current congress had specifically to say so congress did not it does not apply to counsel consequently it is embodied in the case law and where we were and that was my motion to oath or amend judgment i was highly within twenty eight days asked the court following the rule that congress needs to explicitly include coun was the original preemption provision that actually as i wrote to the earlier court caught me in one thousand nine hundred and eighty seven it ruled out bad sales damages under mississippi insurance law and pointed out  it's my understanding i coextensive your honor if you look at your record versus jenkins brickyard that's exactly what it says if you look at him longer as i am along i was never given any hearing or notice that i would be sanction for unprofessional conduct order and liberties favor one of the freeman factors all mention parties and i think it's important for the court to take a quick look at the horrible consequences that are spelled out the catastrophic consequences city by the th circuit and then surely cannot represent his client if you cannot argue the case and that's essentially what they're saying it immediately creates an automatic conflict it creates some sort of obligation for the attorney not to make an argument that he doesn't absolutely know will succeed which is directly contrary to the ethics rules of this court and of the florida bar the florida ponces the attorney must make that conflict that's based on the law must make that argument even if the attorney believes it won't succeed he is under no obligation or she is under our plea haitian to make that argument now i think the court was misled by liberties not siding  ethical rules in the rules of the florida bar since liberties council made that exact same motion into their with the one last the exact same motion knew it was on am on the basis of them long and failed to notify the court even when it was apparent initially that's all of them do not know what i call it to the court's attention the court has liberty proudly pointed out deny that motion within we want to hours business time that's the way it will let me ask you let me ask you a question about the conflict issue that you raise which i think is a significant and important issue so when the district court assessed fees against you that automatically create a conflict between you and your client ri break caps the two questions when did that break out and when did you stop representing the client after he had her nd question why is our docket show that you continue to represent the client that i  right me if i'm wrong but your position was you were healed against liberty then they cross appealed to try to get some fees assessed against the former client your for exactly and they have to reveal doesn't really have anything to do with whether me ask you another question that relates to one that judge wilson ask which is about the district court's ability to assess fees against you through some other route let's assume that i agree with you about your interpretation of a resume the insurance companies argue that there are number of other statutes that would allow these he's to be assessed against you what do you say about that argument they never asked for them they waived them and i didn't get any hearing or notice this is exclusively on the apple e as well as in the cross peel against miss pier let me begin by saying that the st issue in our grief relative to jurisdiction timeliness is not in play any  by mr sullivan when we moved for fees both in the district court as well as the appellate court because this case has already been here to the th circuit and it was affirmed on the summary judgment  cases you now reef the jinx case on case the kashmir case that make reference to the point that you cannot bring up an argument for the st time in a rule sixty motion that is not an appropriate vehicle if you had the opportunity to make the organ meant before judgment or an order is entered you have to bring it up just as mr sullivan could not that point he was a party in interest that and he had the opportunity to respond to those issues the president and his peer how is he supposed to argue that the fees should be assessed against her instead of him well he can argue that it shouldn't be as assessed against either of them want to do that though did he say that they should be assessed and all he did what he said is that they shouldn't be assessed against mr peer and he never raised the argument that they can't be assessed against him at that point when we requested feast we asked for them against miss salt mr sullivan and mr peer if mr sullivan wanted to make the argument that fees are not appropriate against either of them that talk about the inability to assess fees against an attorney on the last the statute express lee says so are civil rights cases there's the crescent city case which has a case on four hundred and forty seven dollars c regarding removal but both of those scenarios relate to statutes that are very different than the arista statute and as we discussed the now all cases relating to civil rights there are very different civil rights cases when it relates to fees are very specific in the standard to be applied that fees are general  know i think for the purpose of this that's not a question that really applies because the arista statute doesn't talk about fees against it part it talks about fees to a party which is important distinction in the roadway express case supreme court case that mr sullivan cites to and refers to and that the am long cases reliant upon the supreme court was very specific in pointing out that in the civil rights statutes the legislative history talks about the intent to allow fees against a part now against a party is specific to against a litigant not against counsel the arista legislative history does not have that don't believe that a hearing is actually required under the inherent authority or section nine hundred