personal relationship it couldn't have been more of a personal intense like the relationship covered business covered personal covered marital covered family mr one person owned company with one or two assistants it is not a corporation yet there was some two million dollars of legal services and hundreds of legal matters over this approximate ten year period this is not hartford insurance company has got hundreds of employees that are strange in jobs moving coming in going it's all pure business i was unable to find any reported cases that even come close to the situation we have here and opposing councils not come up forth with any either given the time intensity the nature of the personal and the business relationship and i would submit that one of the reasons is that few attorneys do with the attorneys in th did they don't allow themselves to represent a successor client against their former client after this kind of a relationship what we have here for mr whitney is what some people would think would be a litigators dream trial attorneys spend a lot of time and money many spend a lot of money on learning about the witnesses they're going to cross examine they spend a lot of money to learn a fraction of what mr whitney knows mr whitney knows how to push the buttons you know sort of push and pull this with this you know secrets you know this confidence this the intangibles those are the kind of the tangibles the demeanor of the witness as we all know it's every bit if not more important than the substance of what he says the trial so is your argument that there is a substantial relationship between the prior representation and the current case based upon the comprehensive nature of the prior relationship yes but that's not all i believe that there is actual post that's one test that's the one test that if if a substantial relationship is true and between the president the former case there's a conclusive presumption that the court that the doesn't add that to later in the discussion but presumably there has to be some sort of a connection and but it doesn't have to be a substantial relationship the problem part of the problem is if it if it's simply  you are appropriately concerned about if it were simply the intangibles then you would never have the possibility of subsequent and lawyers can i can i tell my lawyer all the time bare my soul and i have to worry it comes back to haunt me later that's that's a big factor and it's not just mr nelson or nelson's company relationship concerns legal issues that were not exactly similar to that in this case i can't say there's no evidence below that there was a quote social relationship there was a professional relationship intertwined in business comes up legal matters surrounding family and all these matters so i can't say there's been no evidence submitted and i'm not aware of any that there was a social relationship  substantial relationship test not to the underlying rule the actual possession of adverse information and and yes this there's many court the court below was too narrow in looking at the at the similarity cases saying that that this is a civil rights case and there was no civil rights cases before which unfortunately was based on confidential information given by mr marshall went into the court that there was no such cases before putting that aside i think that's a too mechanical just ten years ago how if they are if the relationship lasted for ten years as my understanding from the record and then years of followed by a period of ten years where there is no representation the most that the lawyer will know of any import is what the client was like ten years earlier not currently he thought it was important to this case important enough that he put it in sequestration to try to win a motion in this case so i think it's absolutely pertinent he also talked about that nelson submitted change orders of such scope and magnitude called into questions plaintiffs veracity and accuracy in the bidding process that was told to the court below to try to to prove so held the county prevail on a on a motion the only way that was learned by mr whitney was from his representation this mr nelson never had a contract with the county to put a change order request on the when you weigh it when the court the supposed to weigh this you're weighing the public's confidence and trust and lawyers your way nelson's right to confidences with the county's right to choose among thousands of lawyers that there been twenty years is there a line in other words another line say again no clear line there is no clear line and so what you have to do is make a judgment balancing the information that the lawyers falsely gathers during the course of what is a needed lee a very close relationship and the case that is currently before the court and otherwise there's no absolute rule but at the same time there is a factor that should be considered yes and the county here in choosing among all its lawyers to task chose to use the two lawyers who had represented nelson who had not represented the represented for ten years and apparently by great number of matters so you've got to know that person extremely well i don't care whether it's a social relationship just got to know them very well and i personally can't imagine sitting as far away as i am from you having represented you for ten years putting aside the legal standards of review and substantial evidence tested directly after the court's question this civil rights action has no bearing on mr nelson's or his company's integrity it's will yourself are well that certainly was an objective if the client wanted that and if how it's not question of what the client wants i mean it's a question of professional integrity that's what is the question  the county but i will represent to the court it's a simple answer whether the court of subsidy or not i can't say we're in a very small community there are very few lawyers in our community that handle these kind of cases the county has a tight fiscal budget and they outside the record so i feel compelled to answer for ten years we did not do it ten years changes a lot mr nelson's credibility the way they do business isn't relevant in this case and that's what judge quite often i want to get back to the legal standard before you and i feel that you've taken umbrage with this decision we made but at some point the county of president wanted to use our firm in this kind of matter they wanted to use marshall whitney this is an area that i specialized in they wanted that t had turned down cases year after year this one seemed very discrete because it all affects how did the county act the county discriminate against mr nelson the trial court did not apply the wrong legal standard the trial court balanced issues of relevance direct relevance of the prior representations we had to the issue before the court and the court said like in johnson the passage of time mate the only potential relevant issue profit damages totally immaterial because it's so much happens in the construction industry and in the business that whatever profit information i could have possibly remembered and would have presumptively known couldn't be material ten years later and then johnson the interesting thing the court found there is a lawyer represented if the family members and then took one side in a divorce after knowing the family's financial condition following johnson to its logical extension in this case had i represented mrs nelson in a divorce against mr nelson johnson would be essentially on all fours i didn't do that i credibility and things like that are an issue but not really in this case i made that determination getting to the issues that i respectfully believe are before the court which is did they meet their burden of substantial relationship it all goes down to one thing did they under ferris just this and all those cases show there was any direct connection between all those years representation overbetting contract disputes and personal items another business matters is that have any bearing on one thousand nine hundred three case where the focus of the case the central issue is that the counties staff the counties decision makers discriminate against mr nelson let me let me turn it to the appearance of some impropriety what if you get into the case and what you don't know is an issue now becomes an issue don't we risk that we will have a waste of resources violation of interests of judicial economy to allow the potential for that to occur and have to start all over again i think that's a very good question it's a troubling one in one respect because you never know entirely what's going to happen in a lawsuit like i grant that but i don't see that happening in this case if it did then i would have a new ethical issue they would have a new ethical basis to do so the evidence they offered doesn't implicate that at all all they say is the intangibles that's an automatic recusal role as the justice points out if it's the intangible issue that every time a client says they got to know me they prepared me for a deposition that klein has automatic disqualification that lawyer ever again and totally unrelated cases but to answer your question again and repeat it if that issue surface their statement on the record i think the court had to presume it was correct but the fact was i wasn't taking that deposition i don't have to take the deposition what has to happen is the clients ask me to defend them in a serious claim which we believe is based mostly on an administrative record of the county's past actions in treating admitted mistakes in a public but this isn't about how they did they said we made a mistake you grant relief to everybody else why not us should we be careful if you make that statement i wasn't going to take a deposition that you now have the benefit something that should be of concern to us well the answer is i don't think whether i take the deposition or not should be a basis for the court's decision because you shouldn't accept that it's not in the record i think you should presume that get any lawyer in the case and i firm could take that deposition if there's a rest i don't believe whether i take that witnesses that position or not should make a difference in this case because if if a lawyer is told if you've represented this witness before and you can push their buttons or you know where they're credible or not that's automatic that's all a client ever has to say i appreciate the candid questions and if i have when he says that there's no integrity of nelson issue here yet the county has made it an issue it's wanted to take these depositions has proceeded ahead with discovery as if integrity and all these other matters of sub contracting are issues