the law doesn't say only people with college educations get to decide whether they're going to compromise fees bottom line of your argument you're making now the that you know it's cash went along with the application for attorneys and authorize among other things that the client cannot share in the field work and it says paying the proceeds of such an award to the party the client can share then why would they say the client's got to give its approval i mean that's just  use the term chokehold and say yes it's an equivalent over here find and if the law says mr cash wins that sample mr cashman disadvantage the lawyer the lawyer cannot disadvantage the client and indeed to the client and that is because of concerns about how the profession will be perceived and we're familiar with many different examples of this and frankly if i were voting i'd vote to do it just that way whether i'm whichever side of the issue i was on i think that's you've got to do it for the the law doesn't say that he has to make a sound judgement a lot as a mr cash has the power to make a judgment high school education or not but his call and the district court confronted with this record did not make clearer by ruling that mr cash but he should accept mr cash a statement that he had told the law or not to do but the lawyer later did and there's no way that you can allow a lawyer to sue to which the argument here is to file a fee application over the client's objection on the theory that somewhere down the road alarm the client might change his mind because if you think about this concept of retroactive approval what it would mean is the lawyer could maintain the choke calls and always justify defying the client's wishes by saying oh yeah but i know if i just have some time i can convince the client to do this and indeed for this court is a submission from mr cash which is part of the record in which he objected to the fact that disposition of this appeal why on earth was that request had been made to mr cash who promptly notified this court of that and his objection to the congress it's a good note and thank you thank you very much for the extra time i've it belong to the client authorization wasn't an issue apparently she had authorized the fee application we don't know it was an issue in planning flannery if anything stands for the proposition that as a matter of public policy in on his half interest one declaration lawless testified or stated that she contacted mr cash and he was aware of but that she asked him to be around for example what if she were had forgotten when a certain meeting was or something that she needed to put in her application she wanted him to be around also her time records which are part of the record in this case indicate that right around the time of the finding that the application or multiple conversations telephone conversations with mr cash obviously was talking about the patient even if we took mr cacheris position that he didn't know it was being filed when it was filed after it was filed in march of two thousand and two before the just record even ask for additional briefing he well be for answer that question directly it's important to note at the hearing if you look at the transcript of the hearing on the motion one of the first things mr cash says i need more time i need a lawyer this is over my head he says just on the record so clearly if he had had an attorney any attorney in her right mind given this particular to be agreement would have encouraged you changed my question i did i'm sorry my question was well what if mr cashman said i want to withdraw this motion after having been council and therefore violates or just serves the public policy underline the fair employment housing act the only winner in this in this arrangement is trevor on who most federal jury unanimously found liable for a raise around him and there's something when you step back from th in that pastor off the top of my head but i do know that in the negatives that the court held that there's nothing wrong with the attorney recovering greater a greater recovery than he would under her she under the contingency fee agreement but one thing about the any member of the bar it's also a case in which the issue was a again a way roe vs kind of case which this is not over and over and over mr cash has made it clear that he does not intend to waive fees he wants the fees to be awarded he wants the money to be