gleaned further facts in our favor concerning how much lawyer ing he was really doing versus testifying expert as the government's position is so what i would like to do if i may this morning is in addition to answering the banshees questions on this is focused us on really what seems to be the the battle ground the battleground appears to be the government arguing i have a valid agreement and you have to have a standard of conduct was burdened with a conflict of interest now this battleground about a valid agreement perhaps on its face on the four square corners of the document without looking to the context and you look into the context you say well maybe he's tainted maybe this agreement is tainted by the same taint by which his representation was tainted and then you consider that this is not just a privately against against a privately going to a former client the private question but i think it's a little bit misleading it was raised also by the tax court in the opinion it's a good question because we normally want to go to a causal relationship between a catholic of interest and something occurred we may have than this understood actually an argument because we pointed to a number of factors that we called were inadequate representation not because we felt that mr harvey needed to be sued for malpractise that's not the solution here the solution is to put the duty of disclosure on the i r s where they keep these arrangements them if you look at the conflict at the time of the audits not at the time of the litigation the court tried to separate that court tried to separate between the time he performed the services and the time of the settlement agreement he looked right at the time of the audit he was facing an enormous burden as we pointed out in our group he had a state which has sixty eight thousand dollars reported liability rising to over four hundred thousand dollars he had to deal with the consequences that were both gift tax issues there were estate tax issues and then you look at his performance on those issues at the same time that he's performing for the i r s and then you look at how much he was paid he was paid more by the i r s than he was paid by his private client all in this relatively short period of fees for the attorney were directly paid to the attorney as part of the settlement process itself which corrupted the process and the integrity of the court process the stipulation process of the tax cases we don't have that direct payment of fees by that client is entitle to that lawyers undivided loyalty until that matter is concluded one way or another and what you had here was an representation that was  that there were was a conflict of such a nature that we ought to presume prejudice and not inquire further and simply send it back ok let's put that aside without saying whether that argument has merit it doesn't have merit or should be sustained or not the other argument is that there was a relationship with an opposing party which should have been arguably disclosed either by the government examine what if any impact that had on this performance it's a little like the confession that adherence of something good we have done those things we should not have done and failed to do those things we should have done we would like you to list those things that he did not do we should that he should have done and those things that he did that he shouldn't have done and how that ultimately impacted the representation ok thank you arthur let me try federal law sixty one zero three he was in the position of the american airlines case that was in the position at that point where he was deciding what was confidential would or would not be released to the i those decisions he was not entitled to do that i'm still waiting for the answer to my question once he was engaged by the i r s he was also served with no this is a deficiency in the case his response to the notices that deficiency was was a year after he had performed these services and in the meantime he did nothing on the cans he put his entire energies at the very beginning of his of his representation into this contract and has conceded by the government concluded that in print rendering his report within two months this is the same attorney had consequences down the line the first element of prejudiced that you're attempting to jennifer is that his duties with the i r s took up so much of his time he didn't have talked time to devote sufficiently to this case is that what you're saying well he did not i'm saying is that he developed between the two engagements he did that which are the two relevant engagements here i'm not talking about other clients between his two engagements it was clear that he performed for the i r s within two months when he could not perform such a conflict that we shouldn't even examine any element of prejudice we should simply assume that there was and send it back we're regardless of the merits of that argument i want you to focus we would like you to focus on box two if you will which is assume that's the the relationship with the r s s of such a nature that you must show prejudice to the estate in order to prevail that's what we want you to focus on  well once again we think that we put forth the argument that the representation that was required of a tax attorney in this matter fell short of that standard and it's a very high standard while he's burdened with and it fell below the standard of care in the final respects one two three four you didn't do that so you don't have any i mean i think you just go right back to box one when i what we try to get you in the box to look at exactly because we cited the wilson case is the leading case because we thought that testimony of these parties to see if anything would have been done differently according to the judge when instead we know from the record of the estate and gift tax cases that the estate was damaged it was not allowed to put on an expert witness of its own in the trial violation is that there's a direct relationship between the i r s as an adversary in the state case and this is peterson that adversarial relationship but it's a different tense it's an unrelated matter totally unrelated yes i used by the tax court by the iraqis addresses the situation that is different here where that confidential relationship between the client in the lawyer is established first and go away the think that he could of been read the violat relationship of the estate in doing some work on the totally unrelated matter well i don't agree with that he had an option in his contract for example that he would be testifying experts so called under the option he needed m adversarial opponent for the i r s to counsel's office he needed his recommendation to mr stanek down the hall to hire mr parker lead as the expert because he was doing a good job his personal interest in the matter into the intent that is something we can take care of after this oral argument i'm not suggesting or encouraging or simply want in on the fact you have about five minutes left if you want to save a police and if you  said one thing that mark if he did not do and that was hard to get a petition because he was late he couldn't find the fish ordinarily he was late in the amendment that's outlined in our brief he was also sanctioned by the tax court judge foley at the time that if he did not provide discovery responses both written