discourse held that the conflict in this case was an attorney created conflict was not a conflict that was inherent in nature of class actions it was a conflict that was created by the intentional conduct of the settling plaintiff counsel by creating an incentive award not only in creating an incentive award but then that was conditional but then bludgeoning the white plaintiffs in an attempt to coerce them to agree to the settlement if they did not agree to rodriguez suit two and a whole series of cases in fact there is not a single case there is not a single case where an attorney creates a conflict that violates three dash three one one that he can remain in the case and not be disqualified the only exceptions are where it's in a totally inadvertent creation and where the counsel immediately eliminates it or where for example to corporations or merge thereby creating a technical conflict they can cite not a single case in which they can they can show that the conflict that's created here can continue and they can say that they can cause this conflict and in remain in the case and number three the district court  knowledge to all this law that said i don't have to follow it because first this was a technical violation radcliff one clearly says it was not a technical violation and number two the trial court said the said the settling by one judge i did see the two other judges joined if you just had one more vote and you might be home free here well frankly your honor the issue of disqualification was not before the court and it's gone and it wasn't decided right clip one was and i think the findings of radcliff dictate disqualification because i callate i think my question was whether radcliffe one itself dictates and i think the findings dictate the result i don't think the holding does because the holding that was technically before the court was the only issue that was before the court was the district court had certified a settlement certified a class and appointed them as class council and that was all that was reversed because of the could because of and only because of this conflict so so we have the do we have the holding in radcliff one but judge carter says well these people this was inadvertent first of all it doesn't matter whether the attorney is pure of heart or innocent if the attorney causes a conflict would have a technical conflict like an agent orange or lazy oil but a conflict created by counsel california's clear you must be disqualified but more importantly they were not pure of heart it was not inadvertent it was entirely intentional in fact the court radcliffe one made the factual findings they made the finding that not only did they intentionally write it into the settlement agreement but they used they used it by going to the white plaintiffs and saying you will lose your five thousand dollars if you do not agree that settlement and when that wasn't affected one of the attorneys actually got on the phone to one of the white plaintiffs and said i hate to see you lose your five thousand dollars you're going to lose your five thousand dollars if you don't agree to the settlement now whether they thought that was right or wrong or illegal or legal or illegal doesn't matter but i think as experience class canceled they had to know that that was peyton the improper conduct and they were disqualified under california law that's the end of the case that's really dictates what should happen now the the california law as i say is unequivocal the clear the the the settling counsel seek to get shelter under the agent orange and lazy and rules that were written outside of the class action context agent orange for example people they represent as class representatives are now objectors and the court said well that's tech that that in a normal context would be a conflict it's not a conflict here because of the nature of class action so we don't apply apply the rule reflexive and that's the same is lazy oil is exactly the same and the school ours exactly the same none of those cases are this case why do we know that because in rodrigues this court said this court specifically addressed the agent orange line to cases in rodriguez which dealt with an illegal conditional incentive award and said that's not this case we r an orange that's not this case this case is different because the lawyers created a conflict they did this was an inevitable conflict this was a conflict the lawyers knowingly created and put into the case they are no longer adequate counsel in this case rodriguez's on all fours with this case again they created the incentive award and incidentally they created the incentive award as judge hadn't found for one reason because the white plain the way of their getting a settlement and millions tens of millions of dollars in fees and the white plaintiffs who are class representative said this is not a good settlement so they were desperate to convince the white no clients they wanted to stay in his class counts they had no clients every single one of the white plaintiffs to a person said not only did they say we don't approve this settlement we wrote a letter saying we demand you to stop representing us and representing that there's a settlement here because we are your client and we have objected to decide alone so when they got the letters what did successfully counsel do well let me let me go but actually let me go back to the beginning the second the date one day  settlement february fifth day one settling council write a letter to the white plain of saying we have a great deal i know that would jump he can walk oppose it that this is a great deal and you're going to get five thousand dollars march twenty three they write a letter to wolf and john tikrit and they say your people continue to oppose this they can be replaced if they continue to oppose this without hearing all the arguments they can be replaced we can get other class representatives on april ninth the white plainest write their letter and they say we oppose this we don't know if we don't agree for settlement so then there's a meeting on april sixteenth at which settling counsel sit down with the white plaintiff and say not only is this a good settlement but you're going to get five thousand dollars and we can't see any way for you to get five thousand dollars if you don't agree to this but then they don't stop there seven days later mr two of the settling class picks up the phone and