" in the Chicago case the plaintiff is
12 really not Ted Bernstein, although he probably
13 nominally at some point was listed as a
14 plaintiff in the case. The plaintiff is the
Simon Bernstein 1995 irrevocable life insurance
16 trust. According to the records of the
17 insurance company, the only person named as a
18 beneficiary is a defunct pension plan that went
15:15:45 20 THE COURT: Net something net something,
22 MR. ROSE: Right. And then the residual
23 beneficiary is this trust. And these are
24 things Simon -- he filled out one designation
25 form in '95 and he named the 95 trust.
THE COURT: But there's no paperwork,
3 MR. ROSE: We can't find the paperwork.
4 Not me. It was not me. I have nothing to do
5 with it. I said we. I wanted to correct the
6 record because it will be flown up to Illinois.
7 Whoever it is can't find the paperwork.
8 So there's a proceeding, and it happens in
9 every court, and there's Illinois proceedings
15:16:11 10 to determine how do you prove a lost trust.
11 This lawsuit is going to get resolved one
12 way or the other. But in this lawsuit the 95
13 trust Ted Bernstein is the trustee, so he
14 allowed, though under the terms of the trust in
15 this case, and we cited it to you twice or
16 three times, under Section 4J of the trust on
17 page 18 of the Simon Bernstein Trust, it says
18 that you can be the trustee of my trust, Simon
19 said you can be the trustee of my trust even if
20 you have a different interest as a trustee of a
21 different trust. So that's not really an
22 issue. And up in Chicago Ted Bernstein is the
23 trustee of the 95 trust. He is represented by
24 the Simon law firm in Chicago.
I have never appeared in court. He is
going to put in all kinds of records. My name
2 never appears -- I have the docket which he
3 said can come into evidence. I don't appear on
4 the docket.
Now, I have to know about this case though
6 because I represent the trustee of the
7 beneficiary of this estate. I've got to be
8 able to advise him. So I know all about his
9 case. And he was going to be deposed.
10 Guess who was at his deposition? Bill
11 Stansbury. Bill Stansbury was at his
12 deposition, sat right across from me. Eliot,
13 who is not here today, was at that deposition,
14 and Eliot got to ask questions of him at that
15:17:27 15 deposition. He wanted me at the deposition.
16 He is putting the deposition in evidence. If
17 you study the deposition, all you will see is
18 on four occasions I objected on what grounds?
19 Privilege. Be careful what you talk about; you
20 are revealing attorney/client privilege.
21 That's all I did. I didn't say, gee, don't
22 give them this information or that information.
23 And if I objected incorrectly, they should have
24 gone to the judge in Illinois. And I guarantee
you there's a federal judge in Illinois that if
I had objected improperly would have overruled
2 my objections. I instructed him to protect his
3 attorney/client privilege. That's what I was
4 there for, to advise him and to defend him at
5 deposition and to protect him. That's all I
6 did in the Illinois case. And that is over.
7 Now, I am rooting like crazy that the
8 estate loses this case in one sense because
9 that's what everybody that is a beneficiary of
my trust wants. But I could care less how that
11 turns out, you know, from a legal standpoint.
12 I don't have an appearance in this case. And
13 everyone up there is represented by lawyers.
14 So what we have now is we have this motion
15:18:36 15 which seeks to disqualify my law firm. We
16 still have the objection to Ted serving as the
17 administrator ad litem. And I think those two
18 kind of go hand in hand.
19 There's another component you should know
15:18:50 20 about that motion. But as I told you, our
21 goals are to reduce expense.
22 The reason that everybody wanted Ted to
23 serve as the administrator ad litem, so he
24 would sort of be the representative of the
25 estate, because he said he would do that for
2 THE COURT: I remember.
3 MR. ROSE: Mr. O'Connell is a
4 professional. He is not going to sit there for
5 free for a one-week, two-week jury trial and
6 prepare and sit for deposition. That's enough
7 money -- just his fees alone sitting at trial
8 are enough to justify everything -- you know,
9 it's a significant amount of money.
15:19:27 10 So that's what's at issue today.
11 But their motion for opening statement,
12 and I realize this is going to overlap, my
13 other will be --
14 THE COURT: Which motion?
MR. ROSE: The disqualification.
