The husband of Susan Winters is now facing murder charges. [News3LV]
Two defendants from the first two Bunkerville trials took a plea deal to avoid a third trial. [SLTrib]
Greenberg Traurig is going to move to Summerlin. [RJ]
The Supreme Court reversed a death row conviction. [RJ]
Here’s a long read on the latest about Kirstin Lobato. [The Intercept]
Most of you saw the video from the deposition of Dr. Enrico Fazzini posted in the comments yesterday. A non-lawyer reader wrote in with two questions about that: why did anyone let the deposition go forward in the first place and is someone going to be in trouble for posting it on Liveleak/Youtube? (It has since been removed from Liveleak).
Depos are presumptively open to the public unless there's an order sealing them which is problematic in its own right. Didn't see the link but they're like any court proceeding: Open.
Guest
Anonymous
October 26, 2017 3:31 pm
8:26 here – hit send too soon — point about depos being to the public is the video of one is probably public too so unless there was a sealing order not sure there's a problem with posting.
Guest
Anonymous
October 26, 2017 3:47 pm
I do feel sorry for the Plaintiff's attorney who got stuck with a drunk doctor witness. The deposition had probably been planned for months, with the court reporter and all fees paid beforehand, and the doctor flew in from New York for it. He may have only had a couple of minutes to meet with the doctor before the depo. If you decide to cancel the depo, what excuse do you give? I'm assuming he wasn't the one who noticed the depo so it would have been difficult to convince the other side to cancel it when they knew the doctor was there. And what if the doctor doesn't agree to cancel it? I'm not saying the attorney made the right decision to let it go forward, and I'm only speculating as to what happened, but I think he was put in a really difficult situation.
I feel sorry for him too. I had a witness show up drunk to court years ago for a routine bankruptcy hearing. I was a beginning lawyer and didn't know what to do. I asked for a sidebar with the court and opposing counsel and said I didn't feel we could proceed and they agreed. But not sure how that would work in depo context.
Dr. Fazzini holds himself out as an expert in neurology and brain injury matters and has been a standard "go to" expert for the personal injury bar for years. Evidently was "hosting" a get together for his preferred attorneys at the Cosmo as part of his Vegas rounds right about the same date as the depo. No one should feel sorry for the attorney — no brainer decision from the jump…that depo never gets started. Ultimately it is all on Dr. Fazzini and hopefully he gets help. Feel sorry for the doctor's patients.
"Bart Simpson" that was awesome. I hope the jury gets to see that video depo. He comes to Nevada 4 days each month. For what? To provide "care for ailing patients? I doubt it.
Totally disagree with 8:47 Dustin Birch should have shut that down immediately. Even Jaffe gave doc the out around 4 min mark when he asks to go off the record. If that's all of the depo that occurred I could understand Dustin's position (I'd still say he should have shut down from the start considering everyone says doc looked/smelled/acted obviously wasted) but completely ridiculous he let the next 10 min occur.
"I'm sorry, but the doctor suddenly became ill this morning and cannot proceed. The deposition will have to be renoticed, and our office will pick up any additional witness fee and the court reporter's appearance."
That presumes Dustin was able to tell that Fazzini was blitzed. How many times have you seen an attorney(especially a younger associate) who is intimidated by their own expert. "Look Fazzini is getting $1500 an hour and this is just part of his schtick. I am certain he will turn it on once we are on the record." Fazzini clearly did not think he was ill and probably said "Yeah I am totally good to go." As the Plaintiff, you don't want to eat Defense Counsel's time, the court reporter/videographer's time and the time that Fazzini is going to bill you for prep and attending a deposition that he clearly believes he is in control of.
2:13 here. That's true, and it is easy for us to sit here after the fact, with all kinds of time to reflect, and think of all the better ways that we would have handled it. In more than 20 years of practice, I've never had anything like this happen. Closest was an arbitration where the arbitrator and OC got into a shoving match.
Viewing these matters from the outside, having an intoxicated witness appear for a deposition or to offer testimony in court, can be somewhat entertaining.
However, when it happens to us as attorneys(and it happened to me twice, as to my own witnesses) it can be highly disruptive and concerning, and sometimes can even sink the case. It kind of depends on how critical the witness and the testimony is.In the case being discussed it appears to be a critical expert witness, so I feel sorry for the attorneys that engaged such expert. Or should have they done better homework before hiring him? If he's never offered drunk testimony before, the attorneys are not to blame. But if he has, hopefully sufficient inquiry and diligence by the attorneys would have revealed that.
245…so you are basically saying the attorneys who put on the record that Fazzini reeked of alcohol immediately upon entering the room were lying? How did P counsel not notice it too? Absolutely blame the attorney, and the one who had him defend a deposition without having any common litigation sense. This wasn't a nuanced decision at all and no MMQB is needed. Just shambolic all the way around. Call it what it is.
I went. What a pontificating load of poppycock. Ten minutes into his remarks, people other than Bob Nersesian stopped listening and just started talking with the other people in their booths. Nothing worth paying $50 to hear.
Was it simply a recycling of stock clichés and platitudes of what the Bar's functions are and the supposed valuable services they provide?
Or did he actually address some of the recent concerns expressed by many? Those concerns include that under his stewardship many believe that the prosecutions, and punishments, are proportionally too severe for the offense alleged. Many also believe that the Bar is now in a position where they are primarily focused on punishment, rather than aiding and advising attorneys on how to avoid these disciplinary issues.
I strongly suspect that he did not address any of those concerns, but I wanted to ask just in case.
He RAVED about the ass-kickings that he and his office are handing out! He actually bragged that he is being contacted by judges and senior attorneys saying that the OBC is being far too harsh, is filing discipline in cases that does not merit it and is being too swift to discipline. He said that he wants the word out there, no matter the level of violation, that attorneys need to be ready to start doing the time. Honestly it answered the question where this heavy-handed approach is originating.
As to the concern expressed that "the Bar is now in a position where they are primarily focused on punishment, rather than aiding and advising attorneys on how to avoid these disciplinary issues", he responded that ethical issues are solely being caused by greed and the fact that there are too many attorneys and too little work so attorneys are violating the ethical rules out of financial greed. He takes the position that his job is Chief Punisher and he is proud of the work over the past 2 years to completely turn discipline into a draconian nightmare.