calls mr lovell and says we would hate to see you lose your five thousand dollars if you do not settle the case if i may read from the record on april twenty three michael toups called me to ask me if i would change my mind about the settlement i replied that i could not support the settlement the way it is now he said he did not want me to quote jeopardize the five thousand dollars i would receive if the settlement was approved close quote he further stated that if i do not change my mind quote or my name would be taken off as a principal close quote and i would quote be entitled would not be entitled to anything he said already three people were against the settlement out of the twelve players that was the conversation was but the conflict were attorney created that the trial court was obligated to grant the motion for disqualification true correct so then the agreed distance of it really i mean get to agree just aren't we have balancing of interests that's my question i agree writer and as i said as i said in the beginning the case law is clear that it doesn't matter whether they're pure of heart or they had the improper motive that they did i raise the egregiousness because we have this inexplicable discussion by judge carter in his opinion where he goes on to make several proport of findings where he says there was no breach of the duty of loyalty se so so he he may have been right in his factual findings on this point and he may have been wrong but but that's an issue is not before us that i totally agree but if you're right if i of chance this court would adopt the logic objected judge carter judge carter incidentally says california law governs notice view california law requires disqualification no dispute if this were a class action they would be disqualified automatically no dispute but in california was a class action and there's a conflict there's a balancing test with all this wrong as a matter of law he's wrong and the cases he doesn't all the cases he cites none of them are three dash three one zero cases he cites cases where the other violations of the duty of ethics or and he cites cases like agent orange and lazy oil which say where an application of the conflict rules to class actions creates an inevitable conflict were more were much more flexible and again that's not this case yet so yes i agree with you on are wrong test and the egregiousness of the conduct is irrelevant but even if you were to say well we should use a balancing test the avenues that evidence is undisputed it was an intentional act on their part to bribe and i use the word advisedly to bribe the white plaintiffs to coerce them into agreeing to the settlement now i see that my action lawyers where there's a clear conflict conflict where the court applied a balancing test is completely untrue because the case is in our brief we didn't make as much of it as we should i think we should have looking back and rereading it but if you look at the linney versus cellular alaska case this court held that even where there is a clear conflict of interest by class counsel that is intentional that that in a class action is a very serious conflict that there is no per se disqualification rule but instead the case should go to the trial court for discretionary findings now in that case what happened was to price action lawyers bring a case out at the outset against a cell phone company and they enter into a proposed settlement pretty much at the same time that they filed a complaint at the same they entered into an agreement whereby they were going to monitor how the settlement worked and they were going to be paid by the defendant so they were agents paid agents of the defendant in that case and so does that was the district they reached a settlement submitted to the district court and th report struck down the settlement and there is a clear intentional conflict of interest it's very serious then new counsel were brought in but those counsel continued on and were treated as class counsel by the court in its final order in the case and a second settlement was reached it was better to new firms joined one of them was in fact on my co counsel leave grazer the objectors came in and they are to attempt to block the second settlement and they argue that the council the original council tainted the whole action and that they had to be disqualified and the this governs this case there is no per se rule that the continued participation by previous class council whose conflict of interest led the court previously to deny class certification constitutes an adequate representation under rule twenty three partnership so it's possible it's from it's from alaska i would suggest rather that to the extent that there is a conflict between california ethics rules and rule twenty three that rule twenty three would actually govern i think that there's a there's a series of cases that  found that the rambert of months anto is the first case like that but there are several other cases that we've cited in our briefs and judge parker cited it also in the rodriguez to opinion this court noted that even if california law governs with respect to what is or is not a conflict that what sanctions result from that are a matter of federal law and that was in rodriguez too and the reason is is that if what california law was going to do was to be such a blunt instrument the california law would require automatic disqualification even where it was harmful to the class it would run counter to the basic rule of a basic i prince will you hand rule twenty three which is that you are supposed to try and be protecting the interests of the class members and so for example in this case judge carter made a series of factual findings they surprise numerous observations of counsel to go back over go back to the year two thousand and five where there had been dozens of hearings in front of the court records the normal amount of evidence in front of it and the court specifically found that if you were to automatically disqualify the settling counsel here that that would seriously compromise the interests of the class that that would be bad for the class was a series of factual findings which court's deference and respect and so if what california law were to do or be or to be in impose an automatic disqualification rule that would actually be harmful to the classes interests that's what cases like lazy oil and so forth are about the idea that rule