believe a word playing does have to say about the accident you further granted worthington's motion for sanctions requesting for an evidentiary hearing and you ordered the district court to have a hearing specifically you wanted to know answers to three questions first when the plaintiff's counsel learned that plane just were lying under oath second what actions of any plaintiffs counsel them took and third what for their thinking is if any are clearly erroneous factual determination that the district court made here because it's a pretty high standard and i understand you know these parties have been in litigation for years it was sent back to determine if attorney sanctions were appropriate and addition to the dismissal of the case which is quite a significant sanction and rare fleta and so i guess i am just curious on what you think and if you can point me to what you think the best evidence you have that the district court here met that high standard of clearly erroneous ok first of all plausible or without support in the record what we found is the district court factual findings in denying our motion for thinking was directly contrary to his factual findings where he granted the motion to dismiss and i'd like to just point to some of the mean that contradictory five actual factual findings first of all the district court dismissed the case because i think you're right that you were pulling things from the two thousand and thirteen order and then also things from the two thousand and sixteen decision denying the motion for sanctions so then it was set back and i was just getting confused because it seemed like some of the facts were getting the judges decisions were getting your point from one order and then also from the other correct and i'm sorry let me clarify that i was using the factual findings underlyin is ok and just to address that point ok even based on the evidence that came out in the evidentiary hearing e mails between counsel and ingle break made it clear that since the first deposition and then  was contrary to the evidence that came out and just to give you an example in the second deposition and let me back up one of the most incriminating evidence in this case against mr in the break shouldn't speak for judges school them or mr engle brecht is a liar he lied about his meth use given what were the lawyers supposed to do in response to that i understand he testified truthfully a trial and the trial judge issued the ultimate sanction in your client's favor he dismissed the case and now you want a sanction of some kind apparently against the lawyer  the lawyers that were involved in representing the plaintiff eight what were they supposed to do different than what they did be what are you asking for in terms of a sanction in this case two questions to answer your question first question is what they're ethically obligated to do with in the state parsed vision in the form or hanging up get th talk about whether or not he had testified falsely under oath and if indeed there was perjury under oath then to advice the client to correct that deposition testimony that's clearly fal immediately so that worthington is not forced to litigate under false pretenses and by not doing so it's interact violation of california professions code rule fife two hundred where members of the california bar are only supposed to employ a means only as are consistent with truth not mislead the church or any other judicial officer by an artifice or false statement of fact or law as far as what we're don't believe that his method meth youth vs the positive or a is a true story either but we don't know because he's wrong that on has two weeks into trial and made it to some of the perjury but what is true what is false we don't know and the court decided he cannot believe a word mr right now we've crossed the threshold we know he's not believable the court dismissed the case in your favor what were you seeking this was august two thousand and nine e mails between counsel in their client made it clear that counsel doubt at the veracity of these testimony and the following the second deposition we caught him planting false nothing as far as canceling their client to tell the truth correct the false testimony immediately as a result we have to spend millions of dollars in excess of four million to litigate to uncover third party evidence that would expose his life again and again was that what you're looking for is a monetary sanction of four million dollars yes your honor but what what does the lawyer do though  when it also looking i think it's a form opinion number one nine eight three seven four which says attorney cannot divulge client confidences without the client's consent so i mean this is seems to be say that the district court clearly erred in its determination in applying these two to the facts here that's a great question and thank you for finding this site former pain in one thousand eighty three dots than for makes a thought i read that the district court said the lawyer here did the best they could they found out what was happening in terms of the drug use they worked with the weighed the credibility of mr l a lie back and the attorney here and i'm just trying to figure out how we can say that that was clearly erroneous what  breck testified similarly and i just want to just briefly every site that question and answer between mr ergo attorney for this is during the first evidence or hearing question to mr engel brick was there ever any discussion between the two of you meaning mr ingle brick and counsel the back as to whether any of your testimony testimony into position was false answer no questions so that subject never came up correct answer i don't think you ever asked me that no question was there ever any discussion at these meetings as to whether you should advise worthington that your testimony at deposition had been fall answer no and quickly to address your earlier question about some of the conflict between the duty of confidentiality and duty candor our position is that duty of confidentiality is not even triggered and that's because under california rules of professional conduct rule three one hundred that you can't disclose client information if there is informed consent from the client we know from mr in all parts testimony that he indeed consented he testified that  wanted to do the right thing help ever when asked why he didn't advise worthington or the court about the fact that he had intentionally conducted perjury mr invoke bricklaying that because he didn't know that he had an the deposition testimony that is clearly false immediately weddington were not have to spend so much money trying to expose life and it worked on diligently complying with we had pre and post hearing full briefing three days of hearings in two thousand and sixteen live or deposition testimony read into the record from thirty witnesses four of whom were expert witnesses two thousand pages of testimony were presented thirty six page detailed opinion addressing every though should your clients have withdrawn from the case i mean in light of everything