Ultimately this douche is accountable to the BOG, which unfortunately consists of the same people running year after year, with minimal attention given to these races, very little competition, and I would guess "voter turnout" numbers down in the cellar somewhere. Finally, dear Brutus, the fault lies not in our stars, but in ourselves.
So, he is basically saying that judges and senior attorneys tell him the prosecutions are too severe, and rather than denying that or defending his record, he essentially conceded the punishments may be too severe but he wants to send a message?
His job is not to send a message to the Bar by over-charging people or handling cases in a disproportionate manner. His job, in my estimation, is to seek punishment proportionate to the individual offenses. That's the way to effectively and fairly police the profession. In fact, in my view it raises real concerns to knowingly and willingly over-charge an offender, and to seek disproportionate punishment, merely to send a broader message to the Bar as a whole. Unless, of course, what he really said is that he disagrees with the senior attorneys and judges who told him that they thought he was over-charging.
As to the second concern, aiding attorneys in order to avoid these pit falls, he apparently has no interest in this. If in fact he believes most, if not all, of these issues are created by greed, I guess he sees no point in counseling attorneys as greedy people would ignore the advise and do what's necessary to line their own pockets.
But my experiences are significantly different, and apparently somewhat less jaded, than that. I have represented a number of attorneys facing bar discipline over the years. I don't recall one that centered around greed, and none of them concerned trust fund violations. They centered around attorneys who spread themselves too thin, too many cases, not enough organization, problems with communication, etc. At least that was my experience.
But my opinions here are based on what is being represented of what he said at the conference. I don't doubt the veracity of the posters, but it's possible they focused on the matters which place him in an unflattering light, as opposed to focusing on material which would make his positions more understandable and supportable.
Or perhaps that is just wishful thinking on my part since I truly hope that his presentation was not really as it has been conveyed.
Two more things from his remarks: (1) Considering mandatory malpractice insurance; (2) Random audits (at the audited firm's expense).
3:15– It was frightening how out of touch Stan really is. He really believes the jack booted thing is his marching orders from the BOG. Honestly he came across like someone who had no experience in bar discipline cases and was sent in to conduct Operation Strikeforce.
If they mandate mandatory malpractice insurance, it will get pricey fast like mandatory car insurance. Whenever a state mandates something it drives up costs like health insurance. Remember this is a Bob Eglet proposition to mandate malpractice insurance. This will drive a lot of lawyers out of the business. The random audits of the trust accounts is likewise troubling. This is punishment for Rob Graham's transgressions and will do nothing to prevent the next Rob Graham but will cause problems for those who have minor technical violations found on client trust accounts. Supposedly, they are going to send out a survey. I think the insurance proposal could be problematic like where is the legal authority for this requirement? Yes there are way too many lawyers. So why are they considering allowing attorneys to waive in to the bar and adopting the Uniform Bar Exam? The Nevada Bar is already an easy bar to pass. They lowered the standards.
3:15 here again. As to these two matters–mandating malpractice insurance, and the random audit, I must concede I am not offended or indignant about his malpractice remarks.
Even in my early years of solo practice, when I would sometimes struggle as many young attorneys do who are on their own, I always maintained malpractice insurance. It protected me, and it protected the clients. It didn't matter how diligent or conscientious I was or thought I was. One can always be sued by a client–justifiably or otherwise. And even the most diligent, conscientious lawyers can make major blunders or oversights. There's always a million things going on, and constant deadlines, etc. Just like the best drivers can cause car accidents.
I did without other things in order to allow me to have such insurance. And I am hardly noble. I just thought it should be maintained by all full-time attorneys in private practice. And I never had much sympathy for attorneys who didn't carry it. Legal malpractice insurance is not cheap, but is not even a fraction as expensive as medical malpractice insurance.
If requiring malpractice insurance would put some attorneys out of business, and the attorneys have been practicing for more than a decade, it is likely those attorneys will never be particularly successful and should find some different career. I know that sounds harsh, but I think it is an accurate, and practical, observation.
However, the random audits, which the attorneys need to pay for themselves is outrageous. That's only supportable if it is required of an attorney who has already been disciplined for trust fund, or other serious financial, violations. But to subject someone who has never been disciplined to those audits, and to make the audited person pay for it out of their own pocket is grossly unfair, and just plain stupid. It would take all their resources, and more, to audit thousands of attorneys who never had problems, just to discover that perhaps 1% or 2& of them do in fact have problems not previously known to the Bar.
Even if the attorneys pay for their own audits, the costs to the Bar of hiring additional staff to perform thousands of pointless, idiotic audits would be staggering beyond measure. Did anyone ever discuss the fiscal impact with him?
Only way it can work is if they quadruple their staff and their funding. Which for all I know, may be in the works. So, don't be shocked if you dues multiple several times over from one year to another, just like the Water District's billings tripled almost overnight a few short years back.
Oregon has a mandatory malpractice insurance system. It is a "Professional Liability Fund" that provides $300k in coverage for an annual fee of $3,500. https://www.osbplf.org/about-plf/overview.html
Every attorney who practices in Oregon has to opt in.
This is possibly why Kirk-Hughes' upcoming hearing in front of the Nevada Supreme Court will be interesting. She's alleging that the Bar violated Nevada statutes and ignored evidentiary rules in the disciplinary proceeding. Basically, Bar Counsel did whatever it wanted to and the panel let it.
If her allegations have merit (admittedly a big if), it could result in a Bar Counsel slap-down.
I realize that when discussing certain attorneys and discipline, it may be tempting to focus on a result which may appear proper.
But it is critical that the ends can never justify the means. If an attorney and their conduct is truly lacking the Bar should be confident that they can arrive at the desired discipline while still adhering to all rules and procedural and legal protections of the respondent.
Over the years I have seen results I agreed with, based on the conduct and what I knew of the attorney and their manner of practicing , but it appeared to me that, IMO, proper procedures were not always followed and/or short cuts were taken.
If that's the case, we must never abide that even if we think the result is correct or even if the attorney in question is one who we may despise for their apparent lack of ethics and manner of practice.
I recognize it can be very difficult at times to view matters in that way, particularly if we really dislike the attorney and abhor their behavior and seeming unethical conduct, but IMO we must try.
