i just i'm being particularly attentive to speaking into the mike today since we have judge went on and i want to make sure he hears everything you have to say or we all have to say how am i doing you're doing great thank you and we'll start the clock trampled for over two hundred years and in this particular instance the doctrine is being challenged and i am appearing in it not just on behalf of my client yes in t school but do they can't the judgment that has been and entered against it but also to  explain to the court how this particular decision attacks the doctrine of and parry delectable so if we could go to the two thousand and nine now practice action was the is it true to characterize that action the focus of it and as one that focused on the fire line of the deeds and the coverup that followed with respect to the underlying transaction  focus on that but it also focused on other matters the so called malpractise classification that was  provided by the apple e in this case is really not at nap description there were four separate courses of action in that complaint one was for malpractise one was for violation of canons of ethics one was for breach of i do cherie duty and the other one was for breach of contract the contract was the contract of retainer between the breach the allegation of breach was in connection was it not with the filing of the deeds and the cover up i don't know if that if it was limited to that only discovery in the action would have if there if the testimony of if evidentiary testimony was taken in the new york proceeding and i could answer that question but it wasn't a the judge basically said in that case judge york said rather than deal with the multifarious issues that have been raised in this matter to doctrines will suffice to take care of not just the issues between the parties but dispose of the entire case and in coming to that conclusion judge york made reference to what the bankruptcy had acted with dishonesty and deceit and based upon deeds and the cover up that is correct is correct and that the court need not get into a factual analysis of it because the doctrine of a buried the looked which had been argued against my client in the state court action gets patrick argued that because they were in parried elector with my client my client couldn't recover and the state court agreed and dismissed the cause of action against my client basically saying that in the state of new york we do not open our doors to wrongdoers we leave you where you are we're not going to listen to argument over the proceeds of dishonesty we leave you where you are you know it was the decision in the state court matter and that decision was appealed to the appellate division and subsequently the where the where the bankruptcy court for recovery of the attorneys fees but what it did do is it opened its doors to this new theory called this aggregation which had never been part of the parent elect do in the two hundred years before in the two hundred years before and perry dellec to go was it was adoption very clearly stated if you were found to be a wrongdoer the court was closed to you it is not wasn't a limiting doctrine as the bankruptcy court has now said it was it has always been a complete bar in other words if you are engaged with another person if two more people or entities or decide that they want to do something that is illegal and or dishonest they do it at their peril and if they get caught the doors to the courthouse are close to them because they know they understand that if they're going to get caught that the door is going to be closed and if they want some type of reward they're not going to get it from the court the court's not going to preside over disputes between wrongdoers and that's what the bankruptcy court decided it would do i see avalanche lawyer ready argument made and you don't have to sit down you will thank you was there any argument made to the distance to the bankruptcy court and then by extension to the district court that this issue has already been decided it's raised you to counter oh absolutely absolutely but simon gets fitzpatrick we're the appellee the appellate the debtor doesn't really do a good job of explaining what happened here this was an arbitration matter that went on for close to two years and during that fitzpatrick under a valid lawful retainer agreement provided that are with not just legal services but excellent legal services gets what's patrick was successful in prosecuting this arbitration for the debtor in one the case the debtor was as static and as a result of that arbitration the debtor was the party that was to receive a five million dollars property and it was only after the entire prosecution of that case after arbitration hearings after the award was to be entered that a gets fitzpatrick attorney engaged in malpractise with the principals of the debtor to record the deed before there were security documents given for that record ation the bankruptcy court well lets the debtor filed a state court action during which it done at the end right after the arbitration award was under after the deed was recorded the debtor has been disingenuous throughout this case ok the district court and the bankruptcy court ball found that the  disingenuous to the point of frivolous the debtor admitted during the bankruptcy case that the debtor was only seeking to bar gets fitzpatrick's recovery of fees on and after the date that those dates were recorded the record is clear that three hundred and forty five different times during the case including in written responses to discovery the debtor agreed that gets  performance during the entire course of that arbitration is a basis for allowing the fees during that period it was only after the record ation of the deeds when there is no dispute that misconduct was conducted that the fees were not recovered so the bankruptcy court and the district court relying on both the doubters admissions and the empowered to lick their doctrine found that gets fitzpatrick was in fact entitled to fees now this nine sixty court of appeals new york court of appeals case the debtor relies on it's called