we please the court my name is robert presley and i am representing the taxpayer collins in there in this case where they filed a motion or petition to quash multiple summons is issued to a third party banking institution on behalf of their their clients who are the on identify taxpayers in this case and the reason they set forth this petition was because the florida bar has has required them to protect the rights of their summons have already been turned over to the you turned over to the i r s yes your honor that is my understanding if that's the case why isn't this appeal moot your honor but my understanding is also that there are that they have the client to review the records  l this matter is disposed of at this time they've learned us that they've had to have the records but they have not formally reviewed the matter at this point john and your honor that's this is why we're here we're here to protect not my client's rights but the clients but their client's rights or you have standing to protect their rights that's because the if you're not because the florida bar has issued a ruling that said if you have if your plans have rights you have to take steps to protect them and that's what they're doing in this instance because we believe and we have the case law the back this up to support this that there are privacy rights issues emanating from the fourth amendment of the constitution but from article one section twenty three of the florida constitution elements present the first is a subjective expectation of privacy in that area when the florida bar gives pressley standing to assert fourth amendment rights of their clients the client would know about this subpoena in the absence i mean could could year is i guess there's no way that your client that the clients would know about the subpoena and the absence of your client having sent out notification to all of its clients is that no your honor because the way we look at this case is that is the obligation of the r s to submit this summons to the and give notice to these parties and in the if they can not give out why because it's there's no indication correct me if i'm wrong but i don't recall seeing any indication that the i r s was looking to investigate your clients it looked to me like the i r s was looking to look at and the subject and targets here were your clients not your clients clients right yes your honor but we alerted the r s a upon receipt of that summons to let them know this that the information  seeking also includes a trust multiple trust funds and escrow accounts that relate solely to the law practice and the clients the clients clients and the unknown tax payers their financial resources right but there but i mean in a tiffany case right what happens there is the supreme court says and in that case the letters are sent are for us named target and then john doe i guess kind of targets they don't know the names of the subsidiaries but they're all targets and the court there said it's enough that the name target is in because the name target's going to protect the interests of the subsidiaries and it doesn't really matter whether they get notice or not so key here you don't even have a situation where the i r s is seeking information from your client's clients they're only seeking information to investigate your clients so it seems to me that if it wasn't even enough in the tiffany case where they were the the unnamed people were being investigated how could it be enough here because as your as your honor stated that both parties were being investigated it was fine to do it under the normal practices but because you had an instance because of a i'm going to say a hypothetical but because of they found the problem of what would happen invest when the someone party is not being investigated they can they for reason that well you wouldn't they wouldn't have any reason to protect these nonparty so the best way to do it would be to invoke a hearing under twenty six u seventy six zero nine f which would be to have a formal hearing process to determine whether the information sought would be relevant to either the investigative parties case or to or to any parties case at this point so that they don't have the three problems that would arise the first problem being where you may end up only getting information that relates solely to these non parties it's only to these unknown taxpayers another problem would be you would be trampling you could be potentially trampling on state privacy rights and the third would be what would you again you wouldn't be protecting any self interest that would protect these unknown taxpayers normally stemming from the party that was  not challenging the summons on you know they they have complied with the summons they have said that the us has access to their personal records but the records of their clients that's what we're trying to protect and the reason they can't be i mean it doesn't really matter whether you have standing this sort of fourth amendment right on behalf of your client's rights records are not it's pretty clear in that the supreme court says that  e former wife of a beneficiary was trying to get access to financial records held by a trustee and the second dca set up but absent a relevant or compelling need we have to uphold this right of privacy for all the other beneficiaries so there is a but that's a different issue i mean here we're talking about and i or a subpoena that is authorized by congress under certain circumstances we're not talking about a personal action you know there's no statute that in titles the person to obtain these documents and you know we are bound by the supremacy clause so why would it be the case now even assuming that your client has standing to represent its client's interests that we could somehow ignore miller or your honor there is a concept called reverse preemption