All of these proposals were caused by the Nevada Supreme Court and BOG. Stan is a creation of the NSC and BOG which is why he feels so empowered. I represent attorneys in Bar Matters. At the most recent hearing, the Asst Bar Counsel went into the room and met with the Panel ex parte before the hearing. The paralegal blocked the door while we and all of our witnesses sat in the lobby. We tried to make a record but candidly, the NSC is not going to do anything to stop these abuses. And who do you report OBC ethical violations to? There are no watchdogs watching the watchdogs. OBC literally believes that it can do anything it wants and that no rules of conduct, evidence or ethics apply to them.
Kirk-Hughes's case is interesting because it involves a 6 year suspension, when Nevada generally is up to 5 years and then disbarment. Honestly the Supremes (read: Hardesty) may be using the Kirk-Hughes case to set a tougher standard for discipline than presently is the norm because the facts in her case are so ugly that this may be the one where the Supremes get away from Claiborne as the precedent.
Whomever runs for BOG and vows to shake up the system will get my vote. No more Good Ol' Boy Network.
It may very well be that the NSC and BOG advocated a tougher approach than in the Rob Bare/Clark era. My personal belief is that the Bare/Clark era struck the proper balance between protecting the profession and the public, but also putting large emphasis in helping attorneys to rectify such behavior so there is less likelihood of repetition.I felt that the sanctions were, more often than not, appropriate and proportionate.
I believe that current leadership is restoring a somewhat harsher approach which existed in the Pre-Rob Bare era. Back then, for a period Mr. Leonard Gang was Bar Counsel(for those who remember him,and boy was he tough.)A legally brilliant man, but very tough and tenacious.
So, currently leadership kind of reminds me of those days. Again, under Rob Bare's 17 years at the helm, the proper balance was usually taken, IMO.Bare could be real tough when needed–like when some corrupt a-hole depletes the trust account.
But he did not seek disproportionate punishment with some minor, very temporary, human error trust fund reconciliation issues–wherein no client is ultimately harmed and is not even out one red cent.
But I understand and appreciate the fact that current Bar leadership may have a somewhat different philosophy on these matters than myself and many other Bar members.They will decide the approach they take, what their philosophy and emphasis is, and as long as they are in charge we just need to accept that(even if albeit reluctantly)
But as other posters point out, whether a current Bar leadership is classified as somewhat lenient,or more in the middle, or more harsh, there is never an excuse to justify matters that the ends justifies the means. No matter how bad a certain attorney's conduct may be, all appropriate protections must be afforded.
And to that point, this part about Bar counsel being in the room consulting with the panel, while Respondent and attorney are excluded,if true, is highly concerning.
Admittedly, me focusing on the protections the attorney must be afforded, and sticking to my insistence that the ends can never justify the means, becomes real challenging once it becomes public as to who some of these attorneys are. I must acknowledge that some of these attorneys, whose rights I'm so worried about, are attorneys who have repulsed me completely with their greed, dishonesty, negligence, utter lack of ethics, as well as what I viewed as downright immorality. As to some of these people,I am frankly stunned they have held onto their license(to steal) this long and I applaud current leadership for trying to finally cut these cancers from our profession(providing all required safeguards and protections are afforded).
But every time I am proud of current leadership for going after such vermin, I become concerned when they seem to be seeking disproportionate punishment against decent attorneys for offenses which don't appear that serious.
This was an incredibly well-considered, historically accurate analysis. It is an analysis which Judge Bare himself has indicated.
The Nevada Supreme Court precedent going back to the Harry Claiborne decision makes clear that attorney discipline is supposed to be exclusively for protection of the public and is not for punishment. Rob and Dave focused on trying to protect the public and the Bar but in trying to keep good attorneys practicing and in getting good attorneys rehabilitated and back into practice. It serves no public purpose to keep good attorneys out of practice. And Bare (and Clark in the same mold) emphasized harsher action against attorneys who harmed clients with less emphasis as against those who violated ethical rules but had no victims. Honestly to the extent that the Nevada Supreme Court (and Jane Ann Morrison) thought that the process was not "punitive enough" it was because the process was not and is not supposed to be punitive. Furthermore the process encouraged attorneys to be forthcoming with the Bar and to protect their clients and the Bar by mitigating and ameliorating their conduct and repercussions.
This new adversarial approach is going to make attorneys turn away from, rather than to, the Bar. Why would an attorney go to State Bar for assistance when the State Bar views all of them as greedy criminals? Do not cooperate with the State Bar under any circumstances. Whereas Bare is about protecting the public, Stan is about looking tough for tough's sake. That not only does not protect the Bar but unnecessarily complicates discipline where everyone presumably would have the same interest in getting and keeping good lawyers in practice.
Where I disagree with 1:01 is that, as long as they are in charge we just need to accept that(even if albeit reluctantly). This is not their State Bar; it is our State Bar. This is not the regulation of their profession; it is the regulation of our profession. Stan is doing harm to our profession when he tells his OBC members to win at all cost and get the maximum punishment for all cases possible. Stan is violating the very RPCs that he claims to enforce and uphold in seeking to put a boot up peoples' ass rather than to do justice for the public and for members of this profession. While it is not an unexpected result that a former prosecutor with no experience in Bar discipline would not understand this balance, it is an unacceptable result.
All of these attorneys whose rights you are worried about are still entitled to have their rights protected because the OBC does not discriminate in whose rights it violates. The case where Bar Counsel met ex parte with the Panel involved no theft from clients, no monies missing, no victims. We all should applaud cutting cancers from our profession; however prior leadership was also cutting cancers from the profession. Rob Bare disbarred cancers who stole monies. David Clark disbarred attorneys who stole money. Those cases where no monies were stolen and yet attorneys are removed from the profession are an embarrassment to our profession, no matter what Hunterton or Hardesty think.
1:28– Name the "rich and prominent attorneys" who got the easy way out of bar discipline only to reoffend again and again and leave many victims under Rob Bare. Being disproportionately tough does nothing to raise standards.
1:01 indicates that as long as current Bar counsel is in office, we need to accept that he is there and be vigilant and careful, knowing what his predilections are, etc. 1:33 responds that we need not accept current Bar leadership as it is "our Bar."
But does such platitude truly establish who actually has the power? 1:01 obliquely suggests that the power remains with others, such as the NSC, BOG, etc. If that is the case,admittedly the BOG could be voted out one at a time, but it could take years. And most people who vote for BOG are unaware of which members voted for what. The voters usually simply support an incumbent or a familiar name.