16 THE COURT: I wasn't sure.
17 MR. ROSE: I got you. That was sort of
18 first up. All right. So I am back. That's
19 the background. You got the background for the
20 disqualification motion. This is an adversary
21 in litigation trying to disqualify me.
22 I think it is a mean-spirited motion by
23 Mr. Stansbury designed to create chaos and
24 disorder and raise the expense, maybe force the
25 estate into a position where they have to
settle, because now they don't have a
2 representative or an attorney that knows
3 anything about the case.
4 MR. FEAMAN: Objection.
15:20:11 5 THE COURT: Legal objection?
6 MR. FEAMAN: Comments on the motivation or
7 intention of opposing counsel in opening
8 statement is not proper.
9 THE COURT: I will allow it only -- mean
10 spirited I will strike. The other comments I
11 will allow because under Rule 4-1.7, and I may
12 be misquoting, but it is one of the two rules
13 we have been looking at under the Florida Bar,
14 the commentary specifically talks about an
15:20:42 15 adverse party moving to disqualify and the
16 strategy may be employed. So I will allow that
17 portion of his argument, striking mean
19 MR. ROSE: Okay. If you turn to tab 2 of
15:20:53 20 the -- we, I think, sent you a very thin
22 THE COURT: Yes, you did.
23 MR. ROSE: We had already sent you the
24 massive book a long time ago.
15:20:59 25 THE COURT: Yes.
MR. ROSE: And I think all I sent you was
2 the very thin binder. If you turn to Tab 2.
3 THE COURT: In any other world this would
4 have been a nice sized binder. In this
5 particular case you are indeed correct, this is
6 a very thin binder.
7 MR. ROSE: Okay. If you flip to page
8 2240 --
9 THE COURT: I am just teasing you, sorry.
15:21:15 10 MR. ROSE: -- which is about five or six
11 pages in.
12 THE COURT: Yes.
13 MR. ROSE: This is where a conflict is
14 charged by opposing party.
15 THE COURT: Yes.
16 MR. ROSE: It's part of Rule 4-1.7. These
17 two rules have a lot of overlap.
18 And I would point for the record I did not
19 say that Mr. Feaman was mean spirited. I
20 specifically said mean spirited by his client.
21 THE COURT: Thank you.
22 MR. ROSE: So conflicts charged by the
23 opponent, and this is just warning you that
24 this can be used as a technique of harassment,
15:21:40 25 and that's why I am tying that in.
But the important things are I have never
2 represented Mr. Stansbury in any matter.
3 Generally in a conflict of interest situation
4 you will see I represented him. I don't have
15:21:56 5 any confidential information from
6 Mr. Stansbury. I have only talked to him
7 during his deposition. It wasn't very
8 pleasant. And if you disqualify me to some
9 degree my life will be fine, because this is
15:22:07 10 not the most fun case to be involved in. I am
11 doing it because I represent Ted and we are
12 trying to do what's right for the
14 THE COURT: Appearance for the record.
15:22:18 15 Someone just came in.
16 MR. ELIOT BERNSTEIN: Hi. Eliot Ivan
18 THE COURT: Thank you.
19 MR. ELIOT BERNSTEIN: I am pro se, ma'am.
15:22:24 20 THE COURT: Thank you. You may proceed.
21 I just wanted the court reporter to know.
22 MR. ELIOT BERNSTEIN: Thank you, Your
24 MR. ROSE: I don't have any confidential
25 information of Mr. O'Connell. He is the PR of
the estate. I don't know anything about
2 Mr. O'Connell that would compromise my ability
3 to handle this case. I am not sure he and I
4 have ever spoken about this case. But in
15:22:39 5 either case, I don't have any information.
6 So I can't even understand why they are
7 saying this is a conflict of interest. But the
8 evidence will show, if you look at the way
9 these are set up, these are three separate
15:22:50 10 cases, not one case. And nothing I am doing in
11 this case criticizes what I am doing in this
12 case. Nothing I am doing -- the outcome of
13 this case is wholly independent of the outcome
14 of this case. He could lose this case and win
15:23:05 15 this case. He could lose this case and lose
16 this case. I mean, the cases have nothing to
17 do with the issues.
