Friday, July 6, 2018

Mandatory Professional Liability Insurance


  • As you saw in the email from the State Bar yesterday, ADKT 0534 proposing amendments to SCR 79 requiring mandatory professional liability insurance is going before the Supreme Court. You can view the petition here (which includes hundreds of your survey responses about the idea). Per an Order, a hearing will be held Wednesday, July 18, 2018, at 3:00 p.m. in the Supreme Court Courtroom in Carson City and videoconferenced to Nevada Supreme Court in Las Vegas. Comments may be submitted electronically or in hard-copy format due to Clerk by 5 p.m. on July 11, 2018. Persons interested in participating must notify the Clerk no later than July 11, 2018. Here is your chance to make your voice heard again. 
  • Todd Bice got a $3.5 million win for his artist client whose Las Vegas Statue of Liberty was used on a USPS stamp without permission. [CNN]
  • Naqvi Injury Law pledges multi-year support of Cure 4 the Kids Foundation. [Nevada Business]
  • A chaotic scramble to reunite migrant families by deadline. [Las Vegas Sun]

58 comments:

  1. Cure 4 the Kids is a great charity. Kudos to Farhan and Elle Naqvi. I don't know them well. But, I have a ton of respect and admiration for them. They do great work for clients. They are deeply invested and committed to our community. They set the bar very high and the rest of the PI Community need to take the jump.

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    1. It's nice to see the blog focus on something positive for once.

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    2. I have also been following Bernstein's support of the immigration clinic at UNLV and that would be another great thing to highlight.

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    3. With great success comes great responsibility. Farhan and Ed understand. As a profession, most of us are successful. As a profession, we should do more to accept responsibility. We need to collectively and visibly do more for our communities. Pro Bono is great too. But, money that organizations can use to help people should be front and center for the profession.

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    4. This is why I volunteer outside the profession. Time away from my family is equally as important as someone giving money. I bill out at $300 an hour. When I spend 4 hours at ask a lawyer that is $1200 an afternoon. I have volunteered for over 10 years...no recognition by my profession.

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    5. How come 8:40 didn't sign the post Farhan and Elle.

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    6. In all seriousness is it real charity if you do it for publicity? I know a law firm in town that donates 100k a year to charities and doesn't say a word and they are an advertising firm.

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    7. If you want to increase the amount of pro bono work done, let me deduct at least a customary value of my time, as published in an IRS schedule, and watch the charity flow.

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  2. The new President of the BOG wrote in the July Nevada Lawyer, "We have just completed an especially contentious election process for positions on the Board of Governors. A range of regulatory issues and outside challenges to the profession energized and bedeviled the campaigns of the candidates, and as in the nation on a broader scale, incumbency was no guarantee of freedom from scrutiny and accountability." At least one BOG is aware of the discontent. Hopefully more become so and give up some their ridiculous agenda.

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    1. I enjoyed the article in which the Code of Ur-Nammu was described. I wonder if the Code of Ur-Nammu included bargains, i.e. time-honored contracts. It would be strange, but definitely something at which I would marvel.

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    2. Rick Pocker being more in touch than Gene Leverty? That is not a surprise in the slightest. However Rick is also chairing the BoG when mandatory malp. insurance is on the docket.

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    3. To: 9:02:But did any of these incumbents actually lose their re-election bid?

      If not, then despite p.r. statements to the effect "we hear you, and we care", nothing will change.

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    4. 11:03 a.m. of the 4 incumbents running, only 1 (Paola Armeni) was reelected. It sent a pretty strong message to the board. Whether they will listen is the question--seems like Pocker is at least acknowledging the situation.

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    5. I thought the theory was people voted in alphabetical order and that's why so many later in the alphabet were out?

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  3. Holy Hell: https://www.reviewjournal.com/crime/las-vegas-lawyer-faces-charge-tied-to-murder-case/

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    1. WTF??? This is why I keep my expenses low as a solo, and laugh when law firms act like they have more money then they do.

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    2. What happened to the Gamages? It has to be more than money. I feel sorry for their kids.

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    3. I have known Bill Gamage since college, about 28 years. He was a super stand up guy, former Army reserve and former state peace officer. Came from a great family. I personally think he got sucked into someone's else's drama and made some very, very bad choices. I feel for his kids. I can't imagine not being able to support my children let alone not being able to be present for them.

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  4. a small part of everyone thinks that when opposing counsel pulls up to court or to a depo in a Kia Rio that you know you will kick their ass because you drive a Bentley.