But where you both agree, as well as almost everyone I have spoken to about this, is that prior counsel was just as effective in cutting out the true cancers, but were much more fair and proportionate when sanctioning decent lawyers who slipped up but had no nefarious motive and caused no real harm.
5:14 is correct (as are both 1:01 and 1:33). Where I agree with 1:33 is that we all understand that decisions are being made by the OBC/SBN and NSC. However we as members of the Bar are not helpless to the issue of the OBC running amok and doing harm to our profession by unnecessarily and vindictively oversanctioning attorneys. We are not powerless to the abuses which the OBC appears to be committing.
The issue is not the cancers in our profession. There are attorneys who have multiple client and consumer complaints. They stole money from their clients. The Bar knows who they are. Many members of the profession know who they are. They do real harm to clients and the public. Bare went after them. David Clark went after them. They were effective in going after them. Hunterton is doing nothing more in going after them than his predecessors to root out the bad apples. The difference is that Rob and David were fair and proportionate in seeking to ensure that the goal of lawyer discipline is to protect the public from those who are a threat of future harm. They took out the bad apples without doing unnecessary harm to lawyers who did no harm but did violate the RPC. Hunterton seems to not have read the ABA Model Standards or have any concept that there is to be no punitive or retributive motive in discipline. I know a couple members of the OBC who have privately indicated that (while Clark was slow in prosecuting cases) that Hunterton has made no secret of the fact that he is going to create some sacrificial lambs for his goal of sending a message. When I look at attorneys who are causing harm to our profession, Hunterton is on that list now.
The common theme everyone seems to agree on is that OBC is now far too aggressive in pursuing minor infractions where there was no real harm, and seeking punishment which is grossly out of whack with the offense alleged.
The "sacrificial lamb" pert , if true, is quite disturbing. It is callousness of a staggering degree. People sacrifice so much to become an attorney, and if it wrongfully taken from them without compelling cause, I find that heinous beyond measure. But, again, although there is no doubt that current Bar Counsel, by his own acknowledgment, is quite aggressive about pursuing offenders, I have no way of knowing if he actually offered the sacrificial lamb remark.
It is a very tough row to hoe to replace BOG members with people who are sympathetic to the position that the Bar is now far too aggressive about prosecutions. But, two methods could possibly bear fruit.
First, find candidates to run(either for openings or against incumbents) who are supportive of the position that the Bar is now too aggressive–and explain how and why they are too aggressive, and what the candidate's view is of how discipline should occur, along with its goals and aspirations.
Second, form a coalition of attorneys who, in fairly large numbers, will contact a BOG member running for re-election, either by calling them, emailing them or whatever. These BOG members will ignore a stray complaint or two, but they know they must be responsive to a high number or coalition of attorneys who contact them.
Once these BOG members know that if they are not receptive, they risk not being supported, or worse, having an opponent who will be supported by the coalition, the incumbent then by necessity will become responsive. After all, most BOG members, IMO, are pretty much politicians, and in for the recognition, perceived power, to hop knob with others they perceive as powerful or influential, to benefit to their practice, etc. They are not truly in it, as they represent, to sacrifice their time to better the practice of law in the state, or to benefit the community. So, their primary objective, IMO, is not to stand by a principle even if it cost them re-election. Their primary purpose is to get re-elected, and if they are forced to compromise their believes and principles to get re-elected, they will simply rationalize after the fact that them evolving and changing their position was ultimately the best thing for the profession and the community.
So, the ace up the sleeve of the disgruntled masses of attorneys who fear wrongfully inflated discipline is to exploit the fact that these incumbents, in my view, for the most part put top priority upon their re-election and continued survival on the board.
Don't let them get away with their re-election form letters spouting their supposed accomplishments.
The only things specific of any merit those re-election letters ever reference is issues such as unauthorized practice, attorney advertising, etc. But those issues were really far more relevant and received far more attention in prior terms of the Board.For the upcoming term, if attorneys value their livelihood, they should insist that this issue of disproportionate discipline be addressed.
And, BTW, I'm not advocating for the removal of someone. If current leadership can adjust, fine. If it's naive to think they can, we will find that out in time.
Well stated 9:53. The current BOG did not have an axe per se to grind with attorney discipline. However Kim Farmer and Board got pressure from the NSC (specifically one justice who hails from the north) that cases were going too slow and that this particular justice wanted it addressed. The BoG and its Executive Director (willing to do whatever Carson City wants) took up the charge. 9:53, you are exactly right. The BoG are politicians. They many times are not necessarily thinking of the best interests of the State Bar and its members; they want to do what will be perceived as publically popular and to curry favor with Court (who are also politicians).
Your recommendations that the BoG and its constituent arms know that they are pursued a bridge too far is excellent.
Guest
Lawyer Bird
October 26, 2017 4:17 pm
I downloaded it also, just to be safe, because it's hilarious
Concerning the Kirstin Lobato case,if the reporting over the years is to be believed, it would be highly unlikely that two separate juries would get it so wrong.I didn't sit in on any of the proceedings, and never really spoke to anyone with inside info., so when it comes to this case I am sort of like a lay person–I really only know what the media reports.
And based on such reporting over the years, including the latest article available on this blog,it's startling how this could have twice been prosecuted all the way to trial, and both times resulting in guilty verdicts.
If the reporting is to be believed, not only does it appear the prosecutors should have perceived that the guilt beyond reasonable doubt burden could not remotely be met, but it appears they should have actually been persuaded of her factual innocence.
Yet twice she in fact was convicted. So, are we being offered a skewered version of the facts, with certain other critical info. being omitted? Or is it simply a matter that despite the huge holes in the case many jurors simply assume that if it goes all the way to trial that the Defendant must be guilty?
I'm just having a lot of trouble reconciling the two convictions vs. what the media has chosen to focus on concerning the case. Even considering how unpredictable, biased or ill-informed jurors can be, I'm still stunned there were two convictions against this young woman if the facts are essentially as presented in the media.
Also, if the whole matter has been accurately reported, with no critical info. omitted, many judges would have been quite pro-active and, during various pre-trial proceedings, clearly expressed their concerns over the huge holes in the evidence, as well as the supposedly compelling evidence supporting factual innocence.
So, I am asking for some help. What is really going on? What are we not being told? What is not being reported in the media outlets?
Depos are presumptively open to the public unless there's an order sealing them which is problematic in its own right. Didn't see the link but they're like any court proceeding: Open.