18 Who gets the insurance proceeds? Bill
19 Stansbury is not even a witness in that case.
15:23:17 20 It has nothing to do with the issue over here,
21 how much money does Bill Stansbury get? So
22 you've got wholly unrelated, and that's the
23 other part of the Rule 4-1.9 and 4-1.7, it
24 talks about whether the matters are unrelated.
25 And I guess when I argue the statute I will
argue the statute for you.
2 At best what the evidence is going to show
3 you -- and I am not trying to win this on a
4 technicality. I want to win this like up or
15:23:43 5 down and move on. Because this estate can't --
6 this delay was torture to wait this long for
7 this hearing.
8 But if I showed up at Ted's deposition,
9 and I promise you I will never show up again, I
15:23:57 10 am out of that case, this is a conflict of
11 interest with a former client. I have ceased
12 representing him at his deposition. He is
13 never going to be deposed again. If it's a
14 conflict of interest with a former client, all
15:24:09 15 these things are the prerogative of the former
16 client. They are not the prerogative of the
17 new client. The new client it's not the issue.
18 So if I represented Ted in his deposition, I
19 cannot represent another person in the same or
15:24:21 20 a substantially related matter.
21 So I can't represent the estate in this
22 case because I sat at Ted's deposition, unless
23 the former client gives informed consent. He
24 could still say, hey, I don't care, you do the
15:24:35 25 Illinois case for the estate. I wouldn't do
that, but that's what the rule says. Use
2 information. There's no information. I am not
3 even going to waste your time. Reveal
4 information. So there's no information. If
15:24:46 5 this is the rule we are traveling under, you
6 deny the motion and we go home and move on and
7 get back to litigation. If we are traveling
8 under this rule, I cannot under 4-1.7 --
9 MR. FEAMAN: Excuse me, Your Honor, this
15:25:00 10 sounds more like final argument than it does
11 opening statement what the evidence is going to
13 THE COURT: Overruled.
14 MR. ROSE: So under 4-1.7, except as in b,
15:25:17 15 and I am talking about b because that's maybe
16 the only piece of evidence we may need is the
17 waiver. I have a written waiver. I think it
18 has independent legal significance. Because if
19 I obtained his writing in writing, I think it's
20 admissible just because Mr. O'Connell signed
21 it. But they object, they may object to the
22 admission of the waiver, so I may have to put
23 Mr. O'Connell on the stand for two seconds and
24 have him confirm that he signed the waiver
But except if it's waived, now let's put
2 that aside. We never even get to the waiver.
3 The representation of one client has to be
4 directly adverse to another client. So
15:25:53 5 representing Ted in his deposition is not --
6 has nothing to do -- first of all, Ted had
7 counsel representing him directly adverse. I
8 was there protecting him as trustee, protecting
9 his privileges, getting ready for a trial that
15:26:07 10 we had before Judge Phillips where he upheld
11 the validity of the documents, determined that
12 Ted didn't commit any egregious wrongdoing.
13 That's the December 15th trial. It's on appeal
14 to the 4th District. That's what led to having
15:26:23 15 Eliot determined to have no standing, to Judge
16 Lewis being appointed as guardian for his
17 children. That was the key. That was the only
18 thing we have accomplished to move the thing
19 forward was that, but we had that.
15:26:34 20 But that's why I was at the deposition,
21 but it was not directly adverse to the estate.
22 Number two, there's a substantial risk
23 that the representation of one or more clients
24 will be materially limited by my
15:26:52 25 responsibilities to another. I have asked them
1 to explain to me how might -- how what I want
2 to do here, which is to defend these people
3 that I have been doing -- I have asked
4 Mr. Feaman to explain to me how what I am doing
15:27:06 5 to defend the estate, like I defended all these
6 people against his client, could possibly be
7 limited by my responsibilities to Ted. My
8 responsibilities to Ted is to win this lawsuit,
9 save the money for his family, determine his
15:27:19 10 father did not defraud Bill Stansbury. So I am
11 not limited in any way.
12 So if you don't find one or two, you don't
13 even get to waiver. But if you get to waiver,
14 and this is evidence, it's one of the -- I only
15:27:34 15 gave you three new things in the binder. One
16 was the waiver. One was the 57.105 amended
18 I think the significance of that is after
19 I got the waiver, after I got a written waiver,
15:27:46 20 I thought that changed the game a little bit.