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    1. Or driving a Maserati or wearing daily Loubs dragging your fugly designer bag or wearing your Colonel Sanders pin-stripped electric purple zoot suit.

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    2. The most aggravating part of my day is that the opposing counsels I work with aren't sophisticated enough to recognize my 60K Jaeger LeCoultre Master Tourbillon watch, I secretly look at their watches during depos and know that I am a better lawyer

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    3. False. Have you seen the car Bill Terry drives?

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    4. I drive a piece of shit, in part, to be underestimated.

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    5. Subaru lawyer over here. I convey sensibility and high mileage.

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    6. I drive a pos, so I can retire in my 40s and pay my bills. I could give two fucks what opposing counsel thinks.

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    7. 11:17, that sounds so aggravating. How do you make it through the day?

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    8. I seem to remember stories of Polsenberg driving an old Honda for years. I might be mistaken on exactly who it was, but I've heard enough stories like that to not be fooled by a car/watch/suit. To me it screams decent enough lawyer to make a living but too insecure to let their work product/personality/worth as a human being do the talking.

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    9. Polsenberg drove a beat up Acura with "Pols" on the plates for years. Might still have the plates but that Acura would qualify for classic car status by now.

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  5. Here we go again with the BOG trying to do "something." Mandatory insurance idea smells. Is ALPS, the insurer endorsed by the State Bar, pushing this plan? Does anyone know the terms and conditions of the ALPS endorsement?

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    1. Does anyone know the terms Kim Farmer's contract? Will she be able to transition over to ALPS if she leaves SBN?

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    2. Not necessary. She is so overpaid that she could retire today with all of your money.

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    3. 12:44 how do you know? have you seen the contract? care to share?

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    4. Conflict much?

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    5. 12:57-- I have a connection who USED to be on the BoG (and is no longer as of 2 or 3 terms ago). Kim's contract is lucrative for a well-oiled machine. It is obscene for the shitshow which we are running at SBN.

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  6. The Mandatory Malpractice insurance petition is a travesty. Just terrible. The Court wants comments next week July 11 and then they set a hearing on July 18th in Carson City. This sounds like the Court erroneously believes there is no opposition and that this will be easily approved as a routine ADKT. There is nothing routine about it. I hope they will allow more time. I hope that our newly elected board members will ask for more time and at least one of them attend the hearing and voice members concerns. The majority of lawyers DO NOT have malpractice insurance. Just think about it. Government lawyers don't have it. Judges don't have it. Public lawyers don't have it. ALJs don't have it. Corporate counsels don't have it. Attorneys who are insurance company staff counsel don't have it. Legal services don't have it. The primary ones who have it are large law firms and medium law size firms. Attorneys who are at risk in commercial matters like contracts, real estate, and litigation carry it. A lot of personal injury attorneys have it because it is high risk. Some criminal defense attorneys have it. Many solo attorneys do not have it. The cost of overhead is eating everyone alive. The cost of insurance has gone up. If it becomes mandatory, I have no doubt that premiums will rise. How many carriers are there writing policies in Nevada? If one of them drops out, then the costs will grow which is what happened with medical malpractice insurance. A better proposal would be for disclosure on whether you have malpractice insurance. Malpractice insurance will do nothing for the victims of Rob Graham because Rob Graham stole. Thank you blog.

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    1. Having malpractice insurance is one thing. It is a decision each practitioner in private practice has to make. But mandating it for every lawyer who is active and represents clients is another. I looked at ADKT 534 the Supreme Court's Order. If adopted the ADKT will amend Rule 79. This amendment reminds me of the Random Trust Audits fiasco. The State Bar is authorized to audit. The State Bar is authorized to suspend and assess a penalty. What if the policy lapses and is inadvertently not renewed? What if malpractice insurance is so expensive that you can't get it? What if no insurer will write a policy because of prior claims, disability and history of discipline? Too many unanswered questions. I vote no. If you rub shoulders with lawyers who have it, you think everyone does. If your colleagues don't have it, you think many don't have insurance. This proposal will clobber new lawyers starting out by making private practice so expensive.

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  7. We should try and court call in.

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  8. I wholeheartedly disagree with the premise that "the majority of lawyer DO NOT have malpractice insurance" I have been practicing 26 years and have never been without insurance and I can think of only a handfull of attorneys that go bare. The costs are actually nominal in the scheme of things. Your examples of Government, Judges or Public attorneys is simply wrong. These attorneys enjoy a level of immunity that obviates the need for insurance. By the same token, Corporate counsel and captive insurance defense attorneys dont need insurance b/c they are employees of the company. I appreciate the opinions of those who disagree, but we should base our opinions on facts and not the rant of a very vocal minority group.