in iraq and tories in documents then he would lose his ability to even argue the lone argument at trial did by then it was never clear in the record whether whether the government was satisfied with his responses and he did not get an expert he had an expert hired the state paid for that  good morning may it please the court and francesca to mommy council with the commissioner of internal revenue i'd like to immediately address a couple of the points made by the estate and its opening argument first of all i think i mean i think this court has its thumb directly on the issue which is that there's simply no evidence of prejudice to the state as a result of her cabbies expert witness services for the i r s as far as the allegation that hard cabbie sort of sitting around working on his contract and ignoring the state's case that's simply not supported by the record first of all his failure to get the protest in was before the i r s was even seeking an expert witness for the mcguire partner's case so any sort of errors on her cabbie's part at that period had absolutely nothing to do with engaging with the i r s there was no engagement to speak up at that point the notices of deficiency were issued around the time that he was hired as an expert to be an expert to write expert services offer expert testimony in another criminal case totally unrelated whether the prosecutor would be under an obligation to divulge them to the to the court involve the i r s it does not involve section sixty one of three then the prosecutor or the attorney for the government might be at liberty to speak about the facts of the other matter in this case the i r s was barred by federal law from disclosing taxpayer well i'm at the same time as i'm working for you i r s i have also representing in a state against you and this is this is a potential conflict maybe it should be evaluated in fact you praise will coordinator who hired her to be for the mcguire partners can testify that are part of the had mentioned the fact that there was a potential conflict of interest the i r s would have evaluated it in hindsight it probably would have been a good idea for the i r s even though i don't think it had a duty to do so to search computer records presumably it has some kind of central computer system working to determine and that he had a power of attorney on file for the state asked her cabbie whether he thought that presented a conflict of interest and asked him to obtain the executors written consent it wasn't paper clear is this if the service had disclosed to the tax court necessarily would have been disclosed to the client i assume at that point that the court would have engaged in some sort of inquiry with the client to find out whether this was known and and studied and waived or not waived in this were not waived new counsel obtained or the the problem could have been avoided i would agree with you and i think in hindsight that that probably would have been the correct course of action to take in terms of making sure that the the model rules that govern attorney conduct armed that that all the proceedings seem fair but for purposes of this settlement offer from from mr harvey based on any offer of divulging confidential information or caddy did not offer to settle with the i r s based on any promise of future employment  points clear whether it had a enforceable duty or obligation to do so have the government disclose this the client would have the opportunity to make an informed choice and proceed from there and even if that wasn't a con like the client may have been able to say no i won't waive that i didn't know it and i'm terribly disappointed that my client my lawyer my own lawyer didn't tell me that at the same time he was representing me he was working for pay for the internal revenue service and i want different counsel and a continuance so i have counsel completely unf anything ling's of dual loyalties of any kind whether their record violations of the room or not he understood does that make sense to you it does make sense to me and i agree i think you know i agree with your point that that would have been a better course of conduct if at the time the parties if i think if the fact of a conflict of interest honestly had dawned on the parties that that may have occurred in this case because they certainly should have dawned on h in the sense of disclosing it to his client correct we can all agree about that correct i think in this case to the extent that it's not really clear on to what extent the i r s personnel involved in the state's case were aware that he was working as an expert for the i r s at the same time to the extent that they were aware of this relationship i think the two matters were so unrelated that it really didn't dawn on anyone in the i r s that there was some kind of conflict of interest that needed to be evaluated but regardless of what would have been a more proper course of conduct in this case at the end of the day there's simply no evidence of prejudice against the estate there's no evidence that the settlement was obtained by i'm too influenced by fraud on the dollars it was a forty five percent reduction the trial judge hadn't expected expressed an unfavorable view of the case the executor contacted her own accountants who refused to support her position and one of them was planning to in fact testify for the commissioner at trial  settlement was clearly reasonable and fair and there's simply no evidence that his that her cabbie's relationship with the i r s tainted his representation of the estate teena the settlement or taint of the i r s personnel involved in the state's case so if i reached he had called her to let her know that we had this conference call with the judge he expressed an unfavorable view of the case i think we should try to reinstate the settlement offer that the appeals opposit previously made so she was upset about th fine you know go ahead and talk to them and then she decided independently to consult her accountants i think one of them with the accountant who prepared these states hacks returns and one was her personal accountant for her partnership and the affairs of her her same portion of the hearing that she actually learned this information from her cabbie a week earlier and didn't understand why her own account would be testifying against her she then called her personal accountant to try to garner his support for her position to get him to agree with her that these transfers we need they were loans they were not guests and he said i was never aware of any loan this was her testimony at the advantage of evidence you're hearing so i think all of these facts together show that the settlement was fair it was  accountants because of what she was told about this conference with judge foley first accountant was running scared he was on the i r s witness list the i r s never planned to really to call and apparently the second accountant who denied any knowledge of anything was last quarter i think that's a far cry from one who was going to testify against the estate had been lined up to do so so i just want to correct  planning to testify for the government for awareness of the facts i think it's demonstrated by the record which natural awareness and i don't think there is a forty five percent reduction when we look at the actual math or so for the questions i will conclude by asking for a reversal thank you