and twenty seven only the opportunity to respond is required that opportunity to respond was provided by the court i'm is not something that we briefed i can tell you from my recent briefing in a different case that there is a far to state that what that means is that there must be the opportunity to be heard  factors is whether there was any bad faith involved which this court expressly held there watts and the case law as cited in all reef and in fact as as in  cited by mr sullivan talked about that that is an objective standard not a subject of bad faith standard so the object of standard used would in attorney of reasonable ability kno that the arguments they are making are without basis in law under the beauty of the result under your view there is a statute could the district court sanction a witness and impose attorneys fees against a witness mean more specific hypothetical let's say that the plaintiff hires a doctor and the doctor says that the plaintiff is fully disabled but the doctors is a liar and was lying and so all the litigation will arose out of this law that the doctor told and so at the end of the year is a litigation in the district court so you know what the doctor needs to pay the insurance company's attorney's fees well the difficulty with that is that there are no witnesses in a recent hearings and then so let's talk about let's say that the person who works for the insurance company that the knowledge is whatever claim is made against the plan does it because he is in bad faith person at the insurance company pay the attorneys fees for the plaintiff i don't know that they could hold the individual responsible but certainly the insurance company yes so why would they be able to hold the insurance company why would they be able to hold the individual responsible well here the distinction is true talking about what goes into a claim decision as opposed to what tactics were used in the litigation and what the statute and  they look too bad faith and people say well we say not as a medical that i mean this just make it worse where the person who works at the insurance company knows personally the plaintiff decided to deny this claim with no good faith basis and then well they're probably not opposed but you know it is instrumental in making sure that the insurance company fully defends this bad faith denial that this person at the insurance company made happen well let  let me simplify it for you were think you're going with this and that is if i ask counsel for liberty a lot of a certain affirmative defenses that i know to be improper yes i believe that the court can assess fees against me for my conduct in the litigation for my relative bad faith or the five factors that the court analyzed which is part of part and parcel of the  way one determines what is whether fees can be assessed and i would note that those five wrongs address what the supreme court recognized as exceptions to the american rule good we cited in our brief that the supreme court recognizes three exceptions in the american rule and those exceptions are expressly addressed by the five prong test this court blind and this our answer brief and cross appeal brief was served by e mail and posted and u s postal service to mr peer i received a phone call from an attorney in fort lauderdale against whom i've had a number of other arista cases asking me about ms appear because she had consulted him for representation he ultimately agreed to represent her relatives who were unrelated claim for long term disability benefits but expressly told me that he was not taking on representation relative to this process he'll so there's no question that i see we've lost j proceedings was aware of the cross appeal chose not to respond to it and so there would not be grounds on that basis for not granting the cross appeal i would note that on the cross appeal though there are two separate findings by the court in two separate provisions of the order that are subject to two separate standards of review the st is that the defendant is entitled to its fee that is subject to an abuse of discretion standard the nd is that mr sullivan and not ms peer should pay those fees that is subject to  there was insufficient notice or hear that would not alter the finding that liberty life is entitle to receive its seats and at that point the court's finding that it was going to exercise it discretion to award the fees against mr sullivan instead of against ms peer would be error and would either need to be reversed so that the fees or pay a bill by ms peer or at the very least remanded for the district court to be able to look at its error or relative to what it could do in terms of who pays those fees and make a determination as to whether it's still believed that somebody ought to be responsible for those fees because after all the court did expressly find that the defendant and the participants in the plan should not have to pay for issue about trying to resolve what's going to happen in the future was not right and didn't present in article three case and controversy and this court has already ruled on that it's a law  issue not raised at the district court level if it involves a pure question of law and if refusal to consider it would result in a miscarriage of justice miscarriage of justice being defined by black's law dictionary as a war against me so you have the discretion to consider whatever you can switch to consider this is if your question about law i did argue and i think that maybe this will answer some of your questions  judge will some on document eighty nine a seven in my motion to alter the judgment i specifically quote of the supreme court which states that departures from the american rule require whatsoever to protect insurance companies i think that's about all i would have to end mr further questions mister i believe was democracy as comments didn't raise anything new that we hadn't heard before and i'm with you have some questions i