of virginia mr farwell are you one willing to wait until you get a decision why i think that the decision in this case is is unfairly predicated on the exclusion that's i don't believe that's correct the the prick the issue with the issue as i understand it and i might have to defer to you and just obviously the there was there was a series of lawsuits one to three of myself and of the o e d they make a record that's not quite quite so simplified oversimplification of what's required when the when the only d gets a complaint from from a client they send out a request for information cauldron r f i there's all kinds of litigation with with with with this kind of this kind of inquiry the inquiry to me requests that i produce information received including that information which may justify or exonerate the alleged actions of the registered practitioner or mitigate the seriousness of any violation that's what's required in terms of an interpretive decision i as i understand a thirty seven c a four eleven point twenty two d so the record as i understand it which goes to the committee on discipline must and be inclusive of investigator at this phase of the process he doesn't make any determinations he is a collector of information so the but the universe of information that he has to collect is defined by  mitigate the seriousness of the charges now in this case of go to the chronology briefly this has been going on since two thousand and twelve outside of this environment in two thousand and thirteen malpractise in the sun just before there was an october twenty third teen in may of twenty fourteen i got a bar complaint with the florida bar and a complaint with the o e d identical issues identical fact identical complaint but i guess i'm still back at the question a judge like your asked you initially which is your argument to us seems to boil down to the investigation w prematurely and did go from were all of the fact findings in the florida litigation which were favorable to you could have been included in that record i understand it is that is that your argument my understanding your as part of including all of the evidence it should have but i thought his question to you was but why couldn't you raise exactly that argument after if you get a final decision by the p t o because we get lots of cases in district court where the district court the petition was denied by the district court because i didn't explain how and why one of the exceptions to finale of exhaustion but that's in page six of the opinion us two hundred if you read the exceptions the exceptions to exhaustion and final order appearing on page two to twelve two to thirteen in this case i fall within the exceptions and that's and that's the argument that the supportive information was in the record before the district court it appears at five twelve to five thirty five and the and the discussions in my brief at pages twenty eight thirty the the information which i relied upon is is the declaration of exhibits appearing in my appendix five twelve to five thirty five that that declaration included a copy of my of my my attorney's motion to amend the a from defenses compliant with the rules thirty seven c f r eleven point thirty six d they took the position that lie my firm a defense had no nexus to discipline in other words it wasn't related to an allegation so under my understanding of the law if it's not related to the merits then it's collateral a collateral matter that cannot be subject to meaningful meaningful judicial review is subject to an exception to you would not have been able to read that's great and there's one more point that i want to make which is very important ok and it's i didn't raise it and didn't raise it initially in my book that i missed the i missed the the legal characterization i in a bait and i didn't request a i wasn't attacking which is very important i wasn't attacking the merits determination i wasn't i was indicating that this that this was a collateral attack on the proceedings i just want to reset the clock now why would i want to do that that's a real good reason for that because if they have to reset the clock there's a substantive effect which is beneficial to me then they're going to refile anything this goes back to two thousand and two the nonsense in this  hit did here is they prematurely concluded prematurely concluded their investigation before the district court had an opportunity to make its finds rulings so they excluded from consideration will absolutely have the opportunity to raise all of the objections that he had to both the o e d investigation as well as to the underlying disciplinary proceedings that are still ongoing in district court through a section thirty two complaint if he is ultimately just determines to be suspended or excluded what is the current status of his case in new york agency it is currently on a motion for reconsideration of the p t o director's final decision i believe that that motion for reconsideration that mr farrow has submitted and he has a right to under the regulations is either currently being briefed or has just finished being briefed and therefore now it would be in the hands of the p director to consider that motion and render a decision on that and then once that is finalized if the final decision which currently does recommend or does impose an eight month suspension  actually consider this the other thing that i would point out of curiosity why why didn't the agency just sort of give in to him in this regard earlier on you know this record sometimes let everything in right because it's easier but like this it's even more important because there isn't an opposing party that needs to be protected meaning it's not like mr farrow is up against a defendant and whose rights you have to worry about if you let something in here this is all only about him so why did you just let it all and then consider it all well i would actually have two responses to that your honor first is i would actually disagree that there is no opposing party in this case because  is the public the u s p t o does have an obligation to defend the public against partitioner say who have violated the rules of professional conduct that are clearly set forth in the regulations and how is the public going to be harmed by you living in all the evidence about whether the exact incidents that your considering punishing him for are or are not affected by the florida litigation over those exact same incidents absolutely your honor and i think that re second response which is that those considerations of what happened in the florida litigation actually were raised in the disciplinary proceedings below i think that mr fair conflates two things incorrectly on the one hand he conflates having the following an opportunity by on his part to have made whatever argument he wants on the basis of that evidence that's at all been considered by the that has your honor that was considered in both the l g s final initial decision as well saying that now or this court but that's the only issue that is that's the issue before the p t o that is the issue before the p t o but that is not the issue here on the stand that's not the issue here that's the issue before the  one thing that i would emphasize here is that mr ferris fundamental objection to what happened below occur is that the only the investigation itself did not consider what happened in the florida litigation and that is that the florida litigation was ultimately settled but what mr farrel continues to fail to address the fact that he's asking for an impossibility the o e d investigation completed in may of two thousand and fifteen but the florida litigation didn't settle until september first two thousand and fifteen over three months later and the other thing that mr farah fails to appreciate is that the o e c d investigation is actually limited by regulation to have to be completed within one year  and that there is an opportunity if mr ferrer had so expressed it to toll that that one year period but he never did so and so this only investigation  fact that the only the investigation might have resulted in a different result but we also don't know that but in order to actually but he can raise those arguments later at the conclusion of the disciplinary proceedings i know you understand you your organization keeps looking at the question of whether he should be punished for malpractise do you understand his frustration at the fact that you are continuing an investigation that on its m sounds like judging it of course this is in front of us but it sounds a little spooky what do we do to help them and they say well your honor i think that i would want to clarify one point in your premise and that is that mean that you also have a finding that there was a violation of the rules of professional conduct and vice versa the only trauma in the sense would suggest that no i guess agencies don't engage in that activity do th that that may be context specific as to when there may be a common sense employed but in this case there was absolutely there was absolutely a consideration of the malpractise suit below and that was raised before both the l j and p t o director and that mr farrow would have the opportunity to raise that argument yet again which he did in the motion for reconsideration i believe and that he could raise that objection again to the district court on a the bottom line here is the bottom line is and miss this time i believe misstated the issues the that the issue of whether or not the determination to fill just a court in the malpractise case a binding on the on the on the bar is is incorrect there's no such doctrine of defensive issue preclusion the cases that it is the supreme court case the sturgis case the sturgis case basically