a lawyer be deemed to have an attorney client relationship complete with all its attendant duties of zealous advocacy confidentiality loyalty fiduciary and the duty to keep the client informed with an entity that it doesn't know about and we submit that the answer is and has to be no and the reason it has to be no is because an attorney client relationship is and must be based in contract there has to be a meeting of the minds and there cannot be a meeting of the did your client write a contract once they contacted you and sent it to them i don't recall that in a contract for the attorney client relationship yes no i don't believe there was so this was an oral agreement i think that's correct and they said we want to know about essentially me and my company's right where there are whether i or there were too o and our companies will be liable yeah that's you're referring i think judge to part to the april fourth two thousand and thirteen email in a report to use the word we weave and use the word we or we've seven times which clearly refer to cohen conceded and it's on page eighteen of the transcript of his testimony where he said he was asked several questions do you owe a duty to us and to our companies and he said yes but this is important to keep in mind and i think judge the par you're right he would have been hinting at most if not an attorney client malpractise duty because if you look at his testimony on page fifteen he was asked what did you think they meant with this e mail and he said he was asked what those other assets slash companies at risk what does that mean what is your understanding and he said it he thought it meant could be capital and all of its subsidiaries he didn't understand assets and other companies to mean anything other than the guys on the email and could be subsidiaries he didn't even know of cells existence and there can't possibly be a meeting of the mind with with a company you don't know about and their argument has never been very seriously made and i wouldn't think that there was an actual meeting of the minds between weiss and s s l which they didn't know about their only argument in the trial court's ruling was this that because weiss in carrying out his duties up with a contract but would but my point is if he's if he's in a relation client relationship with the person who sending the e mail in this case cohen or chafee and he doesn't clear it up and he doesn't know about l there can it can be a breach of the duty owed to coby and chafing cohen but it doesn't create an attorney client relationship with sell the trial their argument is always just been that there is an implied contract and it's implied because he didn't find them in carrying out his duties owed to cohen and chafee but that's that's not a basis for an implication in any way shape or form that's that it may be a imputation what the judge essentially did is imputed knowledge to weiss that we know he didn't have we know that he didn't know about s s l that's undisputed and because he didn't know about make sure i'm summarizing that neither we nor our companies are held liable for this doesn't the lawyer have an obligation to find out who he's talking about he might have an obligation to cohen to find that out and that is part of the breach of the duty owed to cohen and he was held liable against cohen and we haven't challenged that on appeal but that deaf the breach duty owed to cohen can't be deemed to somehow create a relationship with the client that he doesn't know exist because there can't be a meeting of the minds actor my to the college kid gone away yes or no duty i am i i don't think so but i'm not sure i can see that it's closer because there's more likely a meeting of the mind the lawyer knows about the family the lawyer knows that you have a family and they're real people and he knows of them this is a different where there's an entity that has and that has exposure that he doesn't know about because he doesn't know they exist and if they had told him about s s l he would have been able to fix it then he would have known about this entity that's not part of the subsidiaries of cobi it's a sister company so here there's an oral contract the judge there's some evidence from which a jury could conclude that you represented them at least the e mail and other things why not just let it go to a jury like the judge did because there isn't evidence for them to conclude that there is a contractual relationship with s s l there's no evidence of that there's no evidence that he knew they existed was your instructed on this issue they were given generic instructions on the term the attorney client relationship is a question of those instructions i don't believe so we can assume that they were properly instructed i think we're stuck with that yes i think that's right but the key but the key is there can't be there is no act actually judge never should instructed well we we were we wanted the judge to give more detailed instructions that he rejected i don't think we've appealed this jury couldn't possibly reasonably come to that conclusion or whatever the standard is very deferential standard is in the yeah and we have not challenge the instructions on appeal but what my argument isn't got us in that they're properly instructed and that's fair but my argument isn't based on the suggestion that they weren't properly instructed my argument is there no i now understand that it's not it's just that it's based on something that gives you a much deeper  not i don't think judge rogers not when you consider the if is there any evidence that there was an actual meeting in the minds between weiss and s s l and the answer is no there was not nor is there any evidence that it can be implied it can't be implied because his breach of a duty owed to cohen didn't do anything that would spring this into existence or give rise to an inference that he didn't know about us ourselves did know there were companies out there that he assumed that there were companies that they were subsidiaries of coby he didn't know there was a sister company out there that had exposure because he was never told that and he did and he may you're right he may have zero to do to cohen to find out and maybe he breached that duty to c companies that there's nothing but a generic reference to our other assets and companies so we know that your other companies exist we just don't know which ones they are we don't know we know that they have other they're represented by somebody that we'd be inco anything like that but we know those companies we know that there's assets and companies generally they own who he didn't say they own he just said it wouldn't matter if they didn't know or they didn't have a controlling us visually controlling  well that's that's true but that's hence the problem with the amorphous email just a general reference to our other assets and companies with general i understand your position it makes perfect sense i just  haven't trouble seeing why it's a legal issue as opposed to fact because there isn't any i don't want to use my rebuttal time but there's no evidence of an of a meeting of the minds and think thank you thank you court my name is jeff appearing on behalf of the plaintiffs i agree with counsel that the issues before us today are narrow with respect to the appeal there was one and that is viewing the evidence in the light most