- law dawg
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- NV Energy peak demand charge, tweak to net metering, violate state law, say experts. [Nevada Current]
- Officers testify fatally shot Black Lives Protester pointed rifle at them. [RJ]
- Murder-suicide suspected after couple, ages 91 and 92, found dead in Sun City Summerlin. [RJ; 8NewsNow]
- CCSD: 142 children hit by cars since beginning of school year; half of crash involved distracted students. [8NewsNow]
- NBA’s Rozier, Billups charged in sports betting and Mafia-backed poker schemes. [RJ; 8NewsNow; News3LV]
- CCBA has a special early bird offer if you join/renew before November 1: a 2-hour Ethics CLE entitled “Defending a State Bar Grievance.” What are your thoughts on voluntarily joining affinity bar associations? Is it worth your time and money? Which one(s) give you the most benefit? Any recommendations?
Comment yesterday said there was a $55k attorneys fee award in the Mormon temple litigation.
Yep. The organization that didn’t exist at the time of the City Council meeting, and thus didn’t have standing, has an order against it to pay the City $55k in attorneys fees. That is joint and several with its counsel.
Im guessing the hastily created organization doesn’t have $55k.
Who is the attorney on the hook? Is it Evan Schwab?
What form is this hastily created organization taking or has it taken? Unincorporated association? Formal not-for-profit corporation?
If it didn’t have a proper, separate legal identity at the material times, wouldn’t there be a case the underlying members at the material times are also jointly and severally liable? Let them sue each other for contribution and indemnity?
Nevada Rural Preservation Alliance. (E41963932024-2
) It looks like it was created specifically for this lawsuit. I don’t know enough about the entity to have an opinion about whether there is an alter ego claim. I don’t have enough experience in civil litigation with the City of Las Vegas to know whether they will actually try to collect on this judgment.
Joint and several with counsel? Ouch.
That whole thing left a bad taste in my mouth. Too bad he doesn’t have Mormon church millions
Some Postum will take that bad taste out real quick.
The attorneys fees were for the CLV, not the church.
Well how am I supposed to use this attorneys fee award to attack the Church then?
CCBA is awesome. Great events, great CLEs and great perks.
Why would a peaceful BLM protestor have a rifle? The police testimony sounds credible.
Except the video belies the testimony and the LVMPD detective who investigated it said that the evidence does not support that story. I am an NRA member and Republican. But if we are going to allow open carry, then we cannot only shoot the liberals to open carry.
And the police investigator found that none of the video evidence they have shows the guy pointing a rifle at police.
And none of the police officers involved in the shooting were wearing body cameras.
Then if the video shows otherwise and that it wasn’t a clean shoot, why did the DA Wolfson not charge the officers?
Is this a serious question? Brandon Durham was the victim of a crime and was shot dead in his home in his underwear. Officer not charged. We don’t charge cops in this town.
Is this a serious answer? The case at issue is not about a guy in his undies being shot in his home. It’s about a BLM activist who pointed a rifle at police not at his home or in his undies. You sound like someone who doesn’t back the blue.
You are supposing that the rifle was pointed at police. That does not seem to be in evidence at the moment.
Video says that did not happen. LVMPD detective who investigated determined that did not happen. The point that 12:03 made is that cops do not get charged in this town even on egregious facts. You have evidence to dispute that? Let me put it in terms I suspect you would understand: stand by and stand down.
Brandon Durham had an unconscious woman on his floor and was engaged in a crime of his own at the time he was shot (though LVMPD didn’t know at the time). He’s hardly the poster child to rally behind.
He was holding a pro-2A sign, so not a big shock that he was legally open carrying. Are you saying that anyone open carrying is by nature a threat?
No, there’s a guide to determine if someone open carrying is a threat.
Affinity bar associations are fantastic. Asian, Latin, Black, South Asian, Jewish Bar associations all have great networking opportunities and the NBA and SABA give substantial scholarships.
We have had 3 cases now where insurance adjusters and/or defense counsel insisted there was only a 25/50 or 100/300 policy and in fact there was a $1 million policy. Defense repeatedly asked to settle for “policy limits” which were peanuts compared to the actual policy limits. We ae going to start sending out Letters to the insurance companies and defense counsel which reminds them of the following:
The plain language of NRCP 16.1(a)(1)(A)(iv) requires disclosure of any insurance agreement that may be liable to pay a portion of a judgment. See also Vanguard Piping v. Eighth Jud. Dist. Ct., 129 Nev. 602, 605, 309 P.3d 1017, 1018 (2013). The disclosure must be made “without awaiting a discovery request.” NRCP 16.1(a)(1)(A) (emphasis added). Therefore, in Nevada, one need not send a separate discovery request in order for a defendant to be obligated to disclose applicable insurance policies. The Supreme Court in Vanguard made clear it is not up to the defendant or its insurance company to decide how much insurance coverage to disclose. Under current NRCP and Supreme Court precedent, any and all policies must be disclosed.
