As crippling attack continues, Lombardo shares resources for state ransomware attack; defends absence from first briefing. [News3LV; RJ; Nevada Current; TNI]
The Nevada Supreme Court and Daniel Hooge seem to misunderstand that I’m not obligated to offer or accept flat fees. (See Justice Stiglich’s dissent). Sull was the end of our firm offering flat fees. There’s enough demand I don’t have to offer them, even though I liked to give the client flexibility and certainty of a flat fee. Hooge does not understand that some clients *hate* to be told, “It depends,” when they ask how much something is going to cost. But that’s what they get now, no more flat fees for me.
Sull’s practice primarily consists of immigration matters. In June 2021, a preexisting client retained Sull to prepare and file an E-2 visa application. For this representation, the client agreed to pay Sull a flat fee of $15,000, plus a $750 client file fee. ” The client wired the full $15,000 to Sull’s firm’s operating account.
In December 2021, the client informed Sull that he did not want to move forward with the visa application. As a result, Sull never filed the application. The next month, the client requested that Sull provide an accounting of work performed on the matter and a refund of any unearned fees. Sull promised to provide the requested accounting within a month but failed to do so. The client continued to request an accounting for several months and eventually filed a grievance with the State Bar. After the parties participated in a fee dispute mediation, Sull provided the client with an accounting. In early 2023, Sull refunded the client $3,500.
Although the rules allow a lawyer to charge a fixed or “flat” rate for legal services, the lawyer must still perform work to earn the fee. See RPC 1.5(a)(8) (permitting a lawyer to charge a fixed fee for services). An attorney cannot avoid accounting for work performed by labeling the fee as a “flat fee.
“The rules require attorneys to deposit “all funds received or held for the benefit of clients . . . , including advances for costs and expenses,” into a designated client trust account, “to be withdrawn by the lawyer only as fees are earned or expenses incurred.” RPC 1.15(a), (c). We conclude that Su11 violated RPC 1.15 when she charged a flat fee for a limited scope representation but failed to deposit that fee into a client trust account. We further conclude that Su11 violated RPC 1.16(d), which requires an attorney to “refund[] any advance payment of fee[s] or expense [s] that has not been earned or incurred” when the client terminates that representation.
Sull violated the Nevada Rules of Professional Conduct by mishandling client funds and by failing to account for and refund client funds after the client terminated her representation. Given the clear evidence of these violations, we reverse the hearing panel’s order dismissing the disciplinary charges against Sull. Considering the aggravating and mitigating circumstances, particularly that Sull has had no prior attorney discipline, we conclude that a reprimand is sufficient to serve the purpose of attorney discipline.
It is interesting that the Bar and the Nevada Supreme Court relied on an ABA opinion that was issued after they issued a hearing. Basically, they have notified us that they will create new rules because they can. No more flat fees for me.
Guest
Anonymous
August 29, 2025 9:55 am
Re flat fees: Deny the right to contract how people want, deny client’s choice, eliminate one of the only ways the poorest among us get legal services, and contradict what most states allow.
They did something similar re the ability to contract around the med mal fee cap, which I think is contrary to the right to contract. Interestingly, Stiglich authored that opinion, but was the lone dissenter in Stull
Guest
Anonymous
August 29, 2025 9:57 am
Please tell me my constitutional lawyer colleagues, the flat fee ruling cannot be constitutional can it?
I think you would’ve found a sympathetic US Supreme Court in 1905 but I fail to see any federal constitutional violation that a modern court would recognize.
Guest
Anonymous
August 29, 2025 10:03 am
The decision in Sull is basically how I treat flat fees; I put them in the trust account and withdraw them as they’re earned until the matter is concluded at which point if there’s anything left, I write it up and take the profit. Sometimes I turn a tidy little profit if the matter ends of being simpler than expected (or, more often, the client cooler than expected). If the “little” profit ends up being more than I’m comfortable with, I kick a bit back to the client. Sometimes, on the other hand, a flat fee matter ends up being a black hole of difficulty or assholery and I lose a bunch of time/money. On the whole, for most flat fee matters, it ends up balancing out and I do fine.
The thing I don’t like is having to spell out that I’m actually “earning” the fee on an hourly basis in the fee agreement because it will lead to me having to explain to the client that, yeah, I’m basically gambling on them being an easy matter I’ll make money on, and they’re gambling on their matter being a difficult one that will be much more expensive to handle hourly than on a flat fee basis. Oh well.
Is there something in Sull that protects keeping the excess when you’re done with the representation? Because otherwise that seems to me that you’re charging a fee that wasn’t earned (you never did the work to earn that remaining portion). That seems like a crazy result to me but Sull in general seems bizarre.
