your honor your honors the bankruptcy courts application of the martin case is simply wrong it's not what fart and says there's no authority in this district in this circuit saying finds in the crown vantage case in the court held that martin protected folks not certain folks and that those folks can still be sued after the court balances the interests of all the parties involved and here there was no balancing of full excess interests his rights were simply swept away by a misapplication in my view of the barton decision and an incomplete wrapped together universally as i understand it and the sense that i miss at that number is really doubting that if he had just sued about pre partition now practice that would be one story it seems to me though that in the process of utilizing barton for per of for purposes of coming to a conclusion about how the case should be handled that the court threw the baby out with the bath water  court on several occasions and several of his decisions and i'm referring to the bankruptcy court was able to point to activity that was definitely pre bankruptcy and and indicate that that could be the basis on which activity do you assert is just nothing but pre petition your honor not not at all oh in any way connected to the bankruptcy as the bankruptcy complaint though it all comes full circle to the to the what happens at the at the at the bankruptcy proceeding and your honor i think logically it did because for them well how can you say how can you limited just pre partition well th acts giving rise to the towards you know it it's just like if i suppose if you run a red light until you're stopped and taken is it in fashion do you know that there's an infraction until somebody brings if your attention in this case there was really no harm no foul until the bankruptcy was filed and mr kwikset was looking down the barrel of a forty million dollar judgment for his involvement viz a viz the credit suisse loan now the credit suisse loan took place back in zero five zero six and mr blix south was involved in that based upon advice which he was specifically given by mr brown did if there hadn't been a bankruptcy proceeding would mr blix that have a cause of action for malpractise against mr proper i think saw on what basis well  assuming there was no bankruptcy but it's some point somebody said you can't use that money for these purposes you've got to retain monies for the ongoing nature and business of the elephant club that at that point in time  there may be it may have brought been brought to his attention that there might be a problem with the way he had been using the funds from the credit suisse loans and that's that's an interesting facet and i think that's something that that judge pers specifically recognized in some of his earlier decisions he said the cornerstone of this loan product was that it allowed preferred resort owners such as look south to capitalize on the value of their assets now if you were advised that that's fine that that's acceptable it's something you can do it's permissible and looks at did it and nobody took issue with that then probably we wouldn't be here there there wouldn't be a claim because there would be no harm no foul as it were but the fact is is that subsequently blix that was advice subsequently various predators took the position that that was not something that he could do and he had been improperly may well have been issues cropping up as a result of all that irrespective of the route that it did take which was bankruptcy and what is the specific advice of he complains about well the various releases and so forth and it ended up argument about improper allocations of assets and and the tax nature of the allocation of assets and so forth now so when i  litigation that seemed to stand on its own i think it i think it was a month filed suit to get his share of the distribution mr brown represented didn't mr brown represent blixseth in that litigation and in the it in the allegations in the complaint if i remember correctly it's that looks if alleges that brown didn't advise him that he had that this should have been brought as a derivative claim i think i think that's the thing that different ball total of you know right but isn't that so the allegation is it was malpractise not to advise him of the i think because they all seem to come together once the bankruptcy is is underway i agree i think there are also available instances of several acts of legal malpractise not particularly at all think yeah i think what he did on three pages was he presented the table outlining this is what our pre partition complaint against brown is all about and that's that said pages your five ninety five through ninety five ninety seven and i think i think counsel who put that document together did a good job trying to differentiate and and delineate previously crown vantage says that you have to look at the claims whether the client claims pertained to actions of the trustee while administering the estate that is the trustees work on the estate becomes action which determines whether there can be a claim or whether there is a claim which can be brought and we're not saying that anything there are allegations of conflict of interest and if you can see in the beyond that we're not alleging that there was a specific act done and as a a trustee or as somebody designated by the bankruptcy trustees office he wasn't appointed he wasn't sitting on any any committee specially designated by the court and were not alleging that there was any act in an official capacity that might provide barking relief there the another officer however crown advantage is effectively says that barton doctrine applies to not only the trustees but other officers appointed by the bankruptcy court and his judgment lawyer indicated but not even not even the  why we should follow the six well one very well because the acts when you look at the complaint that they presented to judge cursor in the bankruptcy court were specifically about mr brown's alleged conduct which precipitated the bankruptcy hypothetically would that be ok no but it is because judge cursors already addressed those issues when you read what judge curser wrote and in the documents we cited when they argued about the credit suisse won't judge a person look at what's the brown's role was on the credit suisse p fourteen they put on evidence mr blix of put on evidence and judge curser looked at it and said steve brown did not give advice to you mr blix of the on the credit suisse on your allegations about that don't have any merit your only role in the credit suisse loan was to to answer every single allegation made against steve brown this because if you still haven't i'm still waiting for you to answer judge kozinski question on why barton doctrine should apply u c c members yes because as a number of courts have held they are approved wh what's what just what what is the fundamental principle at stake the fundamental principle is you'll never get anybody to serve on one of these committees and absent their being approved by the bankruptcy court and so i never had the