today we have just two cases a and that justice hall will not be here but she will participate in the decision making process if she will listen to the ok with the lawyers lisa approached the bench not there should be insurance coverage or not in the opinion there are so forth the facts in this case but just but by way of brief background mr greenfield prepared estate planning documents first clients over the years for leonard and murray oh and what's become an issue now and the subject of the malpractise case that has been brought by the beneficiaries certain beneficiaries and not all of the beneficiaries is the last estate plan they did it for  forth as to why or why not there should be damages and why summary judgment should or should not be granted but that's not what's at issue what became an issue was during the course of mr greenfields deposition we when the j p morgan people on we after we objected as you can tell there were a number of orders that were entered by judge don't can bryce where she was trying to work around our action of earth least in order to reverse herself as it related to the direct communications with the clients leonard and murray oh and over ruled our objection as it related to j p morgan and that's why we're here and i think that the and judge duncan price on a number of occasions and she tried to work around it with judge mira's finally i did on march second he issued the order in fining us one hundred dollars in order that he could appeal and as far as i see then the only issue is is there some reason compelling reason why the communications between mr greenfield and j p morgan that involved the client should somehow fall outside the protection of the one point six that the brief search might be but you know what's missing is there's no case that sad as that stands for the proposition that the communications by the lawyers and in agent in this instance  morgan bank in the individual for work for the pay should fall outside the role one point six and it there's nothing to say but doesn't matter when these communications took place it does and what it would have to be before that so that we it's our position and that all the communications prior to that of murray all would be protected if just as if they obviously and buyout communications involving attorney client issues owe with help those documents are really communications before her death we did note that it was in a reply mistakenly there were a couple of documents that were after the that that the painting documents that we think should be produced but they've already been produced by j p morgan and i don't think that's an issue we're not hearing me ask you two questions in two different areas just you tell us now the  it's one of the questions i have to say because it's a question i asked myself when we were going through the briefing justice and i had a response i thought it was too cold so i have a prepared response in the letter that you wrote to the beneficiaries where he said there was a scrivener's error it's always been my position that the beneficiaries of the state are not the actual clients or third party beneficiaries under the ol and the hell him versus gratian holdings so that the supreme court in those cases was very clear to say that the client still remains as the people who had his state plan the beneficiaries by virtue of their statuses and of fisheries have a third party status so in viewing it in that context i don't think that that letter has any effect myriad yes absolutely i don't think those that are after death would be covered and he more because then it would be the estate and i think in that circumstance if mr greenfield is representing the estate then wants to weigh all the privilege not under hit she can't that the court addressed that and said you can't step into the shoes and wait for the communications that occurred pre death but anything that occurred after death regarding the estate tween mr greenfield and the trustee or executor i believe she could waive ok so that's stuff that's cut off well it's greenfield the holder of the attorney great marriage a decker yes and also center partners yes and you're still telling me that the attorney is those is the holder of the attorney client group i'm not saying hold on to say be a reasonable law i mean if there was a you know if we would hold such a thing with that be a reasonable holding i think in order to protect the privilege yes and it's a balancing balancing it what point do we say it is or isn't protected at one point is the attorney in a position that he or she can waive or not weigh well a and in remarriage a decker in the illinois supreme court seem to think otherwise in that case that arose out of the litigation context whereas here it doesn't i mean here it's a state leaning text while i understand that but the question is the supreme that status alone waived the privilege for communications after that and i don't think so i think it's the estate in that instance that would help the the right there was just a very interesting concession right now for the first time we're hearing that mr greenfield is willing to discuss his communications with j p morgan personnel after the death of mrs perry she spent a dozen pages and  three discussing the type of questions that we wanted to find out because the exact thing that happened here was that she j p morgan had a communication with mr greenfield to advice and that they could not execute on the detail estate plan that had put in place he was called upon to provide an explanation he has a series of communications with j p morgan as to why it is that they're not able to do their job under the trust the