I read it to mean that you can keep the fee once the work is done because you’re getting paid to set up an LLC (or do a divorce, or work out a plea, or write an estate plan, or whatever) but you can’t put the money in your operating account until you’ve earned it (which I don’t) and you have to provide a refund of unearned fees if you terminate representation prior to completion. Which, on one hand kind of defeats flat fee representation, but on the other hand, has always seemed fair to me. For something that’s a form product (like an estate plan) I don’t deliver the papers until I’ve earned my fee to make sure they don’t sack me and then keep the product, but other than that, it’s always worked out okay.
Not trying to say this is a race issue, but aren’t the approaches in MacArthur and Guymon disparate? One pushes a DA and gets a fine with mandatory classes, yet one is a “gorilla pimp” and gets merely probation. Not sure about the severity of probation, but I feel that Guymon got off easy.
It was. Motion for rehearing, then en banc. Then you had amicus briefs basically saying, “Yo, WTF?” Of course, the new opinion copied and pasted heavily from the old opinion.
If I paid an attorney $15,000 and then decided not to go forward with the case, and the attorney did little work and then failed to provide me with an accounting until I went to the Bar, would I be upset? Yes, I would.
I would be upset with myself that I signed a contract to pay a lawyer $15000 and then decided I didn’t need the legal services. But I took on the risk that I would change my mind when I signed a flat fee contract instead of paying by the hour (a risk that I was in the best position to assess and that I had full control over, for the record).
You failed to recognize that the work was completed. The client decided to not pursue it. That is wholly different. If Sull did not do the work that would be another matter.
Guest
Anonymous
August 29, 2025 1:28 pm
I respect the intellect and the integrity of our Supreme Court Justices (no, really) but I honestly think they should be required to take a six-month unpaid sabbatical and go earn their keep in a firm that takes family cases, low-end PI cases, and basically anything that comes through the door. Most have either been on the government payroll most of their careers, or have represented high-end commercial clients. Nothing wrong with either of those things, but they are not in touch with how private practice works for about 3/4 or so of the bar. Hooge should have to do the same. He knows nothing about the practice of law.
I really respect Linda Bell; however she has never faced taking a flat fee in her life.
Guest
Anonymous
August 29, 2025 1:34 pm
Claggett’s office just hit for $950 million in a bad baby case in Utah. It sounds like this was a bench trial. Can anyone confirm? Who was defending? Would be interested to hear insights from anyone with an active practice there.
Bench trial. D was not even there. Need to go thru BK Court to try and get some money. My guess is that the family never sees much if anything. But great advertising for Sean. Hopefully, there was no offer that the family could have (and should have) taken.
I haven’t worked in BK for years, but what about the automatic stay? Would they not have to agree to seek only insurance, if there is any, and wouldn’t insurance retain counsel if so? Or would a state court trial be allowed to proceed just to establish the amount of the claim? As I said, it has been decades since I set foot in BK Court, so excuse my ignorance here.
That’s pretty much accurate. Generally seek relief to liquidate damages and either limited to insurance, or if there are more claims to be made on that same policy, then it’s limited to $X in the Ch 11 plan so the plan can be confirmed while the case moves forward and after liquidated, it gets added as an unsecured claim like everyone else and the insurance company dumps money into the plan for payment of those claims.
Yep – this sounds pretty much like the alkaline water biz bankruptcy. A billion here, a billion there, and it comes down to fighting over a pro-rata share of insurance coverage in BK court.
Not even close to the same. Liberty mutual pulled out of the state for a reason, it is not because they think they only have to pay $10 million for real water. They screwed up and have a big bad faith problem on their hands.
Steward denied the allegations and any liability in May 2024 court papers but later that year its lawyers asked to withdraw from the case on the grounds they were no longer getting paid and were having trouble getting into contact with the company. The judge approved their withdrawal but the company never appointed new lawyers.
RE: Sull
The practical effect is the end of flat fee arrangements, instead the pre-payment has become merely an advance or fee deposit worked off in hourly increments.
The consumer advocates, legal aid, and legal lscholars, opined in the past that a true flat fee benefited the public since the lawyer was taking the risk that the matter would take more time or be more difficult, but also the benefit of being able to get the service completed in less time, resulting in less costs to the client and the security of knowing a fixed amount for said services. Risk – Reward. Under Sull it is now all risk for the lawyer.
Looked at another way, the shoe next to drop is PI contingency fees. A PI attorney will be only able to bill for the documented time put into the case.
