denial of our motion for summary judgment and we believe the court erred really at all three levels and first of all determining that the plaintiff's conduct involved expressive conduct on a matter of public concern it also weird in determining that that speech was constitutionally protected because it failed to apply the pickering balance and also because the right was not clearly established now since this court told us to be him an attorney who basically was employed by the entity suing another department of the entity represented by his boss when his boss raised conflict of interest issues he proceeded they fired him it's a little better for the plaintiff in that case and it is for mr arkan because his conduct was actually mr fabio almost conduct actually was in compliance with their internal policies and the position he took was not adverse or in conflict with the other entity with home his boss that there was a conflict mr arkin on the other hand is completely different he took a position decidedly adverse to the county and advising county employees on their claim against the county and seeking to negotiate a settlement on their behalf what do we do with the ruling by the juvenile court judge that there was no conflict not rule that there was a conflict he ruled who the client was the issue of conflict was never addressed by judge kelsey and he admitted he hadn't had the opportunity to review the briefs and basically he shot from the hip and making a decision and determined that c p s was the client a clearly erroneous decision because i mean it's not binding or that it's just erroneous i believe it's it's clearly not binding and it is erroneous why it's not finding a state court decision which didn't fully discuss the issues which affected the magistrate judge's ruling on a separate legal issue of whether or not qualified immunity applied and judge kelsey didn't even  canon of ethics whether there was a conflict of interest was not the basis for the judge kelsey's decision and he didn't consider the authority cited it wasn't briefed the free speech aspects were not briefed what if best before some of the others the only remaining act after judge kelsey's finding was the county council's recommendation to the board of supervisors that he should revisit the cond trac because mr are going to interpret it differently the trial court didn't interpret it the same way that batchelder did and so the county council suggested to the board you need to revisit this that is the only contact which happened after j notice which was the absolute right and the board thereafter determined to renegotiate the contract which it did and still there isn't anything in judge kelsey's decision where the re the office of county council and what happen is the board and this goes to show another heir that judge o'neill made the calls to all connection at that point the board made a determination no we are not going to terminate the contract we're going to renegotiate the contract and the county counsel's office said you then have to deal with these irregularities so there was no causal connection between anything that the county council did and what happened to mr batchelder and that leads to whether or not the rights to free speech rights were clearly established and as the case held  qualified immunity it cited president to the first circuit and the eighth circuit but it failed to cite to this ninth circuit which has clearly made exactly the same ruling in the moran case one forty seventh the third at eight forty seven because the underlying determination pursuant to a pickering pursuant to pickering whether a public employee speech is constitutionally protected turns on a context intensive case context intensive case by case balancing analysis the law regarding such claims will rarely if ever be sufficiently clearly established to preclude qualified immunity under harlowe and its progeny this court already has the rule fabio it's been followed consistently in fact in the moran cases the ninth circuit has cited similar precedent in the first fourth fifth sixth seventh eighth tenth and eleventh circuit so we have a first amendment case where the mantra judge failed even balance do the pickering analysis and then basically apply the general principle of free speech rights are well established without doing the fact intensive an morning mr arkin i'd like to know that in the record concerning an issue you had about what judge kelsey said on the excerpts of record page two forty two line and i would agree but that was an issue that came up during the opening presentation i just want to clarify i understand but i'm i'm asking you why we should be concerned with it at all because a qualified immunity question is whether as a matter of thought clearly established constitutional law what batchelder did a reasonably objective person similarly situated would have realized violated the when you've got a balancing test like pickering it is virtually impossible to know in advance how it's going to come out you know i disagree with that in this case take a look at the record here which the court of appeal relied upon first you have a letter to county council suggesting that his terminations of mr arkin was precipitous and not well founded it is of interest to note that at that same hearing when judge kelsey said he didn't feel there was a conflict county council also said they had already hired a replacement there was no no good faith effort involved here even though my other playing for a first amendment violation was tossed out they had already replaced it with about they had already replaced mr arkin before they