8:26 here – hit send too soon — point about depos being to the public is the video of one is probably public too so unless there was a sealing order not sure there's a problem with posting.
I do feel sorry for the Plaintiff's attorney who got stuck with a drunk doctor witness. The deposition had probably been planned for months, with the court reporter and all fees paid beforehand, and the doctor flew in from New York for it. He may have only had a couple of minutes to meet with the doctor before the depo. If you decide to cancel the depo, what excuse do you give? I'm assuming he wasn't the one who noticed the depo so it would have been difficult to convince the other side to cancel it when they knew the doctor was there. And what if the doctor doesn't agree to cancel it? I'm not saying the attorney made the right decision to let it go forward, and I'm only speculating as to what happened, but I think he was put in a really difficult situation.
I feel sorry for him too. I had a witness show up drunk to court years ago for a routine bankruptcy hearing. I was a beginning lawyer and didn't know what to do. I asked for a sidebar with the court and opposing counsel and said I didn't feel we could proceed and they agreed. But not sure how that would work in depo context.
Dr. Fazzini holds himself out as an expert in neurology and brain injury matters and has been a standard "go to" expert for the personal injury bar for years. Evidently was "hosting" a get together for his preferred attorneys at the Cosmo as part of his Vegas rounds right about the same date as the depo. No one should feel sorry for the attorney — no brainer decision from the jump…that depo never gets started. Ultimately it is all on Dr. Fazzini and hopefully he gets help. Feel sorry for the doctor's patients.
Yep, that depo gets canceled immediately and you write a check to counsel for costs and time.
"Bart Simpson" that was awesome. I hope the jury gets to see that video depo. He comes to Nevada 4 days each month. For what? To provide "care for ailing patients? I doubt it.
Totally disagree with 8:47 Dustin Birch should have shut that down immediately. Even Jaffe gave doc the out around 4 min mark when he asks to go off the record. If that's all of the depo that occurred I could understand Dustin's position (I'd still say he should have shut down from the start considering everyone says doc looked/smelled/acted obviously wasted) but completely ridiculous he let the next 10 min occur.
"I'm sorry, but the doctor suddenly became ill this morning and cannot proceed. The deposition will have to be renoticed, and our office will pick up any additional witness fee and the court reporter's appearance."
That presumes Dustin was able to tell that Fazzini was blitzed. How many times have you seen an attorney(especially a younger associate) who is intimidated by their own expert. "Look Fazzini is getting $1500 an hour and this is just part of his schtick. I am certain he will turn it on once we are on the record." Fazzini clearly did not think he was ill and probably said "Yeah I am totally good to go." As the Plaintiff, you don't want to eat Defense Counsel's time, the court reporter/videographer's time and the time that Fazzini is going to bill you for prep and attending a deposition that he clearly believes he is in control of.
2:13 here. That's true, and it is easy for us to sit here after the fact, with all kinds of time to reflect, and think of all the better ways that we would have handled it. In more than 20 years of practice, I've never had anything like this happen. Closest was an arbitration where the arbitrator and OC got into a shoving match.
Viewing these matters from the outside, having an intoxicated witness appear for a deposition or to offer testimony in court, can be somewhat entertaining.
However, when it happens to us as attorneys(and it happened to me twice, as to my own witnesses) it can be highly disruptive and concerning, and sometimes can even sink the case. It kind of depends on how critical the witness and the testimony is.In the case being discussed it appears to be a critical expert witness, so I feel sorry for the attorneys that engaged such expert. Or should have they done better homework before hiring him? If he's never offered drunk testimony before, the attorneys are not to blame. But if he has, hopefully sufficient inquiry and diligence by the attorneys would have revealed that.
245…so you are basically saying the attorneys who put on the record that Fazzini reeked of alcohol immediately upon entering the room were lying? How did P counsel not notice it too? Absolutely blame the attorney, and the one who had him defend a deposition without having any common litigation sense. This wasn't a nuanced decision at all and no MMQB is needed. Just shambolic all the way around. Call it what it is.
Can you please name some of the PI attorneys who partied with him at Cosmo the night before?
Video is still on youtube: https://www.youtube.com/watch?v=rFIrB-fdkLA
Anyone going to Morton's today to see Stan Hunterton bloviate? Does anyone ever go to these CCBA lunches?
I went. What a pontificating load of poppycock. Ten minutes into his remarks, people other than Bob Nersesian stopped listening and just started talking with the other people in their booths. Nothing worth paying $50 to hear.
Was it simply a recycling of stock clichés and platitudes of what the Bar's functions are and the supposed valuable services they provide?
Or did he actually address some of the recent concerns expressed by many? Those concerns include that under his stewardship many believe that the prosecutions, and punishments, are proportionally too severe for the offense alleged. Many also believe that the Bar is now in a position where they are primarily focused on punishment, rather than aiding and advising attorneys on how to avoid these disciplinary issues.
I strongly suspect that he did not address any of those concerns, but I wanted to ask just in case.
He RAVED about the ass-kickings that he and his office are handing out! He actually bragged that he is being contacted by judges and senior attorneys saying that the OBC is being far too harsh, is filing discipline in cases that does not merit it and is being too swift to discipline. He said that he wants the word out there, no matter the level of violation, that attorneys need to be ready to start doing the time. Honestly it answered the question where this heavy-handed approach is originating.
As to the concern expressed that "the Bar is now in a position where they are primarily focused on punishment, rather than aiding and advising attorneys on how to avoid these disciplinary issues", he responded that ethical issues are solely being caused by greed and the fact that there are too many attorneys and too little work so attorneys are violating the ethical rules out of financial greed. He takes the position that his job is Chief Punisher and he is proud of the work over the past 2 years to completely turn discipline into a draconian nightmare.
Too many attorneys and too little work, eh? Maybe the bar should shut down the law school for a few years.
Ultimately this douche is accountable to the BOG, which unfortunately consists of the same people running year after year, with minimal attention given to these races, very little competition, and I would guess "voter turnout" numbers down in the cellar somewhere. Finally, dear Brutus, the fault lies not in our stars, but in ourselves.
"too many attorneys and too little work" And yet we keep watering down the bar exam.
That's somewhat frightening.
So, he is basically saying that judges and senior attorneys tell him the prosecutions are too severe, and rather than denying that or defending his record, he essentially conceded the punishments may be too severe but he wants to send a message?