Whattya gonna do with the Manfred Man in the 10th???
Guest
Anonymous
August 29, 2025 10:25 pm
I don’t understand why so many think Sull is the end of flat fees. NSC is simple saying you have to complete the work you agreed to do before you can pay the fee to yourself. That’s not that hard of a concept to understand or implement. If you don’t do the work you agreed to do, whether that is because the client changed their mind or you just fail to do it, why should the attorney keep the fee for work not performed? Accept the flat fee work, but keep the funds in your trust account until you have done the work you agreed to do.
As far as accounting for the work, that doesn’t mean you have to bill hourly. Build in benchmarks in your flat fee agreement, then you can account for your work by providing evidence that you completed the work to get to that benchmark. An affidavit of counsel explaining the work performed can “account” for that work as much as can hourly billing entries.
@10:25
Hey Hooge, glad to see you here.
“why should the attorney keep the fee for work not performed?”
You entirely miss the purpose of flat fees. The attorney quotes a price and is stuck with it. If it takes more time and effort, the attorney sucks it up. If he can get the work done quickly he has produced the requested result.
By anology, a contractor quotes a firm fixed price for a specific task. How is this different?
“An affidavit of counsel explaining the work performed can “account” for that work”
That is naive. In every fee dispute case, malpractice and discipline matter, an hourly time sheet is the only defense.
Want to alert my fellow attorneys to an ongoing issue in/with Department 23. I want to lead off with the qualifier that I generally think she does a pretty decent job (unlike her neighbor in 24). However three (3) times in the last six months my office has gotten a minute order to show cause why we have not submitted an Order on a decision that was never served on us. The department issues minute orders that it does not serve. This is becoming an increasing issue with that department. If you have pending motions, check the docket and see if decisions were issued that you never knew were issued.
The Nevada Supreme Court and Daniel Hooge seem to misunderstand that I’m not obligated to offer or accept flat fees. (See Justice Stiglich’s dissent). Sull was the end of our firm offering flat fees. There’s enough demand I don’t have to offer them, even though I liked to give the client flexibility and certainty of a flat fee. Hooge does not understand that some clients *hate* to be told, “It depends,” when they ask how much something is going to cost. But that’s what they get now, no more flat fees for me.
Sull’s practice primarily consists of immigration matters. In June 2021, a preexisting client retained Sull to prepare and file an E-2 visa application. For this representation, the client agreed to pay Sull a flat fee of $15,000, plus a $750 client file fee. ” The client wired the full $15,000 to Sull’s firm’s operating account.
In December 2021, the client informed Sull that he did not want to move forward with the visa application. As a result, Sull never filed the application. The next month, the client requested that Sull provide an accounting of work performed on the matter and a refund of any unearned fees. Sull promised to provide the requested accounting within a month but failed to do so. The client continued to request an accounting for several months and eventually filed a grievance with the State Bar. After the parties participated in a fee dispute mediation, Sull provided the client with an accounting. In early 2023, Sull refunded the client $3,500.
Although the rules allow a lawyer to charge a fixed or “flat” rate for legal services, the lawyer must still perform work to earn the fee. See RPC 1.5(a)(8) (permitting a lawyer to charge a fixed fee for services). An attorney cannot avoid accounting for work performed by labeling the fee as a “flat fee.
“The rules require attorneys to deposit “all funds received or held for the benefit of clients . . . , including advances for costs and expenses,” into a designated client trust account, “to be withdrawn by the lawyer only as fees are earned or expenses incurred.” RPC 1.15(a), (c). We conclude that Su11 violated RPC 1.15 when she charged a flat fee for a limited scope representation but failed to deposit that fee into a client trust account. We further conclude that Su11 violated RPC 1.16(d), which requires an attorney to “refund[] any advance payment of fee[s] or expense [s] that has not been earned or incurred” when the client terminates that representation.
Sull violated the Nevada Rules of Professional Conduct by mishandling client funds and by failing to account for and refund client funds after the client terminated her representation. Given the clear evidence of these violations, we reverse the hearing panel’s order dismissing the disciplinary charges against Sull. Considering the aggravating and mitigating circumstances, particularly that Sull has had no prior attorney discipline, we conclude that a reprimand is sufficient to serve the purpose of attorney discipline.
And?
They wanted to show off their ability to take the case and have Chatgpt summarize it I guess.
It is interesting that the Bar and the Nevada Supreme Court relied on an ABA opinion that was issued after they issued a hearing. Basically, they have notified us that they will create new rules because they can. No more flat fees for me.