experience of practicing but working as a bankruptcy judges don't do it for four months judge kozinski did but my understanding was that they is that the my limited understanding is that the end secured creditors committee is sort of a five by statute its authority comes from us there's a statute that authorizes unsecured creditors committee is that right it's authorized by statute but it has and it has certain duties but then it's approved by the bankruptcy court and what where how where where and how is it approved by the is there some who filed the petition that says bankruptcy court approved this make up of this creditors committee how does that happen the bankruptcy you are correct that the u c c was set up by statute and they were appointed by the largest creditors and then alternately once they were appoint once that was appointed judge curser the bankruptcy court judge approves the this particular case took on a greater role that they did they were he first the judge charged him with the responsibility of determining whether litigation with appropriate that is correct they did they followed a motion judge carcer proved that they could that right there is now or the court appointing the bankruptcy court appointed to maybe or approving the membership saying these are the names and i proved there's nothing like there's no order saying this is the extent you said something different  mr brown did not participate in decisions concerning mr looks mr brown's duty of loyalty was addressed that you know what i don't have you know i'm saying that if the judge it knowing this connection had made the appointment it would be one thing but that's not what happened here the judge did not enter the order appointments for anything else there's not a separate order and there's an order of proving their actions let me ask you a is not a stated claim just because you say somebody committed malpractise doesn't mean you stated a claim you have to have the facts to back up that claim and in this case he didn't have the facts the advice was not given that they claim they had a hearing on it it was determined they did not give the advice they claimed was given his role was different on the credit suisse along different on the marriage settlement agreement release on the marriage settlement agreement we have that you had a complaint with this is what we're trying to get you to focus on th in this case i complained he says that's not what happened in the complaint if the cakes go as far as you can read but that's not the question right and when you look at the complaint and you read it in total all of the alleged acts are tied to what mr brown supposedly did in bankruptcy court by reneging on it on the advice that's why i asked you the question let's say he was not on the committee if he was not on the committee you know there was no duty and freshmen transfer and he ended up with a huge judgment against mr place of all because of mr bradley and let's assume mr brown was not on the committee is there anything about that complaint and wasn't in the complaint that he was on the committee is writing about that complain what about your stone problem or what about your stone problem the stun problem that i believe is where the phrases judge cursor didn't have the authority to enter a final order in this case and it doesn't make any difference because ok ok thank you thank you  here there there isn't any why was i judicial function served by mr brown indeed what's it's really curious to me and again i was haven't been involved in the in the other bankruptcy  process easier but what's interesting to me is that you have an attorney who tells other folks wondering about his potential conflict situation that quote i know better than almost any anyone so what had he was wearing when he learned whatever he learned we don't know but i think your honest questions about let's assume that he wasn't on the committee is is a perfect and i i sense from the response that's been given is that the malpractise case would have been able to proceed thus we're in a situation where because of an interpretation and application of barton which i think is wrong we're precluded from doing anything about the actual missions committed by mr brown pre partition for that matter post petition and i think that's wrong now does it make any difference you know and barton that the district that the bankruptcy judge sort of approved and commissioned almost that unsecured creditors committee to look at you know going after assets i don't know that the bankruptcy judge commission well i mean the authority to sort of pursue litigation on behalf of the estate i don't know the answer this with the answer to that i presume that they could seek leave to do that but i don't think there's any statute or any bankruptcy rule that that entitles them of their own accord to initiate litigation but does it make a difference that they're working on behalf of the the state i don't know that they're working on behalf of the estate i heard that allegation of mine is that i think they're working on behalf of the unsecured creditors y the state expenses come first so by helping to enhance the estate the unsecure kind of as a helping themselves but i'm sure it's a matter perspective and that can got a problem with one of the folks on the committee and would have some contact with us trustees office about doing something about that issue that's my understanding of the bankruptcy judges applies and we really the policy applies and we ought to extend it if necessary to apply to the kind of committee because this is a fashion to a committee that helps the court function it's a little doing these functions which are necessary for the court to complete this process and if people can just sue them without permission of the court they could get bogged down in th be able to sue the fia with a new strain of the state there's something to that argument much like i think there is i would concede that there is judge on the other hand you know i don't think mr brown  committee would necessarily in fact your complaint in this case but why would why should be the bond off of the whole policy of it be that if you are performing functions as a member of a crevasse committee or as a trustee you are so key coggan the machinery of the ministry of the state and people shouldn't sue you for that conduct without permission of the judge so make the amended complaint that you know we filed the amended complaint and it was presumed the nation made that this and that a department applies and b that applying the applicable factors you should be allowed to go forward with united states treasury the trust she has responsibility for that task since the united states trustees appointments are subject to the bankruptcy courts approval committee members are functionally equivalent to a court appointed officers now that seems completely contrary to what we were he's wrong i think judge malloy is technically wrong on that point we state it on classmates i don't think he was he was right on that this this committee and none of the people on the committee were specifically