His job is not to send a message to the Bar by over-charging people or handling cases in a disproportionate manner. His job, in my estimation, is to seek punishment proportionate to the individual offenses. That's the way to effectively and fairly police the profession. In fact, in my view it raises real concerns to knowingly and willingly over-charge an offender, and to seek disproportionate punishment, merely to send a broader message to the Bar as a whole. Unless, of course, what he really said is that he disagrees with the senior attorneys and judges who told him that they thought he was over-charging.
As to the second concern, aiding attorneys in order to avoid these pit falls, he apparently has no interest in this. If in fact he believes most, if not all, of these issues are created by greed, I guess he sees no point in counseling attorneys as greedy people would ignore the advise and do what's necessary to line their own pockets.
But my experiences are significantly different, and apparently somewhat less jaded, than that. I have represented a number of attorneys facing bar discipline over the years. I don't recall one that centered around greed, and none of them concerned trust fund violations. They centered around attorneys who spread themselves too thin, too many cases, not enough organization, problems with communication, etc. At least that was my experience.
But my opinions here are based on what is being represented of what he said at the conference. I don't doubt the veracity of the posters, but it's possible they focused on the matters which place him in an unflattering light, as opposed to focusing on material which would make his positions more understandable and supportable.
Or perhaps that is just wishful thinking on my part since I truly hope that his presentation was not really as it has been conveyed.
Two more things from his remarks: (1) Considering mandatory malpractice insurance; (2) Random audits (at the audited firm's expense).
3:15– It was frightening how out of touch Stan really is. He really believes the jack booted thing is his marching orders from the BOG. Honestly he came across like someone who had no experience in bar discipline cases and was sent in to conduct Operation Strikeforce.
If they mandate mandatory malpractice insurance, it will get pricey fast like mandatory car insurance. Whenever a state mandates something it drives up costs like health insurance. Remember this is a Bob Eglet proposition to mandate malpractice insurance. This will drive a lot of lawyers out of the business. The random audits of the trust accounts is likewise troubling. This is punishment for Rob Graham's transgressions and will do nothing to prevent the next Rob Graham but will cause problems for those who have minor technical violations found on client trust accounts. Supposedly, they are going to send out a survey. I think the insurance proposal could be problematic like where is the legal authority for this requirement? Yes there are way too many lawyers. So why are they considering allowing attorneys to waive in to the bar and adopting the Uniform Bar Exam? The Nevada Bar is already an easy bar to pass. They lowered the standards.
3:15 here again. As to these two matters–mandating malpractice insurance, and the random audit, I must concede I am not offended or indignant about his malpractice remarks.
Even in my early years of solo practice, when I would sometimes struggle as many young attorneys do who are on their own, I always maintained malpractice insurance. It protected me, and it protected the clients. It didn't matter how diligent or conscientious I was or thought I was. One can always be sued by a client–justifiably or otherwise. And even the most diligent, conscientious lawyers can make major blunders or oversights. There's always a million things going on, and constant deadlines, etc. Just like the best drivers can cause car accidents.
I did without other things in order to allow me to have such insurance. And I am hardly noble. I just thought it should be maintained by all full-time attorneys in private practice. And I never had much sympathy for attorneys who didn't carry it. Legal malpractice insurance is not cheap, but is not even a fraction as expensive as medical malpractice insurance.
If requiring malpractice insurance would put some attorneys out of business, and the attorneys have been practicing for more than a decade, it is likely those attorneys will never be particularly successful and should find some different career. I know that sounds harsh, but I think it is an accurate, and practical, observation.
However, the random audits, which the attorneys need to pay for themselves is outrageous. That's only supportable if it is required of an attorney who has already been disciplined for trust fund, or other serious financial, violations. But to subject someone who has never been disciplined to those audits, and to make the audited person pay for it out of their own pocket is grossly unfair, and just plain stupid. It would take all their resources, and more, to audit thousands of attorneys who never had problems, just to discover that perhaps 1% or 2& of them do in fact have problems not previously known to the Bar.
Even if the attorneys pay for their own audits, the costs to the Bar of hiring additional staff to perform thousands of pointless, idiotic audits would be staggering beyond measure. Did anyone ever discuss the fiscal impact with him?
Only way it can work is if they quadruple their staff and their funding. Which for all I know, may be in the works. So, don't be shocked if you dues multiple several times over from one year to another, just like the Water District's billings tripled almost overnight a few short years back.
Oregon has a mandatory malpractice insurance system. It is a "Professional Liability Fund" that provides $300k in coverage for an annual fee of $3,500. https://www.osbplf.org/about-plf/overview.html
Every attorney who practices in Oregon has to opt in.
This is possibly why Kirk-Hughes' upcoming hearing in front of the Nevada Supreme Court will be interesting. She's alleging that the Bar violated Nevada statutes and ignored evidentiary rules in the disciplinary proceeding. Basically, Bar Counsel did whatever it wanted to and the panel let it.
If her allegations have merit (admittedly a big if), it could result in a Bar Counsel slap-down.
I realize that when discussing certain attorneys and discipline, it may be tempting to focus on a result which may appear proper.
But it is critical that the ends can never justify the means. If an attorney and their conduct is truly lacking the Bar should be confident that they can arrive at the desired discipline while still adhering to all rules and procedural and legal protections of the respondent.
Over the years I have seen results I agreed with, based on the conduct and what I knew of the attorney and their manner of practicing , but it appeared to me that, IMO, proper procedures were not always followed and/or short cuts were taken.
If that's the case, we must never abide that even if we think the result is correct or even if the attorney in question is one who we may despise for their apparent lack of ethics and manner of practice.
I recognize it can be very difficult at times to view matters in that way, particularly if we really dislike the attorney and abhor their behavior and seeming unethical conduct, but IMO we must try.
Who would even go to an event, outside of discipline, involving bar counsel. I would rather see the Johnsons campaigning with Tess than listen to OBC.
You can blame the NV Supreme Court and the Board of Governors. Get your head out of your asses, and vote these fuckers out.
All of these proposals were caused by the Nevada Supreme Court and BOG. Stan is a creation of the NSC and BOG which is why he feels so empowered. I represent attorneys in Bar Matters. At the most recent hearing, the Asst Bar Counsel went into the room and met with the Panel ex parte before the hearing. The paralegal blocked the door while we and all of our witnesses sat in the lobby. We tried to make a record but candidly, the NSC is not going to do anything to stop these abuses. And who do you report OBC ethical violations to? There are no watchdogs watching the watchdogs. OBC literally believes that it can do anything it wants and that no rules of conduct, evidence or ethics apply to them.