favorable to the plaintiffs could reasonable minds at least differ as to whether there was an attorney client relationship between the firm and s s l the answer to that clearly is yes reasonable minds could at least differ here i am why don't you have an obligation at the very least when you go to your attorney do inform your attorney who you want to represent mr chafey told the law that that firm was to represent the company's mr chafey did not identify s s l assets as one of the companies for one reason and one reason only and that's because the controlled group liability test was never explained to him the jaffee firm never asked the right questions there was one who i'm sorry maybe i missed it where did he say i want the companies  represented he said it we talking about the email about the email but not only the email judge the power i'm talking about the email where he says we want to be sure that we aren't personally liable or put our other assets and property that risk but he doesn't say i want to be represented he says i want to make sure i don't put my assets or companies at risk so for example if i say i want you to write me a tross because i want the money to get to my children versus someone else and you write a deficient trust who are you representing when you write the trust are you representing everyone i want to get money to what if i want to distant relative to get i don't know my wedding ring are you representing them as well i think you do our duty to them  representing them as you know a duty to somebody as a lawyer that you're in conflict with but you can't represent such a right i think if it is clear that the legal advice is for a group and identifiable group then the reason i want a client relationships like your client wanted your companies protected i want my children and relatives and distant relatives to get the three dollars i have and you write a trust for me so that happens are you representing the person down the line yes and look at it this way even though you don't know their names yes why do you believe what if that person how do you avoid the conflicts judge rogers you do what the jaffee from failed to do here and that's asked the questions what if but what when the in the trust situation that you just said you represent everyone what if i say and my grandchildren not yet born so you represent people you could never know the names potentially and then twenty years down the road one of my grandchildren sue someone else and you represent the other person now you put the attorney in an awful bind just the party your hypothetical lays out facts that are markedly different than the facts that we have here or here we had existing companies and identifiable set the testimony of the standard of care expert here was if i received that e mail and he said protect my companies then i being the expert said would i would consider my client to be the company's and there's no doubt that the jaffee firm understood who its client was and it's not just the e mail that we've been talking about it's also follow up correspondence between the parties for example and these are in the appendix that we submitted at appendix page twenty one there is the and execute the agreement close the transaction and he says this he says personal liability is limited by the existing structure and then he says ownership of the holding companies avoids any control  group issues so he understood the distinction between the personal interests and the companies and in fact if mr weiss had thought for a moment that the only client here was the individuals and the issue is controlled group liability what he would have said is by statute control group liability can't attach to individuals it only attaches to trades or businesses so you don't need our advice idea yes and if it just seems like a reasonable jury might say that you were a that you were a client because of this duty idea that at least one lawyer testified to but a reasonable juror might not know the legal subtleties of what that means so there may be you conceptually can have a legal duty to someone that you don't represent and that's a subtle thing for a jury to grasp it's not subtle for us to grasp we're lawyers and  acquaintance of letting a jury come to the conclusion that those are the same thing is problematic but whose responsibility is it to clarify it's clearly the lawyers responsibility to clarify wouldn't it be an incredible trick for a law firm to be able to raise its own negligence its negligence in failing to ask the right questions as a defense to its negligence in failing to give the right advice that's what the asking this court to conclude it turns the concept of negligence completely upside down and judge rogers one other point i was talking about this the documents that reflect what the parties were thinking and it's the other document i'd ask the court to consider is that appendix page thirty nine this is now an e mail that comes after the transaction closed and it is again from m chafey and he says you worker rock that l s i the company they bought is not part of a controlled group with coby or any other entity he understands at least the very basics of control group liability and he understands the control group liability can only attach to other entities it can't attach to two persons that could be all could be very real consistent would not have and ethel be a client you could just say that the stakes are big not only for your your client but also for these people that we control that are not your client because they have separate lawyers they didn't play any apart from that we're just talking about who's represented who's right on the issues we can say you know if i do this those people will lose money i want to know whether they in fact will lose money those other people if i had said when i came to you you're only representing you and me not these other companies but i want to know whether those other companies are going to gain or lose money if i do x you advice me and i go one way or the other because i'm sympathetic to those companies they're run by my sister in law ok and i don't want to hurt them so i ask you how is that going to affect them but i'm not but i'm not but i'm not asking you to represent them this is a hypothetical that could happen even though there's all this negligence about about control group responsibility that's the that's the that's the issue that he's asking about that's not who who's being represented you see what i'm asking well i think i do judge rogers but it seems to no answer pardon me for interrupting but it's no answer t assets and say you're going to be representing us to sell assets not just the companies but that particular company and my point is they surely would have done that had they been told what the test was but because they were never told how could you make that i don't follow if you can explain why and why that's true then you have a compelling case but if you can't then why it's true that they didn't know to mention s s l assets why that controls whether they're a client or not i gave you an example where they have the as the nickel question the identical ignorance their demichelis problem of raising all of that for purposes of whether there's a control group liability but they make very clear one way or the other whether s is a client or not which they could have done and still have that