for argument it's fifteen seven zero six nine sunni versus mcdonald the veterans court a legal errors overturned so it seems to me that looking at your case from the best case perspective what happened when the eagle was asked to look at this is that she said i'll i'll look at this and give you an evaluation of your case and then i'll decide whether to represent you and that the argument would be that having agreed to evaluate the case that created attorney client relationship under california law let's assume that hypothetically that that's correct why don't you have a problem that ms need didn't exercise due diligence during the period that  the case in other words this wasn't a situation in which he go had said i'll file the thing i'll take care of it and if she didn't that would be abandonment which would count a second bill telling this is a situation in which she said i might or might not take  case depending on my evaluation and so as the time ran and you came close to the deadline why didn't you missed me you have an obligation to say what's going on why didn't do diligence for wires there was further communications with ms eagles office and those requests for information and sent back so that's the first point is that it wasn't it wasn't just she had additional activities going back and forth during  way for clues to hide the facts that we have in a way for close us from knowing whether affect whether or not she was going to be diligent because i think if you have an attorney that if you believe it or is representing you because you've had a back and forth and several times them additional files in response to you it's not unreasonable to wait until the day before the deadline to call the attorney and say hey i just want to check in with you are you going to be filing this thing on time for me the problem here is that she received  an initial sending materials and then subsequent requests for more materials and more communication and then the fact that she held on to the file for one hundred ten days over three months i think that in light of those initial communications and the fact that we know from based on the letter that there was an analysis going on she was reviewing the file she was conducting the analysis i think in light of that it was reasonable for her to wait until the day before to potentially trying cause as i said the issues here if the weather prevented us from knowing supreme court distinguished between what was in the control of the claimant versus outside of the control of the claimant and it strikes me that under the circumstances that judge doug outlined she still had a considerable amount of control i mean she hadn't gotten confirmation that the case would be that the appeal would be filed or that mr eagle would accept her as a client and again why didn't i think that i could say if she if the if  distinction it has to be really outside of her control how was this outside of her control to when you have you know the question really here is was there attorney client relationship and under california relationship insofar as she said she devaluate her case but it's still it seems to me that there's the question of diligence of whether she did it was within her control and whether she should have checked up to judge well is exactly right the issue here is that the period that they analyzed the better analyzed diligence on was the improper period of time under this court's checco decision that case makes very clear that the period of time that you have to analyze delusions enters the period during which there were several circumstances and that case also makes clear that that exceptional circumstance period exists during the time period for the deadlines that's one hundred twenty days if you look at the veteran courts so you have to be your position that the clock starts to run in new on august second when you realize that you know our position is that that letter clearly establishes that there was an attorney client relationship and the contents that letter also show that it existed prior to that it did in that letter recently began at that time it actually evidences work that she was doing prior to the attorney client relationship existed prior to that letter and our position is that you know of for a period prior to receiving that letter it should be the period should told for you know our being in it is we think that in these circumstances for at least thirty days a reasonable attorney in that period would have told the client that i'm not going to be representing you here's your materials back you need to fi recent line of progeny in the district court which seems to support your position which the government has addressed if we take it as judge type in his hypothetical do we take years given forward with additional evidence about what was going what was going on and maybe try and step should little more concrete details and what on when these additional points of communication occurred that's for now with her discussions that took place after she received a letter from m eagle i guess there's some chart and she says she contacted fourteen the attorneys but she's there if a smaller number which she spoke to or what she did is it your view that there was a pretty close relationship established in each of those circumstances that's an attorney client which wouldn't be established in the perkins case and so your real basis for attorney client relationship is purely the timing on which she sat on it not the fact that she gave her advice at the end because some of these attorneys apparently gave her the same sort of advice like i can't advice there there would be under california law i would just like to part of that that's not the facts we have here because we have the additional situation of obscene materials as a back and forth requests for additional materials plus the sitting on it for three months that makes  very different from the last second plus the last second notice and those facts make this very different from the worry that i think is behind your honest question which is we don't want to have better instead of harder time getting attorney because people will be afraid to even talk to them because if i send you my materials i'm automatically your attorney that's not what happened here in the caliph and the only way you would fall into that is it under california law is if you also provided of the look i said i don't know i don't agree with you  movement to evaluate the case and i think that the the record here may support the idea that in the beginning there was an agreement to evaluate the case if you look if you look at the board's opinion and  are taxing her for failing to check to see whether an appeal had been to file your daughter or your honor that is correct and in the section they do of they do talk about some facts about what occurred during the hundred twenty days but there's no finding that that is shows a lack of diligence the the lack of diligence in the proceeding two sentences right below your order and read from it all of that is focused on the post misstep by activity and under this court's check a decision that is whether to represent her that does not know and go home to her or i'm all for him to a circumstance under which she reasonably believe given that she was communicating