when there are when there are areas of regulation that are traditionally governed by the states you have to there's a presumption against preemption in this case except that it's not necessarily traditionally governed by the state here i mean it's you know the fourth amendment this is an interpretation of the fourth amendment whether this is a reasonable seizure yes your honor but in order to invoke the fourth amendment you need to have a privacy right at issue and those privacy rights are traditionally regulated by the states by the states and that is exactly why in tiffany it if  the if the notion of privacy was clear cut the tiffany court court could say well it would not be trampled on or would be trampled on instead it said maybe trampled on privacy rights maybe trampled on by the i r s that gives an implication records all better no matter who is held by if it's a less is a relevant or compelling need you can't it's impossible to access these records and if you traditionally area being the privacy area is traditionally regulated by the states and because in order to invoke the fourth amendment you need a privacy rights outside of the fourth amendment that these are areas that the states have to set forth and i believe and as i previously stated that the tiffany fine arts case when it recognizes that privacy rights could be trampled on your the supreme court's admitting that well in new york we know we don't have a right to privacy but in florida you do you have a  privacy exactly over this issue otherwise the supreme court could have said no there is no privacy right issue so that's not a concern that's not a reason we have to hold a hearing in this instance conclusion your honor we believe that this process has nullified the state constitutional right to privacy held by our clients clients by exposing their financial transactions to scrutiny and we believe that that that instance invokes the fourth amendment equal protection clause so the unreasonable search and seizure clause and that we have shown a right to relief be on the second level if there are no further questions i'll reserve the rest of the time and for  please court my name as i have been dale on behalf of the united states it's your honor is correct that miller holds that bank deposit or lexx fourth amendment interest in banks records of his accounts there's no basis for attacking or effectively ignoring that decision based on a florida expectation of privacy is the dissent in miller makes clear the supreme court was aware in miller of states recognizing state supreme courts recognizing privacy interests in bank accounts but held anyway that it didn't give rise to a fourth amendment challenge standing for fourth amendment purpose florida constitution itself also says that the right to be secure and in the persons papers shall be construed in conformity with the forms the men meant as interpreted by the united states supreme court so miller's good law in florida as much as it is anyplace else you know this case is a little bit even and it's you know one step removed from miller because we're not even talking about a person's bank accounts we're talking about a client to giving money to their lawyer and thing to or somehow being entitled to notice that the lawyer is under investigation and somehow entitled to notice that the lawyers bank is being you know records being sought so it's we're  even we're not even in the we're one step removed from that so you know i don't even think that even a florida law would recognize a privacy right in this context even under florida law the standard is relevan so you know the cases that he cites for florida law say that a state agency can get records can't get bank records without notice to the deposit or if it's relevant to a legitimate investigation and that's what is undisputed here it's undisputed that these records are relevant to the united states investigation into the correctness of the  arms return or you have to do is to ensure that the powell factor of are satisfied that the government's argument that's correct and there's been no dispute that the powell factors have not been s said a double negative there but the pal factors are not in dispute the relevance of these documents to the i r s investigation are not in dispute there's no claim that there's of some kind of attorney client privilege involved so there's no basis to quash the su anyway so even if let's assume these clients had some sort of right to contest the summons as all they would you know there's nothing here there's no basis  talking about here mr do let me ask you a question before you proceed to your own imposing counsel has indicated that there's some understanding between the parties that these documents that have been recovered pursuant to the subpoenas have not been looked at  in fact i'm aware that the revenue agent has at least reviewed some of the records that were turned over at prior to the at the time that the the  filed a motion to stay in this court the revenue officer had at that time reviewed some of the records that had been turned over by the bank and in fact the revenue agent is beginning an investigation partial remedy by ordering the government to destroy return any and all copies it may have in its possession and the availability of this possible remedies sufficient to prevent a case from becoming that that's absolutely correct your honor church of s is the answer to the moot this question here were guard lists of whether there is some kind of informal agreement to review or not review the records when the records are confidential the i r s investigation sixty one of the three prevents the i r s from disclosing in the information that it receives in the course of this investigation absent some you know statutory basis for doing so so the records are protected the core can fashion a remedy by ordering the return