Rule 26(g)’s Automatic Certification
Under NRCP 26(g), counsel automatically certifies (similar to the automative Rule 11 certification) that all discovery filingsare: 1) complete and correct as of the time it is made; and 2) “consistent with these rules and warranted by existing law”. NRCP 26(g)(1)(B)(i). The certification applies to initial mandatory disclosures as well as all other discovery pleadings. It applies to “[e]very disclosure and report made under Rules 16.1 . . . and every discovery request, response, or objection.” Emphasis added. Thus, in Nevada, an attorney signing an initial disclosure is certifying to the court that they have made an inquiry and therefore believe the disclosure is complete.
A defendant’s initial mandatory disclosures certify accuracy regarding the disclosure of the existence of “any” insurance policy that may be liable to pay a portion of a judgment. These disclosures allow “counsel for all parties to make a realistic evaluation of the case, so that settlement and litigation strategy are based on knowledge of the size of the fund that is available for the satisfaction of any judgment obtained, rather than speculation.” Sakakibara v. Spectrum Gaming Group, LLC (D. Nev. 2010) 2010 WL 2947381, at *2.
Moreover, because the certification speaks as of the time it is made, a false declaration cannot be undone by supplementation. Once counsel has violated Rule 26(g), the mandatory nature of the sanction must attach. Equal Emp. Opportunity Comm’n v. Bok Fin. Corp., No. CIV 11-1132 RB/LFG, 2013 WL 11955289 at *3 (D. N.M. Mar. 1, 2013) (“Stated differently, the Rule 26(g) certification, like the assurance attributed to Abraham Lincoln, is that the attorney’s word is the attorney’s bond.”) (citing FRCP 26(g) Advisory Committee Notes).
Rule 26(g) Sanctions are Mandatory Against Signing Counsel
Rule 26(g)’s plain language applies personally to counsel who signs the pleading. The Federal Advisory Committee Notes reported that “Ruled 26(g) makes explicit the authority judges now must impose appropriate sanctions and requires them to use it.” Morrison v. Quest Diagnostics, 2016 WL 355120 at *5 (D. Nev. Jan. 27, 2016). According to the Advisory Notes, Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. Wiideman v. Bayer, 996 F.2d 1230 (9th Cir. 1993) (citing FRCP 26 Advisory Notes).
Sanctions are mandatory when counsel violates Rule 26(g) without substantial justification. Rule 26(g)(3). See also Wiideman v. Bayer, 996 F.2d 1230; Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 638 (D. Colo. 2007). (Thank Jay Young for all of this research).
I have always demanded (20+ years) a copy of the declarations page in my initial policy limits demand. Always get it and don’t give up until I do. Also quote 16.1 in the letter.
How is this even a question?
That is what we thought until it happened 3 times and they were pressing us to settle.
Insurance companies are DISHONEST!?
The insurance industry got a bill passed where they are not required to disclose policy limits initially on a claims demand or something like that. It was a travesty. Their thinking was that if they disclosed the policy, then the demand would be the policy. Instead the use it to stonewall. Then even when they disclose they don’t disclose excess or umbrella or other policies.
This was a few sessions ago. If anyone has the bill or statute please respond. Going from memory.
You’re thinking of SB 162, passed by in 2015, which repealed NRS 690B.042 in its entirety.
That statute required automobile insurers to disclose their insured’s policy limits once an injured claimant provided at least one medical report, record, bill, or a written authorization to obtain medical records. SB 162 ended that.
Big W for the black hats in town.
@2:28 “Their thinking was that if they disclosed the policy, then the demand would be the policy.”
I don’t have a dog in this fight (except as a driver with insurance in excess of NV minimums), this is exactly what PI attorneys do. I see it as a disincentive to having lots of insurance. I can make myself judgment proof pretty easily. But if I have a $500k policy and get in an accident – the PI demand will magically be for $500k.
I don’t disagree that insurance companies suck to deal with and I’m sure they stonewalled. But under our tort system, the value of a person’s injury is primarily based on the tortfeasor’s resources. How does that makes sense? It’s the social lottery.
Why can’t we just have universal healthcare – it would cost society less and injury lawyers could only argue about loss of consortium and potential earnings and whatever other categories you creative PI attorneys come up with.
“Let me get you 5 unnecessary injections, and a surgery letter from a local felon saying how you’ll need a future fusion worth exactly policy limits!” Convenient how the fraud is so neat and organized.
I don’t practice personal injury but what if there is an excess policy involved but upon initial (good faith) evaluation, it doesn’t appear excess policy would be implicated. Does a defendant need to disclose it with initial disclosures or when there is a reasonable possibility (again, assuming defendant acting and evaluating in good faith) the excess bottom limit could be reached?
NBA Gambling and Magia
Watched the televised announcements this morning.
Listening to each of the various agencies it was a real circle jerk. Each speaker was heavily self congratulatory, often with overly dramatic language.
what’s the rule on flat fee agreements again? are they allowed?
They are. Hold the money in IOLTA until “earned” which can be based on “milestones” or stages of the case. Fees earned must always be reasonable.
I took the Court’s holding as “guessing” how much to expect up through a stage of the case. I charge “this much” before initial appearance. I charge “this much” before we set preliminary hearing (early offers, discovery review). “This much” for preliminary hearing. “This much” for DC sentencing. Trial retainers are different. Clients have appreciated knowing what to expect based upon when they choose an off-ramp.