21 You know, if you are a lawyer and you file a
22 motion to disqualify -- so when I got the
23 written waiver --
24 MR. FEAMAN: Your Honor --
THE COURT: Legal objection"
"MR. ROSE: I got a waiver signed by
10 Mr. O'Connell. I had his permission, but I got
11 a formal written waiver. And it was after our
12 first hearing, and it was after -- so I sent it
13 to Mr. Feaman.
14 But if you look under the rule, it's a
15:28:21 15 clearly waivable conflict. Because I am not
16 taking an antagonistic position saying like the
17 work I did in the other case was wrong or this
18 or that.
19 And if you look at the rules of
15:28:31 20 professional conduct again, and we'll do it in
21 closing, but I am the one who is supposed to
22 decide if I have a material limitation in the
23 first instance. That's what the rules direct.
24 Your Honor reviews that. But in the first
25 instance I do not have any material limitation
on my ability to represent the estate
2 vigorously, with all my heart, with everything
3 my law firm's resources, and with Ted's
4 knowledge of the case and the facts to defend
15:29:01 5 his case, there is no limitation and there's no
6 substantial risk that I am not going to do the
7 best job possible to try to protect the estate
8 from this claim.
9 And I think we would ask that you deny the
15:29:12 10 motion to disqualify on the grounds that
11 there's no conflict, and the waiver for
12 Mr. O'Connell would resolve it.
13 And we also would like you to appoint Ted
14 Bernstein. There's no conflict of interest in
15:29:25 15 him defending the estate as its representative
16 through trial to try to protect the estate's
17 money from Mr. Stansbury. It's not like Ted or
18 I are going to roll over and help Mr. Stansbury
19 or sell out the estate for his benefit. That's
15:29:41 20 what a conflict would be worried about. We are
21 not taking a position in -- we are not in the
22 case yet, obviously. If you allow us to
23 continue in this case, we are not going to take
24 a position in this case which is different from
25 any position we have ever taken in any case
because all --
2 THE COURT: Just for the record, for the
3 record, I see you pointing. So you are not
4 taking a position in the Palm Beach circuit
15:30:02 5 court --
6 MR. ROSE: Case.
7 THE COURT: -- civil case --
8 MR. ROSE: Different than we've --
9 THE COURT: -- that's different than
15:30:07 10 probate or even the insurance proceeds?
11 MR. ROSE: Correct. Different from what
12 we did in the federal case in Illinois,
13 different from we are taking in the probate
14 case. Or more importantly, in fact most
15:30:17 15 importantly, we are not taking a position
16 differently than we took when I represented
17 other people in the same lawsuit.
18 You have been involved in lawsuits where
19 there are eight defendants and seven settled
15:30:27 20 and the last guy says, well, gee, let me hire
21 this guy's lawyer, either he is better or my
22 lawyer just quit or I don't have a lawyer. So
23 but I am not taking a position like here we
24 were saying, yeah, he was a terrible guy, he
15:30:38 25 defrauded you, and now we are saying, oh, no
it's not, he didn't defraud you. That would be
2 a conflict. We have defended the case by
3 saying that Mr. Stansbury's claim has no merit
4 and we are going to defend it the same way.
15:30:49 5 And then that's what we'd like to do with
6 the Florida litigation, and then time
7 permitting we'd like to discuss the Illinois
8 litigation, because we desperately need a
9 ruling from Your Honor on the third issue you
15:31:00 10 set for today which is are you going to vacate
11 Judge Colin's order and free Mr. Stansbury of
12 the duty to fund the Illinois litigation.
13 Judge Colin entered the order. The issue
14 was raised multiple times before Judge
15 Phillips. He wanted to give us his ruling one
16 day, and we -- you know, he didn't. We were
17 supposed to set it for hearing. We had
18 numerous hearings set on that motion, the
19 record will reflect, and those were all
20 withdrawn. And now that they have a new judge,
21 I think they are coming back with the same
22 motion to be excused from that, and that's the
23 third thing you need to decide today.
24 THE COURT: All right. "
Source and Full Transcript
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