back and forth the record that that or its court found any factual findings that there was in fact a back and forth counsel referred to our requests for more terrell's i'm not aware of any evidence on the record that ms eagle ever requested materials again and the factual finding by pre august to who has the burden under the circumstances to ascertain what was going on was it dick cheney to follow up because there was some uncertainty in terms of we're this case was going and what the status was to need to follow up before the deadline or did mr eagle how was it incumbent upon this eagle to advise or at least just as a matter of courtesy to give her more than what she thought was two days to then turn around get notice that she's not going to represent her and then run around and try to find another lawyer or do whatever she needed to do so the question is who had the bird well the the question in the context of actual tolling is not just  court found that ms needed was not diligent during that one hundred twenty day period not simply after she received a letter but her responsibility to make sure the notice of appeal was filed miss needs responsibility half way down the page it says you should know that even if you have a representative as discussed below and then in a tallackson it is your responsibility to make sure that your appeal is filed today to the court on time and then it says if there are any questions about how to appeal it says send your notice our contact with the attorney and sending an attorney but there was now no action during the one hundred twenty day period to confirm that the attorney was required to file the appeal or that an appeal had been filed with this court as a finding not simply looking at those twenty six days or the twenty nine days but in fact the is it one hundred and forty nine days that is new had had the responsibility to file at the veterans court looked at attorney abandonment and whether there is an attorney client relationship but if the court disagrees with that that the veterans court did not look at this as well you have to meet this specific  both the attorney client relationship issue but also no evidence that ms eagle provided the appellant with any incorrect or misleading information other than that well they say furthermore conduct in notifying the apollo the day before yes yes so the but it is looking at medieval conduct and that's the only conduct that we really have on the record from is evil that she received these documents and then didn't contact her and didn't contact me snead until that day before that's the conduct that ms eagle  go conduct that conduct is that she only did this one thing maybe she should have done something else as well but the veterans court was not required to make a finding about whether there was no practice to determine whether there was this was the type of egregious behavior that would constitute an extraordinary circumstance for acol tolling equitable told of the reasons for ethical tolling are different from determining under california law whether there malpractise and that would be something that we appropriate to put in before the california bar but not not something that the veterans court had to make a finding on because it could make a broader discussion of whether this is an extraordinary circumstance  specific start and stop right there has to be a time to start to stop off a stopped clock and time to stop it and this need has made clear at this point that the time period which she believes is that period stark we would say that checker doesn't apply but even if he did the the board has our excuse me the veterans court has already made a finding with diligence with respect to the entire period it's discussed elegance throughout that whatever the start date to the end of the hundred twenty day period so it wouldn't be necessary to remain for it for the veterans court to say again well now not looking at the entire period but that shorter period there still no diligence because we've already discussed diligence well they didn't consider though whether any portion of assuming they found went the other way on the pre august second time they haven't discussed what period therefore of the stock would be applicable but it the veterans court did did state that ms sneed made no efforts within the entire one hundred twenty day period there's no evidence no i'm but i'm suggesting hypothetically that i don't buy that and we think the diligence or the error was exclusively on the attorney and not on the client so that we can't have her with the absence of due diligence in the previous august second period so that we're just looking we're left with ok is rejected and therefore all we're left with are we left with an argument the government which government still say that even if that's true she even if she didn't act diligently after august second because she took twenty nine days of this if there was a time at which she believed there was a notice of someone was firing her notice of her appeal for ms eagle represents me and if that was a reasonable belief we disagree with that but if there was a specific time to start it and a specific time when she learned that ms eagle had not august third deadline that period you'd have to look not just at whether there was an extraordinary circumstance of what the attorney was doing but also this needs to have responsibilities to be acting diligently herself and and circumstance yes your honor and it is certainly worth noting that in the cases in which courts have found that there is an extraordinary circumstance from attorney abandonment there is evidence of the client repeatedly asking that the attorney to do something reaching out to the court asking for that the attorney to be removed trying to get this notice of appeal filed or whatever needed to be filed to be filed and there's no evidence of that here and stuff that would suggest that with respect to what was outside of this needs control she would have to show that she believes that this nose of appeal had been filed she was told that it was filed on again that's like the perry case where that that are in service organization said oh yes we've got this under going to have to look that up trying to think ye the first that's nowhere in their brief in their brief they say i'm twenty seven to twenty eight of their brief they say that checker doesn't apply here because there's no definitive and and that's actually the holding the check or the quote from him when the extraordinary circumstance peri relied on the second circuit had a beginning in it but that's just my recollection of it and secondly just on this point of the point of diligence and ms if you go and look at the entire eight year period of time that she was the span of a couple of weeks to find out what she needed to do to get found out that she didn't understand that this was understood as she she was told you know you could father so she had no concept of what type of document this is she didn't know that it just needed but also  the she did it right right i mean it then all else failed i guess and she also managed to get it done pretty easily ultimately she called the veterans court and they for the first time explained her this is just a one sentence thing that says i disagree and i want you didn't