spoke to him and then what happens so i say here i don't know if you're reading this right then judge kelsey says there is no conflict here his client c p s and what you're doing here he used the word smells that whatever if we don't know who he said smell i mean it's equally possible i think that he thought it was kind  question and here you've got a novel situation on top of the pickering balance because it's quite unusual to have a lawyer on retainer to that county then represent as a private retain lawyer represent the interests of county employees against the county well i can understand if it was in the contract that this independent contractor could not take any cases adverse to the county that was not in suing the county or taking adverse positions with further clients against the county it may be perfectly proper but it's not reasonable to believe that nor is it clearly established the question reasonable that the county county council here believe that this judge was wrong and didn't believe he had to follow that  understand that i am bound by what the state court said i think there's multiple aspects to that answer first of all it's the nature of the disclosure having to do with sexual has harassment and discrimination in the workplace i would think and i thought that's how the alpha energy saver's case out of the circuit said when you get matters of that importance that in this balancing test when they are gave batchelder the authority to terminate without notice initially only gave him the authority to terminate without notice if arkin was unable or unwilling to do its job not because of some extraneous political issue have a constitutional right not to engage in a conflict of interest i would agree with that so doesn't this all come down to whether he had a conflict of interest well i actually don't think so because i think that's a pretext though we have to decide whether he had a conflict well i think it's been decided i think the third dca supported the trial court when the county council dinner with to them and said hey we need to correct  not to consider the case then i would say why did they take the writ it wasn't going to be helpful in their analysis of what they could do why bother doing it i i think the answer was done as i mentioned in my brief they weren't going to pay to county councils they had hired a replacement with no notice to arc and no public solicitation of a replacement no putting the contract out the bed they went behind the scenes and hired a replacement before they even told come from the fact that he was making a titian to the government as a lawyer you're saying that's a protected first amendment interest or just com because he made a claim that had to do with sex harrison which is an important subject well if i could i see my time's running out here i'll respond to that question i believe it's in the letter if you read the letter that started all this he makes reference he covers themself fortunately because he doesn't just reference the claims of these employees he specifically states in that letter that that they have expressed to me not only the claims that were the basis of your letter but also other potential claims in the nature of employment discrimination and circumstances relating to failure of the employer to protect the employees from a dangerous workplace environment my the point of my question was though if he has a conflict he doesn't have a constitutional right to make those  don't think if he has a conflict they can terminate him the way they did it anyhow i mean i think they didn't know if he had a conflict batchelder thought so but even after everything that has happened he said in a declaration in january or supervisors with the issue what do you expect in the say how convenient for him to say oh i still believe it of course he still believes it and you know if he said he didn't we wouldn't be here again this case would probably be resolved so i just want to make a s arkan's legal skills have never come into question there's no collateral issue that he might have been in act as a c p s litigator in fact when the agency was required to write determination  said they had to they were compelled to do it they didn't want to do it and basically there was one thing that never happened here in fact they spoke to the employee and said hey look we think you ought to stop doing this we don't think this looks good and if you read in our letters with the county when we were trying to renegotiate the contract we said we're willing to stipulate to put in a clause that he won't take any position adverse to the county and that's all different from fabiano we never had that chance the employer or the supervisor never came down the arc and said you know i don't think you should do  what i believe to be a very poorly reasoned decision doesn't constitutionally preclude him from giving advice to his client the county that you've got issues with this contract that you need to address and it isn't i think the clearly is no conflict i mean there clearly is a conflict that the superior court judge failed to address but more importantly it doesn't matter if the county council was wrong in that determination because the doctrine of qualified immunity protects against reasonable mistakes and it is as judge silberman you ruled in sorrels versus mickey it is the plaintiff's burden of proof to show that the right was clearly  established the reference to the government code in the professional rules of practice clearly demonstrate that a reasonable person could conclude there was a conflict and that it was reasonable for the county council to be concerned