This is exactly why the answer is no. Example, you charge $2000 to settle a misdemeanor case which settles at the first apperance, and for fun you’re called up the instant you walk in the courtroom. Between that, reading a complaint or citation if you even had it, and maybe a .5 interview with the client your total actual time spent on the case is less than an hour. Is your fee “reasonable?” Clients definitely appreciate the flat fee but that consideration was absolutely lost on the supremes. and nothing remains except risk.
Part of the reason I used to do flat fees is because, for a given task, with some clients it will take 35% of the median time for all similar cases, and for another client it will be 200%. It was a great arrangement for clients because it eliminated the risk of a higher than anticipated attorney invoice because of unexpected delay or difficulty. The 35% case evened out the 200% case. But if the State Bar looks at the 35% case in isolation, it will be absolutely “unreasonable” because it appears I was paid roughly 3x my hourly rate. I’m very busy, and I can just charge hourly. So that’s what I do now. No more flat fees. Clients are left with the risk associated with delays and unknown complications. I wish it weren’t this way. Flat fees were really fantastic for some services, but now they are not worth the risk.
Flat Fees
For many years the ABA, state bars and academics praised flat fee arrangements as favoring consumers and providing greater legal services access. SBN even had an example flat fee agreement on its website.
OBC overstepped on this one and was the only real voice in the NSC discipline case.
Totally agree. They have the potential to make attorneys accessible. People of limited means shut down when you tell them “it depends” in response to a question about how much something will cost. Really a bummer that we have such a strong disincentive now.
Flat Fees in PI.
How are PI firms dealing it? For example, a fee agreement of 35% pre-trial, 45% if trial. But the firm was able to settle it with one phone call, takes the full 35%.
It’s not clear if the same analysis will hold in a contingency fee case, but there have been some cases where attorneys were taken to task on the ethics of just the scenario you pose, and they’ve been obligated to reduce the contingency fee they take when the contingency fee in reality is grossly disproportionate to the work actually performed.
This raises a good point. Say you take a PI case on a contingency and settle it with one letter, and perhaps 3 hours into the case, for a payout of $30,000. Is that reasonable? On an hourly comparisoin, obviously not. But under the same scenario, you take this to trial with 1000 hours and thousands in costs, and recover the same $30,000 is that reasonable? Same analysis with flat fees. The only difference is the PI attorneys have better lobbying abilities.
This. Like 80% of the bills affecting civil lit are put forward by the NJA. I’m sure they’re doing to benefit the poor and down trodden and not themselves .
The overarching principle is that the fee must be “reasonable.” In the PI context you can get scenarios where the liens are relatively high as compared to the settlement amount, and charging a full fee would result iin the lawyer making more than the client. In that situation, I almost always adjust the fee so that doesn’t happen. Nothing specifically mandates that I do so, but I feel that the spirit of our rules requires it.
So let’s expand the hypothetical.
Flat fee for estate planning. It is not the number of hours you put into the matter, you are paid for what you know that will protect them and their legacy.
For lawyers, it is often not how many hours you worked but knowledge and experience that provides a satisfactory solution.
Everytime this topic comes up, someone comes and says, “just be reasonable.” *Reasonable* is SUBJECTIVE. That’s why its dangerous for practitioners. It’s almost as if the person who continues to make this comment has never engaged in private practice.
actually – reasonableness is suppose to be the opposite of a subjective standard. See Torts 101 – Duty of a REASONABLE PERSON.
10:44 AM here. I’m getting “actuallied” by a first year associate.
If its not objectively ascertainable prior to the OBC referral, it’s subjective. The tort standard you quote is an example of lawyers being silly and trying to claim that a subjective standard isn’t really subjective, as long as the person we’re asking whether it’s reasonable isn’t me, you, or anyone that actually exists.
no
They are allowed, but you are foolish if you are still doing them. Protect yourself by going straight up hourly.
Sadly you are correct. The OBC reveals their lack of understanding of the actual practice of law (or running a business). Flat fees are designed (as mentioned above) to provide access to good lawyers for a flat fee up front. No surprises down the road. Access to justice requires this kind of flexibility. Until this issue came up, I rolled my eyes at the complaints on the blog about the OBC….not anymore.
Well, at a minimum my billing will longer be based on 10th/hr, going to quarter hour increments or any part thereof.
absolutely part of the solution yes. No harm in raising rates either.
Bad facts made bad law. The attorney that got sanctioned should have refunded some of the money. He didn’t do all the work. In examples of PI case or probate, the attorney is completing the work. In the case that delivered the shit opinion the attorney didn’t do the immigration application as the client changed their mind. In a PI case if the client changes their mind, then there is no case and no money to get paid.
Bad facts …
OBC screwed up the discipline matter. It should have been really simple, refund the money. Instead OBC turned something simple into a decision on flat fees, that will reverberate and has caused uncertainty in the Bar and potentially a never-ending source of future matters on all the different permutations of fee related cases.