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    1. This! It seems like there are 10 people on this blog who are appalled at the idea of malpractice insurance. All of the other lawyers I regularly speak to and lunch with think its a smart idea. And, I'm not at some big firm.

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  9. To:3:01. Although I agree that the BOG, State Bar Discipline, and issues and changes promoted by the NSC, can certainly be heavy-handed and even wrong-headed and clearly unfair(e.g. random audits, etc.), I view malpractice insurance quite differently. I have always maintained such insurance, including during some pretty lean years as a private practitioner.

    Granted, I mainly maintained it as professional self-protection, but, although is sounds like corny self-posturing, I believe we have a duty to carry it in order to protect the public.

    The stakes are way too high in both the medical field and the legal field as well. Negligent acts by a physician or lawyer generally can have far more profound impacts than negligence in most other professions.

    But just from a purely self-serving and selfish perspective, a practitioner should simply ask himself/herself whether they would sleep better at night, and generally be less agitated and plagued by worry, if they had such insurance.

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    1. The "protecting the public" issue is kind of complex and can also be a red herring in many cases.

      But most of the really outrageous victimization of clients is not caused by negligence(which is covered by the malpractice policy), but is caused by flagrant,intentional criminal acts of mass thievery by the attorney.

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    2. 3:40 PM I commend your honesty. Despite the self serving posturing by the BOG about public protection, malpractice insurance is really "professional self-protection." Mandatory insurance does not protect the public. It protects the lawyer. Malpractice insurance is not created nor designed to protect the public. An insurance company’s interest is diametrically opposed to a claimant’s. Let's be real. Malpractice insurance is not intended to pay a claimant, but to defend and protect the lawyer. And as 3:45 PM correctly points out, intentional acts or omissions along with criminal or fraudulent conduct are common policy exclusions. Indeed, most policies have as many as 6 or 7 additional exclusions including, for instance, wrongful termination claims, employment discrimination and providing services as a business or investment advisor. This bullshit rule petition is just more empty-headed albeit expensive 'feel-good' rule-making by the self-righteous meddlers on the BOG.

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    3. Can you expand on the exclusions? I am an L&E associate at a large firm, so I never deal with malpractice insurance. I am curious why those claims are common exclusions.

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    4. 3:58 PM here and sure I can expand by merely looking at the numerous exclusions in my own malpractice policy, including the following. (I will not list them all). But these are common:
      ~ Any CLAIM arising from bodily injury to, or sickness, disease, or death of any person.
      ~ Any CLAIM for loss of, injury to, or destruction of tangible property or for loss of use thereof.
      ~ Any CLAIM arising out of any INSURED'S activities as an officer, director,
      partner, manager or employee of any company, corporation, operation, organization or association other than the NAMED INSURED or PRIOR LAW FIRM except as a member, director or officer of any Bar Association, its governing board or any of its committees.
      ~ Any CLAIM arising out of any INSURED'S capacity as a public official or any employee of a governmental body, subdivision or agency unless any INSURED is deemed to be such solely because any INSURED has rendered PROFESSIONAL SERVICES to such governmental body and the remuneration for such legal services inures to the benefit of the NAMED INSURED.
      ~ Any CLAIM arising out of the alleged certification or acknowledgement by any INSURED, in his or her capacity as a notary public, of a signature on a document which the INSURED did not witness being placed on the document.
      ~ Any CLAIM arising out of, relating to or involving improper commingling of client funds, conversion of anyone’s funds, theft of anyone’s funds, the wire transfer of anyone’s funds, a bounced check, a check lacking sufficient funds, a counterfeit check or a check bearing anyone’s forged or bogus signature.
      ~ Any CLAIM based upon or arising out of any intentional breach of underwriting authority by any INSURED in the INSURED’s capacity as a title insurance agent.
      ~ Any CLAIM arising out of the actual or threatened abuse or molestation of a person by any INSURED in connection with any PROFESSIONAL SERVICES rendered.
      ~ Any CLAIM arising out of the INSURED'S activities or capacity as a fiduciary under the Employee Retirement Income Security Act (ERISA) of 1974 and any amendments, regulations or orders issued pursuant thereto.
      ~ Any CLAIM arising out of liability assumed by an INSURED under any contract or agreement, whether oral or written, except to the extent that the INSURED would have been liable in the absence of such contract or agreement.





