i thought about something that i believe it was just this practice that fifty years ago we should not ignore is judges what we know to be true as men and as i listen to the arguments this morning was something that i learned and that is that almost all case no matter what your decision is they'll be a public policy statement that comes out of the decision in two thousand and three the shapiro versus paris valley case was considered to be one of the if not the most important i d e a case that came out of any circuit last year and in the national conferences that they have in these cases it was the lead case that was cocked about by both sides i think that this decision that you're going to make in this case is going to be even more dramatic than that there are public policy concerns but i think this conflict in public policy concerns in the end it's been in peterson versus anderson the court said it wasn't going to enforce a contract where one side was an arm lawyer but if you read the decision clearly had andersen received the money the court was equally clear would not have enforced the contract for peterson either but it was not going to enforce the contract where one lawyer hadn't even sought to be practicing law and again that's a few plutus a feed splitting piece where there's a general public policy against an attorney receiving monies just because he refers a case to another lawyer we don't have that situation here of hunt versus maricopa county and the issue that it relates to whether a lawyer can practice and represent people in the state who's not a state lawyer or a non lawyer it's not possible that that thing come up we have my affidavit on several occasions that the discussion was happening and that he authorized my practice to appear prohack b c it's not refuted and actually in early breach in this case i challenged opposing counsel s even say that that conversation did happen i wanted them to i really did because that's a flaw in my personality because i would have the post howard markel they refused to draw that line to cross that line and say you know as a matter of evidence here's my affidavit that that happened that in a footnote in a case so the evidence before you is that harold merkel was faced with this decision and he responded to it now the question is did he have the authority to grant my motion to appear privacy had a constitutional right to represent the shapiro's and that he couldn't for better or for or preclude me from appearing so what we have in this case unfortunately what the lower court and i maybe i didn't argue the case as well as i should have is there's an the first case that's different than peterson vs anderson impeachment versus anderson there are no facts that would have permitted a lawyer to accept the theory in another state that had no intention of participating in the case at all so the dynamics are exactly opposed to one another that the opposite ends of the same spectrum time just as if i had appeared in the arizona state court or in the federal district court and i made a motion to the court mary pier practicing the court said yes and there's no objection the public policy aspect i don't think there was more that i could have done i think in looking back in hindsight what would have avoided this consequence is if i had submitted the letter from the clerk's office from the northern district of arizona of ohio saying so they will formalities but they will formalities with which i could not have been done i don't train to the case so the question really is does public policy preclude payment of fees for a lawyer that in good faith relies upon the parent or ability of the judge to grant his venturing without objection and the message that will be sent the public policy is is that fine line and i think it's almost like the teacher's case you heard earlier it's really fair to say that they're going to be barred from obtaining it that which they're entitled to because we're going to draw fine line in the sand that has no meaningful meaning i was thinking of you were hearing that well i'm glad  relatively unimportant to me but it is important to all those people that fight these causes on behalf of the students and that is that then if every aspect of every case is going to be litigated to where the resources out of the pay out of the parents  tactic we need to continue this and parents such as the shapiro's who are in a unique position to to wage this battle where most are not just can't just can't make a fight of this and a due process hearing that's now nine years old  and i still believe he had the authority to grant admission under the rules that then existed and to say that he did not because the northern district of ohio which would have sent a certification saying that i was it made it properly and and not under suspension or anything rule as important as it may be more important than permitting an out of state counsel to appear who has a constitutional right to represent those clients from not appearing in other words mr mark out could not have within the law refused to permit my entry crack least there would have been no basis in fact or in law for him to do that so are we exulting form over substance when we say well you didn't get the form from the clerk's office point form over substance i'm not trying to say that and i don't think i have to say that in this case because i can restrict myself to the facts in this case which don't extend to the rule that you're suggesting would it would take effect  i don't have to go that far to make that case because in this case there was no constitution basis and in fact the but i think also doesn't this a slight difference in this case in in this particular case we have a judge from missing the rule should be abandoned and i'm not saying that this case would stand for that proposition i think though when we're relying on the good faith representations of someone who has the position of a judge who is authorizing my entry that's far different than saying that you should e i would also concur that could be an opportunity for this court to issue a ruling but on entirely different grounds and for entirely different reasons form over substance exist in this case but it exists to the point i'll talk about toward the end as to who was the prevailing party ironically most of the judicial term determinations under idea have not dealt with in arizona history the hearing officer found paradise valley the prevailing party here no evidence to after seventeen volumes of transcripts were reviewed b review hearing office was there ever any discussion of mr walker's admission status i can tell you there was discussion in my office and i will go to the court was our exposure is reduced we don't have an arizona minute attorney that's going to make a claim for attorney's fees that will far exceed the amounts in controversy briefly and if i don't get to that point our position on the prevailing party is well not expressed we decided by the ninth circuit in an idea case that buckhannon case provides you an opportunity to provide clarity but i think it's somewhat related but i want to go back to the product beachy because i am familiar with the issues but the standard rules that have been described as form over something are simple to apply determines you are pro hockey cheat feeds earned after that date maybe subject to whatever ability to ship these exhibits not prior and not until such time as that form knowledgeable at the local rules similarly there have been a lot of changes i would be presumptuous to say that there as a result of this case but at our state level at the national level and at the arizona federal significant reasons for that and it's somewhat off point here but it is instructive as to the importance of a local district court or state supreme court  but procedural rules for the mystery of the practice of law the hearing officer on of kiyo bryant determined i don't have the authority to award fees that's beyond the my authority mr merkel had no authority to do that now the assumption that mr mirco who