Free Reply in Support of Motion - District Court of Arizona - Arizona

EXHIBIT “2"
Case 2:02-cv-02405-HRH Document 393-3 Filed 08/06/2007 Page 1 of 4

GARY STUART — 06/20/2007
1
1 UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF ARIZONA
3
4 In re: )
J
5 BILTMORE ASSOCIATES, as }
Trustee for the Visitalk }
6 Creditors‘ Trust, }
)
7 Plaintiff, }
} Case No.
8 vs. } CIV 02-2405-PHX HRH
)
9 PETER THIMMESCH and CYNTHIA )
THIMMESCH, husband and wife; )
10 MICHAEL O'DONNELL and MARSHA J
O'DONNELL, husband and wife; )
ll et al., )
)
12 Defendants. )
)
13
14
15 DEPOSITION OF GARY STUART
16
Phoenix, Arizona
17 July 20, 2007
18 I
19 ARIZONA REPORTING SERVICE, INC.
Court Reporting
20 Suite 203
2627 North Third Street
21 Phoenix, Arizona 85004-1126
22 By; Kate E- Baumgarth, RPR
Certified Reporter
23 Certificate No. 50582
24 Prepared for:
25
ARIZONA REPORTING SERVICE, INC. {602) 274-9944
www.az~reporting.com Phoenix, AZ
Case 2:02-cv-02405-HRH Document 393-3 Filed 08/06/2007 Page 2 of 4

GARY STUART - D6/20/2007
74
1 regarding conflicts of interest is lower than any other
2 state?
3 MR. CLAUS: Form foundation; impossible to
4 answer.
5 THE WITNESS: I don't know what you mean.
6 Q. BY MR. KAUP: You testified about the standard of
7 care in Arizona relating to conflicts of interest.
8 MR. CLAUS: Misstates testimony.
9 Q. BY MR. KAUP: Is that a fair statement?
10 A- I'm sorry. I'm trying to listen to you. would
11 you mind repeating the question?
12 Q. Do you assert through your report -- do you
13 provide an opinion in your report regarding the standard
14 of care for lawyers relating to conflicts of interest?
15 A. Yes, sir.
16 Q. Do you believe that the standard of care
17 regarding conflicts of interests for lawyers is different
18 than in any other state?
19 A. Yes, sir.
20 Q. How so?
21 A. Every state has a body of law, a set of rules and
22 a standard of care, three different ways of approaching
23 the settlement problem.
24 Conflict analysis is very different in the South
25 than it is in the West. Conflict analysis is very
ARIZONA REPORTING SERVICE, INC. {602) 274-9944
www.az-reporting.com Phoenix, AZ
Case 2:02-cv-02405-HRH Document 393-3 Filed 08/06/2007 Page 3 of 4

GARY STUART - 06/20/2007
75
1 different in 49 of the 50 states as contrasted with New
2 York.
3 New York is substantively different from
4 California because they follow different rules.
5 Louisiana is quite different because it has never
6 adopted any of the ABA rules.
7 California is different because it has adopted
B some and relegated and modified others differently.
9 Arizona‘s version of 1.7 is different from most
1U other states.
ll So you have to look at this on a state—by~state
12 kind of analysis. In many ways we are similar to
13 other states, and in other ways we are not similar. Our
14 standard of care is a composite of the teachings and the
15 standards created in the trial colleges ard the law firms
16 as opposed to sole proprietors, and it may develop
17 differently than in other states that are either more or
18 less populous or have older and more advanced legal
19 systems.
20 So it is erroneous to assume that all standards
21 in all cases are the same.
22 Having said that, the direct adversity piece of
23 conflict analysis is consistent throughout the country-
24 All states, as I understand it, require that the adversity
25 be direct, not potential, not maybe, not theoretical, but
ARIZONA REPORTING SERVICE, INC. (602} 274-9944
www.az~reporting.com Phoenix, AZ
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