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    5. In other words they exclude stealing and molesting.

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  10. I love when the BOG does something and then the anonymous bloggers come out and bash it or defend it. You never know who is taking what position and who is furthering their own agendas.

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  11. 3:37 PM-Implies that most lawyers have malpractice insurance because he or she has it. Yes, many lawyers in private practice carry malpractice insurance. No dispute there. But a lot of private practice and solo practitioners don't have it. Conducted my own unscientific survey and found that many many small firm and solos don't have it. Rationale-If you are doing your job you don't need it. The State Bar's survey was also unscientific. The Court's Order provides for audits, for certification that you have it, and penalties and DISCIPLINE if you don't have it. The State Bar will be auditing. Sounds familiar as in random trust audits. Keep that in mind. This is only the first step.

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  12. Only Oregon requires lawyers to carry malpractice and now maybe Idaho. The ALPS numbers are concerning. I think the real cost is higher than the projected cost. The figures are for someone just starting out with no track record. What are the figures for someone insuring for the first time after practicing without.

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    1. 7:12 when you do your renewal paperwork for the state bar you have to supply your malpractice info, so if people actually complete their renewal properly, then the state bar would have the info.

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    2. It just got a lot more expensive to practice in Idaho. Starting Jan. 1, 2018, it's a precondition of licensure if you represent private clients that you carry malpractice insurance. This also means the Idaho Bar and the state supreme court have effectively empowered insurers with the right to stop an Idaho lawyer from practicing law if her carrier terminates her policy "for any reason" and she is unable to find a new carrier in 30 days.

      The SBN rule petition is modeled on Idaho and will similarly equip insurance companies with the same 'disbarment' power.

      "Idaho Bar Commission Rule 302(a)(5):

      "Rule 302. Licensing Requirements. Following admission as a member of the Bar, an attorney may maintain membership as follows:(a) Active or House Counsel Member. An Active or House Counsel Member shall:***(5) Certify to the Bar (A) whether the attorney represents private clients; and (B) if the attorney represents private clients, submit proof of current professional liability insurance coverage at the minimum limit of $100,000 per occurrence/$300,000 annual aggregate. Each attorney admitted to the active practice of law in this jurisdiction who is required to have professional liability insurance shall identify the primary carrier and shall notify the Bar in writing within thirty (30) days if the professional liability insurance policy providing coverage lapses, is no longer in effect, or terminates for any reason, unless the policy is renewed or replaced without substantial interruption."

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  13. I pay $450 for annual dues + $35 for a section membership. I pay about $500 for the annual section CLE (Family Law, held in Bishop CA - I am not including my deluxe accommodation fees and hours of transportation time to the conference). This is $985 just to keep my license. On top of these expenses, I am required to provide 40 hours of pro bono help every year (yes, I resent the requirement; I help those underserved, but resent the requirement to do so). My billable rate is $400/hour. I am forced to donate $16,000 of my time. Now add mandatory insurance. I cannot earn money as fast as the bar wants to pick my pocket.

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    1. You forgot the $40 annual fee paid to the Nevada CLE Board and the new 13th annual hour of mandatory CLE in substance abuse/mental health education.

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    2. Anyone notice the scarcity of cles? Wtf

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    3. @10:11 Surprise! It's due to the bar's new pricing scheme.

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    4. Yep. You really have 4 choices now: overpriced, Non-Nevada-specific CLE from a national provider, overpriced Nevada-specific CLE from the State Bar, the rare CLE provided by a Bar Section, or getting "free" CLE from LACSN after taking yet another pro bono case.

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    5. May I kindly offer you can overfill your CLE coffer, for free and around your own schedule, by: being a mentor to new attorneys.

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    6. Just a clarification. CLE is not caused by the State Bar's pricing scheme. It is the disaster that the Nevada CLE Board has created. Many national CLE providers are simply not offering Nevada courses any longer. I belong to a national CLE Provider on an "All You Can Eat Plan". This provider provides 1400 courses for California, 1250 courses for Arizona and 350 courses for Nevada. The provider has added 10 courses since December 31st because it is no longer cost-effective to offer broad programming in Nevada.

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  14. The State Bar's data shows that about half of active attorneys have malpractice insurance. What if your insurance lapses or what if you get canceled or dropped? What if you or someone at the firm neglects to renew the policy. According to the proposed order, you have to pay a fee, submit proof of insurance and you are subject to discipline. It is another requirement worse than CLE.

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