have i have appeared in front of i would probably say dozens of times over the last twenty years what are remember that one case twenty years ago when the issue into the personnel action was whether where the arizona supreme court or a court of appeal determined that is not the practice of law when the mountain controversy constitutes thousand dollars or are we going to allow the union representative to represent that purpose here in this case under the state board of education rules and regulations it is clear th parents may be represented by an attorney licensed in the state of arizona may have here on behalf of themselves or by an advocate through one of the disability circumstances is there any ability to get attorney's fees only when you have an attorney i've met of dunder the rules of the state and it doesn't matter that if you can say that's form over substance that's the way it is and judge administrative law got every judge below and candidly i would have to say that even i have a difficulty here on my appeal based upon was taking care of that i was a bit of pro hockey cheat are you are you able to appear an advocate on behalf of these parents if they want you there you're there under this administration set of rules are you there as their attorney subject to the rules or regulations particularly as could have been an issue here the ethics prescriptions of the state bar as owner that's another issue are you there as an attorney that would require if there are disputes regarding the conduct of the hearing and to allow you to go to a judge to resolve those disputes we didn't have that ability to do that here though that would have been the difference and the difference also is that you would have had exposure of her attorney's fees to candidly might have might have resulted in a different result now as far as this case being of great great great significance i would have to defer notwithstanding my role as an advocate that a l j by the federal district judge to act in a judicial capacity as opposed to the initial hearing officer and while it's not definitive because  administrative hearings or a view and based upon their being subordinate i believe to the arizona supreme court that then would constitute the practice of law but i am not entirely sure but i believe that should be the case at that level and that was not always the case and all of those caring officers like the initial hearing officers must be czerny's licensed in arizona and it is true as in this  case judge bryant they do not believe they have the authority in any instance to award fees and the ability to award these you know under the statute when you bring an action that means  now this gets to the more difficult part of my case we've dealt with the more difficult part of mr walker's case and that is how is it that i can say even under the no or review standard that the plaintiff shapiro's in this case were not the prevailing party and that is after seventeen volumes of transcript you know hundreds of thousands of dollars now the tourney lowest could not was not invited to attend the ip meeting by the school district and the parents under a very disputed fact circumstances did not were not able or or could not attend that meeting and i will happen i am pours for the purposes of this to assume the findings of the district court that that was our fault and we lost ok but let's just take it th officer then said that for the thing that used that ninety percent of your time on the school district could not provide me a free appropriate public education because they did not provide and now parties you're going to start the square one everybody's going to be there and we'll go forward with the ip meeting for the next year guess what happens parents as we're not going to play we're going to stand our kid to this school they took the one year payment kept that child there year after year after year under the hope and the expectation that they would win on the appeal they didn't they got one year reimbursement yet were required and expected to pay close to two hundred thousand dollars in attorney's fees when the hearing officer after seventeen volumes of testimony in the most expensive far cased in arizona special ed in history made no nobbled findings no novel decisions essentially it was a case where we lost on procedural grounds because the teacher in st louis missouri was not invited to participate and the parents said we couldn't make it that day and it's our fault that we went ahead without them but the ninety percent of the time was straight on you people in arizona are in pay two hundred thousand dollars and claim that this is the greatest special ed case of all time i think the record speaks for itself thank you thank you i think that we really need to get back to what's the reality where the actual facts in this case rather than the representations of counsel which i really take umbrage with if this quote will only read its on its case in the underlying case you'll see that what he represented to be true was just not this court as the court below found in the original shapiro case there was a subset of defects in the program and the ip that was offered it wasn't about some teacher this or some procedural flaw there was substantive i think it's incredulous at this stage of the proceedings that he would come up here argue and say you know what when this kid when this issue of pride he came up we talked about this in the office and we decided to keep our mouths shut as this thing was going on and we talk about being an officer of the court do we really i mean i believe that that even makes their argument for public policy reasons even weaker than it was before these oral arguments to suggest that he could sandbag mr mark out when everyone else being in office of the court and that's saying that he believed that there was some procedural defect but he chose not to raise and you know he chose not to r i can only say if you believed that he didn't have a right to well for me rather than you if i believed that the lawyer didn't have a right to represent those clients then i think he said that you didn't have to be a lawyer to be there so what's the object i'm sorry i'm sorry i didn't finish them and ultimately be responsible for attorney fees somewhere down the line then i think that's a pretty big gamble to take as a lawyer by saying i'm going away whatever right i might have to his presence and i'm going to leave this issue like quietly and see how this pans out if we lose the case we can raise it later and if we don't we just never mention it i don't know that i think that you could do that as a lawyer both as an thinking at the office that somewhere down the line they may or may not have to pay attorney fees but the question is whether you're on the clock you're not on the clock or purposes of the shifting should in the case turn another way and i'm not sure that the reference to counsel as an officer of the court is relevant because i don't think that issue is relevant to the court in its ultimate substance and when it became ok that's i think that's what i have no idea what i meant but but i really i don't see how that relates to anything in this case i'll move on anyway but the other part of this is it's in the original decision this court determined that our appeal on the motion for put was smooth if we give credence to that opinion and we believe it to be correct then there was no other basis for us to have prevailed other than on the ultimate free appropriate public education this case started in august of one thousand nine hundred five and we could only present one year request for reimbursement that was all that we were entitled to at that time and i see no other alternative to that i also believe that there was something said i don't know about this alas you know this but i know if i was the subject of a supreme court case in my state and to the extent that that was misinterpreted as something more our position is was annoyed has been that we could do nothing to prevent the parents in hindsight i think you know this