question because they refer to other companies they could have said hypothetically they could have said point one s s l is and has their own lawyer i'm not asking you to represent  to find out whether all my companies are controlled group and all of that ignorance and all of those problems that's what i'm asking about why couldn't you have you could i'm not saying that was the case i'm saying  i'm sorry judge rogers you tried again please i'm sorry i'm missing you come in you're completely confused about about what you should know what questions to ask yes so for but you make very clear that you only want you to represent me you can't be representing s s l they have their own lawyer you're not representing them all right and that situation you would say they're not your lawyer right even though there's all of this stuff that you're telling me about how they're confused about the nature of the controlled test so i say how can that be that such a person would become their lawyer and you say they don't why it's in this situation because in your hypothetical you said that the client said i don't want you to represent there some doubt but your answer is not that but because because if i can say it right because there was all this confusion about the nature of the control us that's what i'm understanding you're i got what i'm saying is this your hypothetical was the client says to the lawyer you don't represent that entity in this case the client said to the lawyer you do represent our a client comes to a lawyer and says protect these companies the testimony in the record is from the standard of care expert that means my client my clients are the companies and if the lawyer wants to narrow it now you could  if you say protect the companies back to judge rogers example i imagine and you can tell me i'm wrong but the big companies all the time get lawyers to protect their subsidiaries but you don't represent the subsidiaries in doing so you may know if you do sherry duty to them you may go liability to the ultimate holding company or whatever it is that you represent but you don't protect all  by i mean you don't represent all the subsidiaries just by someone saying protected if the assignment is protect our subsidiaries and the lawyer doesn't clarify and does the legal work and accepts payment for it that i think he does why is it i mean i don't understand so why where does it come from what's the best case for it's the lawyers duty to clarify versus the person's duty to ask that you represent that i understand the logic of that but i asking for case though there's not no case right as to who's obligation it is to clarify i understand your argument but i don't base i don't recall that that was even a challenge point and so therefore i don't think we even cited cases i think it's in the ethical rules of course it's the lawyers obligation and in this case it was the firm policy to do engage with letters which mr weiss never did do mr weiss in addition to that said yes i owe duties to these and to your best argument is look had they done what ordinary attorneys do we would know this and you shouldn't reward that because then you're simply going to reward negligence i do agree with that state one ever said to what he said he was to represent assess all s s l was never even identified to anybody until after the closing weiss actually was given a chart by plaintiffs that didn't include s s l he had no reason to to think that there was some sister company out there under there are have do you have a case holding the opposite the clients d to make clear exactly who's being represented because it seems to me there's some logic to your friends argument that look you're rewarding the negligence of a law firm my slight practice in law firms we always se engagement letters i mean that would have made this a nonissue well would have made it a non issue if they would have just identified s s l which is one of only on my question is you have a case that says this is a legal thing versus a factual thing that was properly left to the jury you have a case saying it's their duty i don't have a case that says it's their duty but i do have a case that says there has to be a meeting of the minds between a lawyer and it's not like a factual question to me there cannot be a meeting of the minds with someone that the lawyer doesn't know exists there's no suggestion that there was anybody to college son you still haven't answered that i don't think though that the lord would represent a family member that it doesn't know about i want you to represent me and my family lawyer never asked who's in my family you're saying don't you don't represent i'm saying if the lawyer knows a certain assumes certain family members exist and knows about them but there's another one that how do i know that i go into a lawyers office i say i want you to represent me and my family i'm a lay person you say ok i have a son in college you don't know about your saying if you you don't represent him because you don't know and you never asked the question i'm saying that might be a fact question because for example family does it refer to your your close family or does it refer to your cousins and i don't  obligation is it to make clear i'm not sure all that but what i what i am sure about is that there has to be a meeting in the minds and that's the key here their own expert the standard of care that mr gould talked about admitted that there has to be a bilateral agreement between the lawyer and the entity he admitted that he also admitted that any time the mere fact that a lawyer has been asked to look into control issues does not mean he represents anyone that might be part of the group and that torpedoes their entire argument because that's all their argument is based on their argument is we want you to represent us and also to protect our other assets and companies under their argument if they if he had a just a small percentage ownership in some company say stock in g m they would be their client they would be their client was what he's saying is if the lawyer doesn't find out who they are then apply a relationship springs into existence between the lawyer and that en and that can't be that can't possibly be it might be judge the power assuming that he's right that it's the lawyers duty to look into this even though he doesn't cite a case that says so it might conceivably be a breach of the duty owed to him his client but the breach of the duty to find the other entity can't possibly be held to spring a client relationship into an existence because there's still can't be a meeting of the minds and that's what the judge did here the mistake the judge made was he thought there was an implied contract viber two of weiss's failure to find s s l but the failure to find s s l doesn't result in an implication that doesn't suggest that weiss actually may have known and may have had a meeting of the minds with s s l because we know he didn't and once we know he didn't because it's an undisputed fact that he didn't know about s s l there can't be an attorney client relationship either actual or implied meeting of the minds we know that it can exist which is why we're entitle to judgment as a matter of law i see my time is almost up i'd love to answer any other questions of the court has any but otherwise i thank you counsel your case will be submitted please call the next case