Kirk-Hughes's case is interesting because it involves a 6 year suspension, when Nevada generally is up to 5 years and then disbarment. Honestly the Supremes (read: Hardesty) may be using the Kirk-Hughes case to set a tougher standard for discipline than presently is the norm because the facts in her case are so ugly that this may be the one where the Supremes get away from Claiborne as the precedent.
Whomever runs for BOG and vows to shake up the system will get my vote. No more Good Ol' Boy Network.
It may very well be that the NSC and BOG advocated a tougher approach than in the Rob Bare/Clark era. My personal belief is that the Bare/Clark era struck the proper balance between protecting the profession and the public, but also putting large emphasis in helping attorneys to rectify such behavior so there is less likelihood of repetition.I felt that the sanctions were, more often than not, appropriate and proportionate.
I believe that current leadership is restoring a somewhat harsher approach which existed in the Pre-Rob Bare era. Back then, for a period Mr. Leonard Gang was Bar Counsel(for those who remember him,and boy was he tough.)A legally brilliant man, but very tough and tenacious.
So, currently leadership kind of reminds me of those days. Again, under Rob Bare's 17 years at the helm, the proper balance was usually taken, IMO.Bare could be real tough when needed–like when some corrupt a-hole depletes the trust account.
But he did not seek disproportionate punishment with some minor, very temporary, human error trust fund reconciliation issues–wherein no client is ultimately harmed and is not even out one red cent.
But I understand and appreciate the fact that current Bar leadership may have a somewhat different philosophy on these matters than myself and many other Bar members.They will decide the approach they take, what their philosophy and emphasis is, and as long as they are in charge we just need to accept that(even if albeit reluctantly)
But as other posters point out, whether a current Bar leadership is classified as somewhat lenient,or more in the middle, or more harsh, there is never an excuse to justify matters that the ends justifies the means. No matter how bad a certain attorney's conduct may be, all appropriate protections must be afforded.
And to that point, this part about Bar counsel being in the room consulting with the panel, while Respondent and attorney are excluded,if true, is highly concerning.
Admittedly, me focusing on the protections the attorney must be afforded, and sticking to my insistence that the ends can never justify the means, becomes real challenging once it becomes public as to who some of these attorneys are. I must acknowledge that some of these attorneys, whose rights I'm so worried about, are attorneys who have repulsed me completely with their greed, dishonesty, negligence, utter lack of ethics, as well as what I viewed as downright immorality. As to some of these people,I am frankly stunned they have held onto their license(to steal) this long and I applaud current leadership for trying to finally cut these cancers from our profession(providing all required safeguards and protections are afforded).
But every time I am proud of current leadership for going after such vermin, I become concerned when they seem to be seeking disproportionate punishment against decent attorneys for offenses which don't appear that serious.
This was an incredibly well-considered, historically accurate analysis. It is an analysis which Judge Bare himself has indicated.
The Nevada Supreme Court precedent going back to the Harry Claiborne decision makes clear that attorney discipline is supposed to be exclusively for protection of the public and is not for punishment. Rob and Dave focused on trying to protect the public and the Bar but in trying to keep good attorneys practicing and in getting good attorneys rehabilitated and back into practice. It serves no public purpose to keep good attorneys out of practice. And Bare (and Clark in the same mold) emphasized harsher action against attorneys who harmed clients with less emphasis as against those who violated ethical rules but had no victims. Honestly to the extent that the Nevada Supreme Court (and Jane Ann Morrison) thought that the process was not "punitive enough" it was because the process was not and is not supposed to be punitive. Furthermore the process encouraged attorneys to be forthcoming with the Bar and to protect their clients and the Bar by mitigating and ameliorating their conduct and repercussions.
This new adversarial approach is going to make attorneys turn away from, rather than to, the Bar. Why would an attorney go to State Bar for assistance when the State Bar views all of them as greedy criminals? Do not cooperate with the State Bar under any circumstances. Whereas Bare is about protecting the public, Stan is about looking tough for tough's sake. That not only does not protect the Bar but unnecessarily complicates discipline where everyone presumably would have the same interest in getting and keeping good lawyers in practice.
Where I disagree with 1:01 is that, as long as they are in charge we just need to accept that(even if albeit reluctantly). This is not their State Bar; it is our State Bar. This is not the regulation of their profession; it is the regulation of our profession. Stan is doing harm to our profession when he tells his OBC members to win at all cost and get the maximum punishment for all cases possible. Stan is violating the very RPCs that he claims to enforce and uphold in seeking to put a boot up peoples' ass rather than to do justice for the public and for members of this profession. While it is not an unexpected result that a former prosecutor with no experience in Bar discipline would not understand this balance, it is an unacceptable result.
All of these attorneys whose rights you are worried about are still entitled to have their rights protected because the OBC does not discriminate in whose rights it violates. The case where Bar Counsel met ex parte with the Panel involved no theft from clients, no monies missing, no victims. We all should applaud cutting cancers from our profession; however prior leadership was also cutting cancers from the profession. Rob Bare disbarred cancers who stole monies. David Clark disbarred attorneys who stole money. Those cases where no monies were stolen and yet attorneys are removed from the profession are an embarrassment to our profession, no matter what Hunterton or Hardesty think.
1:28– Name the "rich and prominent attorneys" who got the easy way out of bar discipline only to reoffend again and again and leave many victims under Rob Bare. Being disproportionately tough does nothing to raise standards.
1:01 indicates that as long as current Bar counsel is in office, we need to accept that he is there and be vigilant and careful, knowing what his predilections are, etc. 1:33 responds that we need not accept current Bar leadership as it is "our Bar."
But does such platitude truly establish who actually has the power? 1:01 obliquely suggests that the power remains with others, such as the NSC, BOG, etc. If that is the case,admittedly the BOG could be voted out one at a time, but it could take years. And most people who vote for BOG are unaware of which members voted for what. The voters usually simply support an incumbent or a familiar name.
But where you both agree, as well as almost everyone I have spoken to about this, is that prior counsel was just as effective in cutting out the true cancers, but were much more fair and proportionate when sanctioning decent lawyers who slipped up but had no nefarious motive and caused no real harm.