that's come out here you know it seems like california state bar form opinion the one that was reference and from the briefing here today night one nine eight three seven four states that attorney does not have a duty to advise the court a civil case when the tourney's client has committed testimony of perjury but it also states that the tourney must take remedial action or with yes but your response the response is that what california says and by the way him about a year before trial and began to tell him began to admit that some things in his testimony were right and then he spent a lot of time working with mystery  now the client wanted to do the right thing i think that's what the time period she was talking about so he has the client tell him he wants to do the right thing why wouldn't at that point well it's all the question of what well disclosure and the court went through that life and you have to to understand mr mr ingle brick they are your you know they're your typical civil civil litigation these are these are indigent people they're drug users they were in the sand in a boarding house when this product blew up blew up in a way that was the same exactly the same as it happened to other people who would use this product who were using drugs and he had there and he suffered seventy percent of his body had been he had suffered through second third degree burns and he's and it was hard for him to admit that he was an addict but me and tells tells me there are some parts of my testimony work more accurate and he does that i he didn't say you did you were lying to me and he didn't pound down on me so i wasn't going to be judge judge mental with him it was it was very important for me to continue to have a report with him and to get him to be comfortable and he spent a lot of time and he spent months working on that and it was only a became more and more comfortable as they got very near a trial that that that that a material part of his testimony said he was he then he basically confessed to mr lie that that he had smoked meth i think the day before and that that was a new factor that was the very very shortly before trial the about your question about would they have to withdraw the answer is under rule three to seven hundred in california section three dash seven hundred of california rules official conduct that only applies to two prospect of violations and we cited what california lawyers call the writer guide r u t t r which stands for the proposition that pas fact your client has done something wrong in the past doesn't mean you have to withdraw and then but but the mandatory duty only arises where you believe as a member of the bar that your continued employment followed the correct path which was to remonstrate with the client and to ensure that the central core hypothesis that his client was testified about as to what happened in this case that that remained unchanged and it always did and so he did comply with all of his ethical duty as number of the court also said that i'm not sure i would have withdrawn i would have granted a motion to withdraw anyway like him and these are indigent plaintiffs who have a meritorious case and this rely big believes he's telling the truth and he's telling me he's going to come clean about it until shortly before trial and surely before trial he told mr mehlman and mr miller and says oh ok you just make sure that when he gets in there he steps up and he comes to jesus and he tells and tells the truth so in california you cannot a product that has killed people has maimed people and here frankly worthington got a little bit lucky they had plaintiff who wore the vast had testified and if they ever could and with the with jury consultants and figure out how to make it smooth there are those kinds of people out there and not sophisticated people they have had tough life does not excuse their perjury but they had good passionate lawyers who were presented with a dilemma that is unique in our country i know i know all three of you i don't believe you i am not sure i don't think i montana arizona and the state of washington i'm not sure anyone here has been a member of the california bar but the one thing you learn we never adopted the model rules i don't want to ethics work and i actually like it i like that there is a bright line in california when it comes to the question of client car conferences you cannot reveal that there is no duty to require lawyers to go to their client and demand that they waive the attorney client privileges which is the premise of one of the arguments here today so the other thing the other thing is looking at like this on the with on the withdrawal question that if they would have withdrawn under california law you cannot disclose the perjury very clear doesn't fix the problem that makes it worse in the break in the head as i then left without a lawyer as judge carney said he goes they may well have been conditioned at that point hoops i told my lawyer the truth and now they fired me so they get so they get new lawyers they may not tell tell them the truth and that new lawyer is going put you in a position where you have to go get a new lawyer who knows this kind of facts an oreo and there are a lot of expert witnesses they talk about the toxicology tests support them we had testimony of dr we had testimony from two doctors that that supported the good faith belief of counsel but you but they the trial judge made this federal court set central district they're loathe to give continuances and the very old case he may not have given a continuance that's not clearly fact he said he may not have done done that but again it brings in a new lawyer who has the same ethical dilemma and have come closer to clean it up a little bit but they put the try to put the subject california lawyers to the a b a model code it just doesn't work that's not the law and the central district  california davis to be a member of the central district you have to be a member of the california bar and you have to agree to follow the california rules conduct business center fashion's code six zero six eight you should protect client confidences to your own peril and now they're in peril the court made the factual finding as well that worthington has never been able to prove any proximate cause a and that that records very clear that were and then ten they put i identify any specific things they would have done differently in mr mr airco sitting over at the counsel table in his declaration in connection with the motion for sanctions said if you find there should be sanctions and then we'll sell you concrete examples of things we would have done differently they would never have done anything differently judge carding found that as a factual matter i have forty five seconds to run and we also have a motion for sanctions  the merits my client spat eighty eight hundred dollars dealing with that with that problem of worthington's counsel putting in matters into the record that they concede were never presented to the trial court in connection with the with the with the motion and then we called them before we