twenty three is that since a principle idea is protected class that having a state ethics rule that would that would that that so store milicic that it doesn't take into account well the special qualities of class is harmful and the rand was months into the first case like that but there's a series maybe six or seven fertile i think from four different circuits that have found that but also in lenny itself this court rejected a per se disqualification rule and it was talking about it in terms of citing class action principles and looking at rule twenty three a adequacy representation requirement it's also important to note that this found that not disqualifying the counsel but letting to put earlier counsel who had the conflict where they actually had to deal with the defendant remain in the cape had been valuable for the class advance a class interest i quote from the decision the continued involvement of previous counsel can be highly beneficial to the class and the court looked at this from an abuse of discretion standard from the district court so in looking at what the district court had done in the leni case this court didn't step back and look at it a new  to reverse in radcliff one the issue of disqualification was raised if you look at the white objectors briefs on page thirty two and thirty three be argued that the sanction for the ethical violations they identify was per se or automatic case they are gone so this court your opponent your opponent so the redcliffe one the findings of redclyffe one compelled the result here i take it you're arguing that actually the result compel the finding that there is no per se disqualification no because if we had been prepared to find that before who would have said so it was yes exactly because this court if this court was going to have agreed that that there should have been automatic disqualification then the then the instructions that they gave judge carter on remand don't make very much sense and weren't terribly fair to the district court because this court ordered henri me and for judge harder to look at such issues as when did the conflict arise when did the conflict and what were some of the other factors that go to it all those are the sorts of factors that you apply not when you have a per se rule or an automatic disqualification but instead when you're going to be applying a balancing test so on remey and first judge carter had everyone young together and had a date a sense of hearing in which he set out what the courts concerns war and what issues he wan breit then both parties came in with extensive additional factual evidence or a raft of additional declarations than the present was a full all day hearing which the court listened to discussion going back and forth now to the extent that what council wants to do is to try and get around factual findings they have essentially first they've attacked the district court's integrity if you look at the last page of their reply brief they said that the district court's decision is just so clearly wrong it raises the question of whether judge carter was partisan and the only grounds for choosing the district court's integrity is essential if he disagreed with them and ruled against them and there's nothing that the district where did that they point to other than rule against them to attack its integrity but if this court's going to respect the district court fact finding about something such as motives something such as intent which are classic issues a fact that are appropriate for the district court and it's observed to respect and in rodrigues to this court in setting out the standard of review specifically said that the only way in which  an order to look at these issues well this is the first of the question i was asking your opponent and that is then even if we polled all the district court's findings regarding motive and so forth if there's a per se disqualification rule you lose right that's right so that's really least i was one to handle number one that's all i care about really is that the right rule ok so i can pop back the leni case for a second because this court specifically said there is no per se disqualification even where you had a conflict  that this court were to find that there was an automatic disqualification rule and that's what you all felt what you would need to do would be to certify it to the full ninth circuit for online treatment because you would essentially be overturning the leni case which says there's no per se disqualification assuming it was a california case because the and because an infinite california was not perfect we're not today we're not in a position to make a rule for the circuit we're required to guess what we think the highest court of california would do if presented with the opportunity right now your honor i state strongly disagree i think that in this area there are a series of cases that have found that rule twenty three would preempt and override a rule or rule of say that  rodrigues to it's absolutely a clear statement of this this issue is whether this is alaska california or any other state in the circus the issue before this court is there are automatic disqualification where there is a conflict it's an issue of federal law well i understand the district court who has been considering particular factors relating to rule twenty three in federal class action so the district court set out essentially the same analysis i'm trying to follow it said that the rule of what is constitutes a conflict is california law but the rule of what you do as a result of it is a rule of federal law i believe decided the robbery of two languages i just tried to quote to and then he looked at rule twenty three factors in terms of what's best for the class and  district court did follow through that but in this report also made a series of findings that there was not action in bad faith he made a finding that it would be very harmful to the classes interest to disqualify the settling counsel that the settling counsel provided greater experience with class actions with a fair credit reporting act and also were less unreasonable and there was a series less less and flexible so there was a series of factual findings that they're stuck with that that clearly set out those in the class interestingly questions california law sort of override the classes interest because they have a flat rule and if that were true then in the any case