Re flat fees: Deny the right to contract how people want, deny client’s choice, eliminate one of the only ways the poorest among us get legal services, and contradict what most states allow.
They did something similar re the ability to contract around the med mal fee cap, which I think is contrary to the right to contract. Interestingly, Stiglich authored that opinion, but was the lone dissenter in Stull
Please tell me my constitutional lawyer colleagues, the flat fee ruling cannot be constitutional can it?
I think you would’ve found a sympathetic US Supreme Court in 1905 but I fail to see any federal constitutional violation that a modern court would recognize.
The decision in Sull is basically how I treat flat fees; I put them in the trust account and withdraw them as they’re earned until the matter is concluded at which point if there’s anything left, I write it up and take the profit. Sometimes I turn a tidy little profit if the matter ends of being simpler than expected (or, more often, the client cooler than expected). If the “little” profit ends up being more than I’m comfortable with, I kick a bit back to the client. Sometimes, on the other hand, a flat fee matter ends up being a black hole of difficulty or assholery and I lose a bunch of time/money. On the whole, for most flat fee matters, it ends up balancing out and I do fine.
The thing I don’t like is having to spell out that I’m actually “earning” the fee on an hourly basis in the fee agreement because it will lead to me having to explain to the client that, yeah, I’m basically gambling on them being an easy matter I’ll make money on, and they’re gambling on their matter being a difficult one that will be much more expensive to handle hourly than on a flat fee basis. Oh well.
Is there something in Sull that protects keeping the excess when you’re done with the representation? Because otherwise that seems to me that you’re charging a fee that wasn’t earned (you never did the work to earn that remaining portion). That seems like a crazy result to me but Sull in general seems bizarre.
I read it to mean that you can keep the fee once the work is done because you’re getting paid to set up an LLC (or do a divorce, or work out a plea, or write an estate plan, or whatever) but you can’t put the money in your operating account until you’ve earned it (which I don’t) and you have to provide a refund of unearned fees if you terminate representation prior to completion. Which, on one hand kind of defeats flat fee representation, but on the other hand, has always seemed fair to me. For something that’s a form product (like an estate plan) I don’t deliver the papers until I’ve earned my fee to make sure they don’t sack me and then keep the product, but other than that, it’s always worked out okay.
That makes a lot of sense.
Bad facts result in bad law.
Not trying to say this is a race issue, but aren’t the approaches in MacArthur and Guymon disparate? One pushes a DA and gets a fine with mandatory classes, yet one is a “gorilla pimp” and gets merely probation. Not sure about the severity of probation, but I feel that Guymon got off easy.
Guymon won the lottery when his case was assigned in justice court. His district court judges were going to be either DC25 or DC32.
He gets a different justice court assignment that tracks to a different district court, he may have been sent to prison.
So do I. I hope his disbarment remains in place.
He stipulated to disbarment so that is permanent.
Comment naming “victim” in MacArthur case was removed for rightly suggesting they should be shamed?
I get it, he seems like the type to try to get everyone arrested for minor transgressions.
Jesus. I thought Sull was resolved a year ago.
It was. Motion for rehearing, then en banc. Then you had amicus briefs basically saying, “Yo, WTF?” Of course, the new opinion copied and pasted heavily from the old opinion.
YEah, the fact that they doubled down on this after an opportunity to fix it entirely or at least scale it back, is disturbing and disappointing.
If I paid an attorney $15,000 and then decided not to go forward with the case, and the attorney did little work and then failed to provide me with an accounting until I went to the Bar, would I be upset? Yes, I would.
I would be upset with myself that I signed a contract to pay a lawyer $15000 and then decided I didn’t need the legal services. But I took on the risk that I would change my mind when I signed a flat fee contract instead of paying by the hour (a risk that I was in the best position to assess and that I had full control over, for the record).
But u wouldn’t be upset if the lawyer did 45k worth of work would you?
You failed to recognize that the work was completed. The client decided to not pursue it. That is wholly different. If Sull did not do the work that would be another matter.
I respect the intellect and the integrity of our Supreme Court Justices (no, really) but I honestly think they should be required to take a six-month unpaid sabbatical and go earn their keep in a firm that takes family cases, low-end PI cases, and basically anything that comes through the door. Most have either been on the government payroll most of their careers, or have represented high-end commercial clients. Nothing wrong with either of those things, but they are not in touch with how private practice works for about 3/4 or so of the bar. Hooge should have to do the same. He knows nothing about the practice of law.
I really respect Linda Bell; however she has never faced taking a flat fee in her life.
Claggett’s office just hit for $950 million in a bad baby case in Utah. It sounds like this was a bench trial. Can anyone confirm? Who was defending? Would be interested to hear insights from anyone with an active practice there.