filed the second motion and asked them what gives the lawyer who signed the brief as a and so on and arguments because of the and missionary false testimony you're saying there's no merit to that under the  did was quite clear about this which is fine for them to make today fair but the other theory was though that at the moment that that canister blew up in their boarding house they were smoking meth but that but that but that but that wasn't enough but that wasn't a fact that was ever admitted by me right and right never never right method to its counsel right so they still have to defend yes the underlying product liability case worthington has always argued that what happened is th in a in a in math and do nothing meth induced rage grab the soul in there and threw it down on the ground and that caused it to fracture and that caused the room to turn into a fireball and let's never forget that they also have claimed that they were engaging in deviant sex at the same time because they made the argument that people who engage in deviant sex are likely to smoke meth and they're and they are likely to do these types of things that's that is an argument that they made to the district court so the point is they always had a case there that could not deal with the problem that the way brad ingle breck and maria hernandez described the sequence of events which is suddenly there's a small flame coming out of the neck of the canister and there is a fracture in the neck of the canister and then suddenly you try you you drop it on the ground because you're holding something that's all that is on fire and then because gas has been leaking the room turns into a fireball that's what happened to innocent people we put on my clients put on evidence of three other people some were welders utility people who had the unfortunate experience of being around this product when they're doing their jobs they are smoking meth and the thing blows up in their face and we're going to always had to deal with the problem how we got to show meth induced rage and so they would have taken all the discovery they did was focused at this cumulative making them look bad making them look like they're crazy people frankly making them look like their low life or that was part of the defense theory let's just be blunt about it i guess they're entitled to do that but they could and he continued to tell his own lawyers and i want to say one other thing about the the e mails the e mails do not support what client what counsel told you the e mail support lawyers doing the foll questioning their client saying what about this fact how do you explain that that's a good lawyer that's not something to chide them about and go because you ask questions it must mean you think that you've decided your client's a lawyer that their clients a liar that's just good lawyer and then you have the email from mr engle breck that judge carney quoted from where he thanks council in two thousand and thirteen he said was only after you ranted it means for as long as you did that i decided i would tell the truth no matter what happened even if i got sanctioned and that wasn't self serving that was in two thousand and thirteen m dreamed that that would be produced in discovery in two thousand and six six hundred sixteen judge carney saw fit to quote that and that's a compelling piece of evidence council did their three minutes then he very much first of all i want to address the idea that we weren't harmed the ninth circuit actually in the last or said that had planed has been truthful at the outset of the to never would have had to spend so much time and money to prove that plaintiff's denials were lies counsellor did not do their job they did not do their first and foremost duty of counseling their client to immediately correct false deposition testimony and that's why we've had to spend so much money throughout this protracted for your litigation to expose their life they claim that they did the remonstrate duty they did not remonstrate deals with sitting down with your client and confronting them about false deposition testimony and urging them to correct that immediately i'm glad counsel part of a b a model rules because the district court did not apply the state bar opinion since it was in the context of bench trial however perjury is perjury but the a b a model rules that deals with false deposition testimony illustrated the same dut must take and that is if you know or you suspect that your client has lie under deposition you must urge them to change his deposition testimony immediately there's absolutely no evidence of that so counsel failed to do that job and in violation of their ethical duties under california law just quickly about application a b a model rules we don't need to rely upon it because we're not saying that they need to disclose their client it's confidential says we don't even need to get there since we have evidence that mr engel britt consented to tell the truth at least a year before trial so with that consent they are all right of filing counsel yes  there was a finding of fact by the best record that there is never authorized counsel to disclose and that's incorrect your honor in  testimony before trial even though the district court specifically found that counsel already knew at least a year before trial that there were multiple perjury is under oath so why did they wait in one of the duties the coats of model rules that was cited is counsel able to wait until two weeks into trial before so for a minute perjury on your opponent arch judicial system is not based on s bagging this is one of the greatest countries in the world in part because we have a traditional system where one can seek justice based on truth if counsel is not going to ensure that only truth is being litigated than a found ation of this court room is compromised and that's what happened in this case we have to spend the amount of money that we're asking to be awarding the in terms of sanctions because we have to see a spend a lot of money in search of how do you answer the argument of your colleague on the other side of the case that your client was given the opportunity to present evidence of what they would have done differently and that you know they're motivated to defend against the flaming canister no matter what they have to do all that they don't present any evidence or what they do differently we take issue with that this case one of the errors the district court had committed  was when he mentioned that there was a defect in our product the judge suspended the trial when mr englebert took the stand and amending to multiple perjury and suspend the trial so that he could entertain our motion for defect incident rate a point zero zero zero zero seven point zero thank you not really answering my question which is what evidence did you present of what you would have done differently if the pla on a wholesale basis deny using meth deny being under the influence the meth at the time of trial now that was critical because they were the only two eyewitnesses to the product liability accident that happened at six