mcconnell that holding was specifically limited to instances where the illegality was the dominant part of the have found here is just not the case this goes back to nine hundred and sixty and cases where the imperative act own doctrine has been followed by new york cases such as held in north by the southern district of new york in a case called image point they both found with that where there is a lawful agreement like a legal retainer agreement that legal retainer agreement is enforceable by its terms even if a party engaged in misconduct during the course of that performance as long as the party doesn't require that misconduct to collect on its fees in other words as long as it's not a basis for direct that it then mcconnell case is instruct your owners in that case there was a record producer in the record producer said to a rd party if you rd party can get this distributed by a national distributor i'll give you ten thousand dollars and the the rd party took that ten thousand dollars and used it to bribe a distributor and so the the production got me to and the rd party went back to the producer and said ok i did what you wanted pay me a separate fee that we agreed to a percentage of your profits and of course in that situation empowered alecto did bar that rd party from going to court because the entire performance of the contract was illegal the bribe was a distinct part of the direct part the entire part of how they were to get paid so here gets fitzpatrick performed for years in a good way the de fee should be awarded under an perry looked at that was the issue that was up before the appellate division declined to be reviewed by the court of appeals and now your honor in fact the issue in the state court proceeding was that the entire complaint filed by the debtor against gets its patrick breach of private practice was entirely limited to that recording of the deed as your honour's and the cover up and the cover up but this was all after the recording of the deed the joint cover up after thank you thank you can you actually let me ask you is this is the law in your view and i'm going to ask m dr no the same thing as the law your view clear enough in the state of new york that we should not think about asking the certify news to the new york court of appeals that's a great question and the answer is certification is not necessary for a number of reasons the st reason is that the debtors question that they seek certification on is based on a false promise the false promise is that gets fitzpatrick argued in state court as stops from may seeking a recovery for its legal fees in the bankruptcy court as to that same retainer agreement but that argument wasn't made in the bankruptcy court so the district court found that that argument was waived so this there's copious law that says when an argument is promised is based on a false premise or when an argument was waived below a party cannot seek certification even if the debtor can overcome those two court one thing and now in the bankruptcy court it argued something else but that's not what happened what happened in state court is gets fitzpatrick argued that the recording of the deeds and the subsequent coverup were joint contract conduct inconsistency between saying we're not talking about that joint conduct for the recording of the deeds and afterwards all we're talking about in vikram secord is the proper conduct the successful conduct in the  pursuant to a lawful and valid retainer agreement for years of legal fees and i should say that the district court was troubled by the idea of the debtor expanding this in part alecto doctrine under mcconnell the court of appeals decision however situations like this one where professionals provide services for an extended period of time but are foreclosed from recovering from those services based on a single instance of mixed misconduct at the end of the relationship  i think that my adversary just misstated something to you he said it's the debtor that relies on the connell decision and it's not that was brought up by the a and it was brought up for the reason there's dicta in that decision that basically said that it's not every wrong doing that results in perry delectable and the thrust of his argument read the won the case but the truth of the matter is they didn't win the case just told you that they won the case but they did it because there was a quid pro quo and the quid pro quo was that the deeds would be filed simultaneously with the mortgage they were not by filing the deeds of record title without filing the mortgage they misrepresented the the situation of the properties to the world couldn't solve without that mortgage could have been re without that mortgage so where records are shape now when they settle the case they rectified all of the things that they did wrong and the reason they the reason gets fitzpatrick recommended the filing of the bankruptcy was to freeze their wrongdoing in place so that it couldn't be undone because the and please keep in mind that the missed the misrepresentations here or the failure to speak when they had a duty to speak who was aimed at the court the arbitrator was the court in this case this our case is not a case where in perry the licht relates to a business situation the misrepresentations were made to the court and so it was not in oculus it was not an we had been arguing from the very beginning that in as much as the state court found that the parties were in perry delectable and that the matter had been appealed to the highest court of the state time honored in the state of new york that doctrine says once you found to be in perry to look though you're done you don't get your day in court you don't elicit facts under the decision as forth with the bankruptcy court it actually incentivizes wrongdoing and there in other words we can do good things and then at the end when it's necessary we can work way reskin reward we can do a pat thing but if we do that bad thing we're not going to be penalized because we can collect all the good to something sorry our courts are close to you thank you thank you both will reserve decision in this matter