should have come out the other way now one of the things that the white objectors have said about linnaeus he said well the court didn't actually name the former class the former counsel who had been conflicted as a class counsel with all the cases from one thousand nine hundred eight through twenty three g had not yet been adopted so most district courts weren't actually making declarations the these are class councils i was before that error that starting but if you look at the pacer printout of the final decision in the linney case page eleven the court says it is clear that the plaintiff class benefited from representation by able inexperienced class action attorneys the five law firms involved in representing the class in particular names the two new class have extensive experience of prosecuting complex civil litigation and class action so the district court in linnie did find that all five council including the two had the conflict had been valuable then this court win on council typically they've been valuable so the argument is all they want plus council they were just sort of along for the ride and looking over people's shoulders that's not that that's not the fire that's not the actual facts of the case the other thing the white council said about the linney case they said well that was  conflict it wasn't a realized conflict so to make the fruits of life of me i cannot understand how how that could be these two council had signed an agreement with the cell phone company in which they were going to be paid by the cell phone company to perform services for them at the same time they're representing a class of people suing a cellphone company you have a conflict that's dramatically more serious and more profound than you have in this case and how can that be incipient once they've already signed the content of the conflict and they're already receiving money so i think that the lenny case is being on point but i also think if you look at the at you look at the rodriguez two case in rodrigues to this court found now they say over the part of rodriguez who are they said that the original house who had the conflict which involved incentive payments of just like this that that was just one ball that they were allowed to get paid that is not what rodriguez who says the court went beyond that and talked about their handling and conflict of the case the court said the district court properly determined its rejection of the incentive awards cured any conflict of interest and the council's services there after were properly performed and confirmed a bet has been on the class so this court said that the that it was going to defer to the district court in that case the conflict of interest between this case and rodriguez are essentially are very very similar to that in this case it's actually much milder because in this case the conflict of interest was disclosed at the outset at the outset to the court and also the conflict of interest was keen for years in the litigation after an enormous amount had already been achieved on behalf of his class mr bland you consumed all of your time you do unless there are questions from my colleagues you may want to some object there is not a per se rule in this circuit according to linnie and then also that was the finding of rodriguez and it was and right and right with one wouldn't make sense of there was a per se rule and then all of this stuff about how people supposedly were trying to blackmail people and bully people and bright people and all this incredibly harsh language it's flatly rejected by the district court after the district court reviewed it tons of evidence and for you to second guess that sort of findings in the make decisions about people's integrity from a dry record an near the evidence judge carter has to be quite unfair thank yes right of first this is not lenny and don't take my word for it look at the del campo decision from the northern district of california which says which applies your honor judge schroeder it applies the california rule in a class action context just like marino does not stand in the way the let me case he totally distorts what happened lenny in lenny there were two individuals two attorneys who reached a settlement that had a conflict and the court said this settlement is out the window because they had a conflict then what happened a totally independent law firm came in which happened to be leaker braver and they negotiated a new settlement and the argument on appeal was the scrub raiser having come in then consulted with the former not disqualified because they realize they use the expertise the other two attorneys that's not this case they'll cancel corey says it's not this case secondly california law doesn't apply the local rules say that the district court can apply federal law in applying additional sanctions and if you look at eighty three days three cole and one three edition of sanctions are despondent paying a penalty disqualification to quit california courts say it's a prophylactic rule it is not a sanction and it doesn't apply rodriguez the issue in rodriguez was not this the qualification the issue the issue in rodrigues one and two was whether they were to get fees and that's a question of federal law and by the way the district court said you get no fees as class action i'm going to give you a small quantum era ward because you did help the class in some small respects but there's nothing in rodrigues that says that adding committed a conflict that you can stay in the case that somehow you can disqualification your honor judge hoggard because the motion was not in front of it there was no motion for disqualification from the court the only mostly only issue were approval of the class settlement and appointment of these councillors class council finally here's the final rule twenty three this court has said in case lumber and rodrigues to it even the appearance of a conflict even the appearance disqualifies council under twenty three g and the question i ask  is if you allow these councils to continue in this case to basically plu pencil this conflict out and continue in this case what message are you sending to the bar about the consequences of a conflict you intentionally create causing an inherent conflict between the class representative exercising their independent judgment and their fiduciary see the class that's the question that your honor we thank all counsel for the for