green and it with the june seventeenth two thousand and eight letter to the beneficiaries and note that june seventeenth two thousand a letter under the deluca holding was supposed to be truthful was supposed to give an accurate explanation as to why if my clients are not going to receive eight hundred sixty three thousand then all a sudden it comes to you if they're reading off the case law that the other guy is right you know if that's what happens none of us know everything it's asserted it's certainly an interesting concession and today's date is particularly fitting because there is the five year anniversary of the death muriel perry when she passed away she had what she thought i'm sure it was a detailed estate plan that called for distribution of specific amounts of money after she passed away j p morgan was unable to execute on that detailed estate plan they spoke with mr greenfield greenfield was called on in his fiduciary capacity to provide a truthful explanation as well  the facts you're hoping this week we've been around and around on this case so i'm sure they're quite aware of the facts but he promised cooperate fully and pay homage to the memory of miriam leonard perry within cannot able were not able to amicable resolution with him prior to filing suit so it forces the the beneficiaries to initiate litigation we initiated litigation and the first thing he does is deny any liability denies proximate cause denies that muriel to what happened and he went forward in his letter and he said i did not include a powerful point in the year two thousand and eight will that had existed in the year two thousand and seven well and he said as a result of that omission beneficiaries and in this case my clients aren't going to receive as much money as muriel wanted them to have and he promised to cooperate fully that cooperation never materialized within issued rule to sixteen requests to admit we've got a serious but jackson's we had on judge duncan price overruled all of their objections deemed all of the requested mit at mit have a key issue here the o that you should be arguing is whether the communication between greenfield and j p morgan that occurred prior to that trust during the lifetime of muriel carey she was the sole beneficiary and indeed it would have a relationship with her that j p morgan's comments with miriam carey might be privileged after muriel perry passes away the co trustee is one of my clients in this situation now what we sought was communications that mr greenfield had with j p morgan about mr greenfield conduct and we first admitted that the there is no attorney client relationship as between mr greenfield and j p morgan one of the reasons we know this is the case is because cheapie morgan has not one but two sets of other attorneys with whom it's enjoying those confidential communications it had unifications with holland at night as well as its own in house counsel so from the first instance we said there is no attorney client privilege when become embarrassing to her assistant suggested by the older one point six this is about mr greenfields conduct and we respect this myth that there is no attorney client privilege but even if there had been it's issue is mr greenfields conduct what he said he had an obligation to give a truthful explanation he's since come into this litigation and found a motion for summary judgment which said all the stuff i told the beneficiary presumably true under the glue clients to invoke and in this situation we're now in litigation and the trustee of the a stake is one of the plaintiffs who's asking for disclosure there has never been an invocation by the client of the attorney client privilege that was done for purposes of our argument that there's been proper and vocation of the attorney client privilege and our situation we first have judge duncan bryce's multiple court ruling saying there is no privilege and in that situation under this court's case law it's the should be overruled or multiple orders should be overruled if the court were inclined to find that there was an attorney client privilege then we part second argument is that it is at issue and is therefore weighed mr greenfield has one thing in files a motion for summary judgment or says what i told you before isn't right i have a different reason and when i start asking about that different reason why is it that you drafted a provision that would only allow money to go to people you know don't exist lineal descendant his attorney objects this immaterial so when we go in front junction judge duncan price we have a multitude of judge objections it's not just the j p morgan attorney client issue and for that reason the standard of review here is mixed because as to certain of judge duncan bryce's rulings it's for subject to an abuse of discretion or example as it truly is the issue of why he drafted the documents the way he drafted the documents and legal malpractise action involving his drafting of documents in material that would be abuse of discretion as to the question of wall as to the application of the attorney client privilege or an issue exception that would be reviewed to know so we have a wad of issues here and it starts with a january seventh two thousand and eleven order that's the first order and on this point i'd like to know something to the court not rights did the plaintiffs seek to have disclosed communications  letter or muriel perry with mr greenfield it wasn't asked that the deposition it wasn't advocated in a motion to compel it was not ruled upon by judge duncan price first represents patient was made here in the nature of the case as well as an a argument was that somehow