of the records and that they not be used in particular proceedings so the move this is not is not a problem here i do want to address a couple of issues the florida bar itself doesn't require  the an attorney to contest a summons in this circumstance in fact the florida bar itself in its opinion number ninety two to five says that what you know once s issues a summons there's no ethical violation if you comply with the summons so long as you check first to make sure that what you're providing isn't privileged but if there's nope claim of privilege then there's no ethical violation in disclosing the documents so even there's no real ethical basis for this appeal or for the petition aquash originally i you know i in terms of whether the i obligated to send notice to on identified third parties you know to seem fine arts answers that question answers that question the answer is no the statute itself although in th e in tiffany fine arts of the reason there is no need to send notice to the one identified parties is because there is another party the identified party who is protecting its own interest and in doing so the supreme court said it is effectively also protecting the interests of the john doe parties and we don't have that here because the client is not protecting its own interests so there's nobody contesting the subpoena as well tiffani fine arts didn't require somebody to actually contest the subpoenas what tiffany the arts said by an art says there's a i gotcha that that if they wanted to that they had the ability to contest it and therefore their interests were conquered right and appellants had the ability to contest the summons as here then they can't really point to any reason why the summonses are invalid it's in seventy six zero two the statute says that notice is required to put the persons identified in the summons as under investigation that's the party and titled the notice that some party titled the challenge that's the party in tiffany fine arts they can sort of you know alleviate congress's concern with you know judicial review of enforcement proceedings and at john doe summons in this case that's the seventy six  nine f statute sort of raised for the first time in the reply brief but i know that it's raised in this related litigation seventy six zero nine itself says that issue in john doe summons when there is no such person who can contest the simon so that it wouldn't apply here it says it's specifically that they those procedures are used when there's a summons which does not identify the person with respect to whose liability the summons is issued that's not the case here in ultimately their argument is tantamount to saying that a john doe summons is required or noticed and identified parties is required in every bank records case because all bank records have receipt of funs you know you know i place a check into the stream of commerce somebody you know ordering it for me or even if not you know somebody is going to find out that i wrote that check if if the recipient of that check is under investigation you know we're not there's really no limit to that and positive years are not don't have a fourth amendment right to prevent the bank from revealing their records there is a statutory basis by which a party under investigation is entitle to notice that that happened but if they you know challenge that they have to establish that it's not relevant to a legitimate investigation or words in bad faith or there's some issue of privilege and none of those are an issue here so absent you know where here the summons is relevant to a legitimate investigation there's no claim of privilege in it's not even the taxpayers or their clients records breslin thank you your honor just going back to the standing issue that you've brought up one of the other reasons my clients would have standing to bring these rights to the forefront is because it's also you know the trust accounts are their accounts and without the unknown taxpayers given notice of this that someone has to enforce their rights and i believe it's cited in my brief and i believe it's a citation seventy eight dash sixteen the advisory opinion that we rely upon it says that you have to protect rights and and privileges it does it they need the rights we believe in this case as i've stated before are the our privacy rights that were necessary in both the fourth amendment the other i want to bring up is that one of our clients did catch wind of this process of these proceedings and did make a formal objection to it but there was it was already at that point too late to contest it according to the summons i don't i'm to be clear i'm not sure what the lower of the if there's a court even consider that even though we found it at the time of the hearing consider their objections the one thing i would like to end though your honor and i court would have just come out and said it and one of the make more than have posed as a potential question as you know whether the i r s could act in these instances without trampling on the privacy rights instead it left it open ended and i believe it did that because it recognize that other states may impose what new york doesn't and that's what the and that's what's happening here the human rights of my clients clients the unknown taxpayers are being trampled upon by not allowing them time to interject in this case and you know from a practical standpoint we're talking about two three years ago it's clients who want their active clients we do not have come you know my clients will not have contact with them so and the representation ends once the hire lawyers they do so with the idea that everything they give them will be kept confidential through the end of time through the end and privileged and in this case we have to we have to always up stand up side uphold that right to privilege of my right to privacy