unusual case in that where we have a situation where the money that was clearly belonging to my client was stolen by an attorney and transferred to another party who while that party did not know of the you know that the money that was being given to him was stolen was on notice how the the with the investment what they had to do send a letter saying we're not going forward with this deal send us the three hundred thousand dollars and that's exactly what they did in january of two thousand and eleven they requested the return of the money the money was not forthcoming nor was there any explanation unlike other kinds of escrow disputes usually have somebody is holding an attorney is holding  escrow account in this a demand for the payment of the escrow if the if the attorney has a legal basis for withholding the escrow or his client does they state so our how does this show that they client well i think if we if we that the key in the chain that's missing i think the way they knew is by circumstantial of the district court in which the district court says that b m w has money was returned but that's incorrect b m w s money was never returned the money is fungible it doesn't have to be money from  then he pays them back with money that happens to be derived from one of his other thefts but why does b m w have any reason to think that that is anything other than that one giving  w restitution for what they what they want i think the timing of the payments indicates it so we if we go to if i may just ok for a second letter to exist years orders now and then we go to the next the next next document which is on a one hundred four where which is the next day mr newton not only demands that the money be return but he demands that mr temple and state quote every day beginning thursday october november eighteenth two thousand and eleven through a ten through including january twenty fifth two thousand and eleven three hundred thousand was being held in the trust account of taplin associates for the benefit of b m w and no part of the three hundred thousand had deployed for any purpose even if returned at some later point  spent on for his own purposes misappropriated the money in the escrow count and then he paid them back with money from his own assets there would be no problem now that would that would be a problem i would be a national guess i would have your problems would be a violation the minute and it's true would be a violent find it's a violation teflon is a bad guy isn't prizm great but that doesn't mean that b m w is not intitled to be repaid three hundred thousand dollars an attempt one had an inheritance or some money need earned and he paid back that would be no problem here i agree with you that would but here the problem was the nub of the problem is that the money that was repaid was clearly stolen money why do you use that that's the question if we know now that stolen money that was stolen from your client it came from the proceeds of one of his other schemes and for the question is what makes that clear to b m w how do they know why are they on any kind of notice that they're not being repaid appropriately by up one because there was never and b because they got a release from mr taplin and they never followed through on their requirement that mr teflon assure them that the money had not been taken and he has the problem why do they care ultimately it because because the new york code of rules and regulations requires an attorney once he's on notice and the files are grievance against the attorney for not reporting up one but that was it and remains what is it that indicates in any way shape or form that b m w was aware that this money came from a for any fraudulence last source at all let alone from your client we stated in our complaint that they had that b m w was on notice that this man with this money would be coming from another transaction we stated that upon information and belief and we believe if every we were given the opportunity for discovery we could establish that mr temple and said to be m w that money was coming out soon and was coming from another transaction was was coming from another transaction suppose he just sold the empire state building to somebody and got money so forthcoming from another transaction he clearly had invaded escrow committed a crime and had to clear the victim of the crime b m w is the victim of the crime what what is there that says that b m w was aware that the proceeds from which they were being repaid was from some independent wrong act by up one against your client or against anybody else i don't think it matters if that's in the wrongful act if they know that they're escrow has been taken and then it's replaced that's a violation and when you're comparing two parties in the case law that we've cited in our brief esko cases the trust cases say that if you can trace escrow money from one two and even to an innocent third still this money for mr cohn and so when you're balancing two innocent parties and you're looking at well we here we know clearly this money was stolen from mr temple for mr cohn clearly traceable asset that funny enough it's not fungible because it's just laid out in the bank records that that three hundred thousand dollars of mr combs went directly to b m w i would say this case would be in a different situation if discussing the required element of both of these claims and i think the court's questions covered many of the points that i was going to to get through but i want to take this back to judge pope's decision and she held that on the face of the  principles of equity and good conscience do not favor to sportsman she got it exactly right and nothing that was raised in the motion papers and nothing that was raised in the appeal papers which are substantial departure from the motion papers changes that result to report potentially the misuse of escrow money they let you know why should they have a chance to pursue some discovery about really what was known at the time given the b m w is making these threats that there been a file ation of their escrow promises by a lawyer had they reported earlier maybe the equities would look different and that mr cohen the transaction wouldn't have taken place is not enough for them to get a little farther than they go cote also noted that that was not entirely clear i think it's quite unclear it's what i might describe as a word salad not entirely sure what it what it means but in judge code looked at th sentence in her reaction and this is in the smile consideration motion is that even if one were to accord the construction the cohen argues should be accorded it wouldn't be enough to require b m w to hand over the generous construction if you look at the communications that are appended to to the to the complaint it's a series of e mails none of them reference mr cohen none of them reference any funds that were being held by mr tough on on behalf of anybody else it's a b m w is trying to get its money back and to one says we will repay you your money that's what those communications show so none of them can be construed  lawyers i know that they referred to reporting mr tupman in the e mail but you know this was an issue that was raised after judge code at the site of the motion to dismiss it's not something we've really delved into and i don't think it really matters here when you have you know an entity that receives not a penny more than what it put in the first place and had a contractual right to receive them my question is whether the were unjustly final point in response to this this whole line of argument you know if anyone would have known about mr toughens questionable phone a few days it would have been mr potter and we had a couple of cases that we cited to our  i'm happy to discuss the other two issues if the court would would like me to but i'm also happy to yield back my time and rest on the papers so if there are any questions i'm happy to take  know i can turn it back over very briefly your honor i think it's important to keep in mind as i'm sure you know you realize that this is a motion to dismiss and we haven't had a chance to have any discovery at all and the expect to find that mr temple and promise them that he was going to get money from another source ok in this case mr conan ok and it never says mr gower right just says another source i don't know i that's i would have to explore that on the but there were a number of telephone conferences between b m w and you think you might find in the record mr say that but i was being but but frankly you'd be shocked if you read my deposition of vesta tappan and what he admitted to which contributed to his being sentenced  i think it goes first of all an attorney acts as an agent for his client so yes but this isn't a this is an obligation that is personal to the attorney it's not the attorney's doing something wrong at the behest of his client ron client you know want to have an obligation to report mr taplin and the client said no i don't want you to do that what we would we would be in a situation with a client knew that it was instructing his client his lawyer to act in a way that's contrary to law predated the current one that not disputed actually what he's alluded to the fact that that mr cohen was aware that mr taplin had had asked him for assistance because he was in and that the money was coming from someplace else what you are what you are hanging your hat on that is not that they had any reason on earth to think that you have any plausible basis for alleging that they had any reason on earth think that one was stealing the money that he was repaying them it just goes to what you're saying really is you stated the cause of action because the fact that they had reason to believe that teflon had violated his obligations to them that the attorney was required to report under his ethical obligations that means they weren't entitled to take the money that he gave to them even if they thought it was coming from his own legitimate resources that's your argument right away with a slight modification i'd like i look very much like your analogy with a cartoon character coming with a bag of money but he doesn't come with but but why why is there in that analogy it says property of chase manhattan bank nothing's as property of cohen property of anyone but one right in the money that he returns to the only thing the only way i can establish that would be depositions and which case i think i can establish if given the chance that they knew imagine that that's what's going to be learnable i think the think it's paragraph forthcoming based upon the pending an upcoming closing with cohen from forthcoming based upon a pending and upcoming closing was cohen so you know for a fact that they at this is what they were told i believe so and i need i need them as ition to nail that down i mean because it's not it's not in the was promising people that yeah i'm going to pay you back i'm getting money from a closing involving mr kahn so and so i have that that's that's that's that's that's a credible theory and i need