Bench trial. D was not even there. Need to go thru BK Court to try and get some money. My guess is that the family never sees much if anything. But great advertising for Sean. Hopefully, there was no offer that the family could have (and should have) taken.
Non-dischargeable punitives maybe?
If the Defendant was defaulted and this was basically a default prove-up, good luck getting any BK Court to enforce nondischargability
Lots of messes in the BK. https://www.cbsnews.com/news/steward-health-care-hospital-bankruptcy-filing-greed-misconduct/
I haven’t worked in BK for years, but what about the automatic stay? Would they not have to agree to seek only insurance, if there is any, and wouldn’t insurance retain counsel if so? Or would a state court trial be allowed to proceed just to establish the amount of the claim? As I said, it has been decades since I set foot in BK Court, so excuse my ignorance here.
That’s pretty much accurate. Generally seek relief to liquidate damages and either limited to insurance, or if there are more claims to be made on that same policy, then it’s limited to $X in the Ch 11 plan so the plan can be confirmed while the case moves forward and after liquidated, it gets added as an unsecured claim like everyone else and the insurance company dumps money into the plan for payment of those claims.
Yep – this sounds pretty much like the alkaline water biz bankruptcy. A billion here, a billion there, and it comes down to fighting over a pro-rata share of insurance coverage in BK court.
Not even close to the same. Liberty mutual pulled out of the state for a reason, it is not because they think they only have to pay $10 million for real water. They screwed up and have a big bad faith problem on their hands.
Steward denied the allegations and any liability in May 2024 court papers but later that year its lawyers asked to withdraw from the case on the grounds they were no longer getting paid and were having trouble getting into contact with the company. The judge approved their withdrawal but the company never appointed new lawyers.
https://nypost.com/2025/08/28/us-news/judge-awards-family-nearly-1b-for-botched-delivery-of-baby-at-utah-hospital/
…
RE: Sull
The practical effect is the end of flat fee arrangements, instead the pre-payment has become merely an advance or fee deposit worked off in hourly increments.
The consumer advocates, legal aid, and legal lscholars, opined in the past that a true flat fee benefited the public since the lawyer was taking the risk that the matter would take more time or be more difficult, but also the benefit of being able to get the service completed in less time, resulting in less costs to the client and the security of knowing a fixed amount for said services. Risk – Reward. Under Sull it is now all risk for the lawyer.
Looked at another way, the shoe next to drop is PI contingency fees. A PI attorney will be only able to bill for the documented time put into the case.
Every day, in every way, I am glad to be in the ninth inning of my career.
Whattya gonna do with the Manfred Man in the 10th???
I don’t understand why so many think Sull is the end of flat fees. NSC is simple saying you have to complete the work you agreed to do before you can pay the fee to yourself. That’s not that hard of a concept to understand or implement. If you don’t do the work you agreed to do, whether that is because the client changed their mind or you just fail to do it, why should the attorney keep the fee for work not performed? Accept the flat fee work, but keep the funds in your trust account until you have done the work you agreed to do.
As far as accounting for the work, that doesn’t mean you have to bill hourly. Build in benchmarks in your flat fee agreement, then you can account for your work by providing evidence that you completed the work to get to that benchmark. An affidavit of counsel explaining the work performed can “account” for that work as much as can hourly billing entries.
@10:25
Hey Hooge, glad to see you here.
“why should the attorney keep the fee for work not performed?”
You entirely miss the purpose of flat fees. The attorney quotes a price and is stuck with it. If it takes more time and effort, the attorney sucks it up. If he can get the work done quickly he has produced the requested result.
By anology, a contractor quotes a firm fixed price for a specific task. How is this different?
“An affidavit of counsel explaining the work performed can “account” for that work”
That is naive. In every fee dispute case, malpractice and discipline matter, an hourly time sheet is the only defense.
More info on cyber attack:
https://www.cbsnews.com/news/cyberattack-cripples-nevada-state-systems/
Want to alert my fellow attorneys to an ongoing issue in/with Department 23. I want to lead off with the qualifier that I generally think she does a pretty decent job (unlike her neighbor in 24). However three (3) times in the last six months my office has gotten a minute order to show cause why we have not submitted an Order on a decision that was never served on us. The department issues minute orders that it does not serve. This is becoming an increasing issue with that department. If you have pending motions, check the docket and see if decisions were issued that you never knew were issued.
I haven’t had/seen this issue in Dept. 23 and it is annoying, but I agree that Lilly-Spells is generally an excellent judge.