under one point six the plaintiffs were heard charging trying to discover surely attorney client the acacias clean perry said mr greenfield that's not true he refused to comply with the january seventh order actually they were going to comply they were on their way over to my office with a box of documents when i got to the last moment he says well we're not going to do it after all so we follow the second motion for sanctions will tonight can sing sanctions and mr greenfield and we know how the world with that we've never sought that what we're seeking her communications with third parties one of which is j p morgan personnel who had their own counsel there was a representation that she reversed herself no she never did she never reversed herself at all there was a representation that the defendants asked for contempt citation that we should be put in the record they never asked for for judge maris we pointed out that there were about four or five orders that came before they finally said we're not going to do it we're not going to comply hold us in contempt if you have to and judge  a party multiple opportunities to come into compliance that party refused time and time again in this situation we have four or five court orders over eight months you know how you tell me this is not a friendly contempt and we should hold the party a contempt hearing person in front of mr kind of sec is a great guy i just don't believe that friendly contempt has any application in a situation where you have noncompliance with four five court orders now the fact that it why hold anyone in contempt if they're trying to appeal something again tain rule well the jurisprudence advice is that in this type of situation the party that's with holding information ho argument that the trial court when hearing a motion for sanctions due to violation of court orders or rules must somehow be limited to consideration considering only the particular violation then before the way the parties manage a lawsuit constitutes a cumulative enterprise and we will not impose blinders on trial courts as they exercised her discretion in this important area a trial court can and should consider past violations explanations court responses and essentially the entire history of the particular litigation before it when deciding what action to take under supreme court rule tonight team it should be too obvious to state that if you have plaintiff's argument we will state it anyway the same violation that here result that appropriately in dismissal with prejudice because the plaintiff counsel's history of a regis lee disregarding court orders and rules might in a case without such a history result in only minimal sanctions what we endeavor to do is show that from the beginning from the pleading face there has been a conscious effort to deny these beneficiaries their day in court there's been a constant refusal to answer questions into sixteen's and discovery and the like and then there was noncompliance with multiple orders and as a result the relief that we requested was the striking of their pleadings and the entry of it before judgment and what we've asked this court to do is under its power under rule three sixty six was to enter the just order it's been five years mr  burden of proof or persuasion that the privilege which is supposed to conform within its narrowest possible limits here is either properly invoked or not at issue mr greenfields placed it at issue by changing his legal positions we supplied the court the record on that argument and it's clear that it was a friendly intent that when i had to find a liberal in the condemnation is in order for us to have the right to appeal that we've done if she doesn't twenty eighth order of judge duncan brice which doesn't involve any of the other history in this case of this coverage she's raised it's not part of the record and it's not at issue so we're clear on whether or not the communications between mr greenfield and j p morgan prior to the death are privileged get judged by justice can i want to go back to decker and i felt inadequate so i went and pulled the case right off the table there in my response  you and back her the the trial court found that the privilege did not apply the evidence reprove which of attorney client because there was the crime fraud exception so the court ma finding saying in light of the crime fraud exception there is no privilege that the privilege does not exist so justice when the attorney asserted the privilege there wasn't a cripple by virtue of the finding of the trial court which was alternately our help all by the supreme court in the supreme court in its decision made that point that the attorney wasn't asserting a privilege because the court found wants to divulge your client's information they can say wow i'm going to put it at issue that that would completely annihilate the the privilege and it would and i laid any protection contempt yes counsel just argued there actually on their client is the denied access to documents and communications in that it's been an ongoing oh deliberate i think in that the transcript before judge maris little show and the orders that were entered you'll see in the orders were judge duncan brice would enter an order saying produce we would say we have  at one point she and she did i mean the order itself grants our motion to reconsider or she said produce everything on march ninth two thousand and eleven she grants our motion and  says ok we don't have to produce as to the communications directly with ariel and when or so it was it wasn't like that at all on the record will bear that out we you know that george case look we showed up to court every