5:14 is correct (as are both 1:01 and 1:33). Where I agree with 1:33 is that we all understand that decisions are being made by the OBC/SBN and NSC. However we as members of the Bar are not helpless to the issue of the OBC running amok and doing harm to our profession by unnecessarily and vindictively oversanctioning attorneys. We are not powerless to the abuses which the OBC appears to be committing.
The issue is not the cancers in our profession. There are attorneys who have multiple client and consumer complaints. They stole money from their clients. The Bar knows who they are. Many members of the profession know who they are. They do real harm to clients and the public. Bare went after them. David Clark went after them. They were effective in going after them. Hunterton is doing nothing more in going after them than his predecessors to root out the bad apples. The difference is that Rob and David were fair and proportionate in seeking to ensure that the goal of lawyer discipline is to protect the public from those who are a threat of future harm. They took out the bad apples without doing unnecessary harm to lawyers who did no harm but did violate the RPC. Hunterton seems to not have read the ABA Model Standards or have any concept that there is to be no punitive or retributive motive in discipline. I know a couple members of the OBC who have privately indicated that (while Clark was slow in prosecuting cases) that Hunterton has made no secret of the fact that he is going to create some sacrificial lambs for his goal of sending a message. When I look at attorneys who are causing harm to our profession, Hunterton is on that list now.
The common theme everyone seems to agree on is that OBC is now far too aggressive in pursuing minor infractions where there was no real harm, and seeking punishment which is grossly out of whack with the offense alleged.
The "sacrificial lamb" pert , if true, is quite disturbing. It is callousness of a staggering degree. People sacrifice so much to become an attorney, and if it wrongfully taken from them without compelling cause, I find that heinous beyond measure. But, again, although there is no doubt that current Bar Counsel, by his own acknowledgment, is quite aggressive about pursuing offenders, I have no way of knowing if he actually offered the sacrificial lamb remark.
It is a very tough row to hoe to replace BOG members with people who are sympathetic to the position that the Bar is now far too aggressive about prosecutions. But, two methods could possibly bear fruit.
First, find candidates to run(either for openings or against incumbents) who are supportive of the position that the Bar is now too aggressive–and explain how and why they are too aggressive, and what the candidate's view is of how discipline should occur, along with its goals and aspirations.
Second, form a coalition of attorneys who, in fairly large numbers, will contact a BOG member running for re-election, either by calling them, emailing them or whatever. These BOG members will ignore a stray complaint or two, but they know they must be responsive to a high number or coalition of attorneys who contact them.
Once these BOG members know that if they are not receptive, they risk not being supported, or worse, having an opponent who will be supported by the coalition, the incumbent then by necessity will become responsive. After all, most BOG members, IMO, are pretty much politicians, and in for the recognition, perceived power, to hop knob with others they perceive as powerful or influential, to benefit to their practice, etc. They are not truly in it, as they represent, to sacrifice their time to better the practice of law in the state, or to benefit the community. So, their primary objective, IMO, is not to stand by a principle even if it cost them re-election. Their primary purpose is to get re-elected, and if they are forced to compromise their believes and principles to get re-elected, they will simply rationalize after the fact that them evolving and changing their position was ultimately the best thing for the profession and the community.
So, the ace up the sleeve of the disgruntled masses of attorneys who fear wrongfully inflated discipline is to exploit the fact that these incumbents, in my view, for the most part put top priority upon their re-election and continued survival on the board.
Don't let them get away with their re-election form letters spouting their supposed accomplishments.
The only things specific of any merit those re-election letters ever reference is issues such as unauthorized practice, attorney advertising, etc. But those issues were really far more relevant and received far more attention in prior terms of the Board.For the upcoming term, if attorneys value their livelihood, they should insist that this issue of disproportionate discipline be addressed.
And, BTW, I'm not advocating for the removal of someone. If current leadership can adjust, fine. If it's naive to think they can, we will find that out in time.
Well stated 9:53. The current BOG did not have an axe per se to grind with attorney discipline. However Kim Farmer and Board got pressure from the NSC (specifically one justice who hails from the north) that cases were going too slow and that this particular justice wanted it addressed. The BoG and its Executive Director (willing to do whatever Carson City wants) took up the charge. 9:53, you are exactly right. The BoG are politicians. They many times are not necessarily thinking of the best interests of the State Bar and its members; they want to do what will be perceived as publically popular and to curry favor with Court (who are also politicians).
Your recommendations that the BoG and its constituent arms know that they are pursued a bridge too far is excellent.
I downloaded it also, just to be safe, because it's hilarious
I'm glad I wasn't the only one that thought of downloading it just in case it got pulled later.
Hey is there anyway I can get a copy of that or a link to download it?
It's back on line: https://tinyurl.com/drunkdrtestifies
oh rick rolling.. How I have missed you
Concerning the Kirstin Lobato case,if the reporting over the years is to be believed, it would be highly unlikely that two separate juries would get it so wrong.I didn't sit in on any of the proceedings, and never really spoke to anyone with inside info., so when it comes to this case I am sort of like a lay person–I really only know what the media reports.
And based on such reporting over the years, including the latest article available on this blog,it's startling how this could have twice been prosecuted all the way to trial, and both times resulting in guilty verdicts.
If the reporting is to be believed, not only does it appear the prosecutors should have perceived that the guilt beyond reasonable doubt burden could not remotely be met, but it appears they should have actually been persuaded of her factual innocence.
Yet twice she in fact was convicted. So, are we being offered a skewered version of the facts, with certain other critical info. being omitted? Or is it simply a matter that despite the huge holes in the case many jurors simply assume that if it goes all the way to trial that the Defendant must be guilty?
I'm just having a lot of trouble reconciling the two convictions vs. what the media has chosen to focus on concerning the case. Even considering how unpredictable, biased or ill-informed jurors can be, I'm still stunned there were two convictions against this young woman if the facts are essentially as presented in the media.
Also, if the whole matter has been accurately reported, with no critical info. omitted, many judges would have been quite pro-active and, during various pre-trial proceedings, clearly expressed their concerns over the huge holes in the evidence, as well as the supposedly compelling evidence supporting factual innocence.
So, I am asking for some help. What is really going on? What are we not being told? What is not being reported in the media outlets?
Goes to show you when prosecutors are allowed to break the rules, they can literally get away with taking away someone's life.