Monday, July 9, 2018

Monsoon Season

  • Attorneys William Gamage and Amy Gamage face charges as an accessory to murder. [RJ]
  • Stephen Paddock's homes will be sold. [RJ]
  • A 1-year-old goes to court. [Las Vegas Sun]
  • President Trump is expected to announce his nominee for the Supreme Court today. [SCOTUSblog]
  • If you haven't checked out the comments from Friday's post, be sure to get caught up on some of the discussion regarding mandatory professional liability insurance. A proposed Joint Opposition against the Board of Governors' petition to impose mandatory malpractice insurance is being circulated ahead of the the Court's July 11, 2018, 5 p.m. deadline. Anyone interested in joining those opposed to the rule petition should email mo[@] (remove the brackets from the address) ASAP for particulars and to add your name to the opposition.


  1. Can someone explain why the other victims of 1 October will not receive any funds from the probate? I presume there are people that have serious injuries and others who have PTSD and have not received a dime of compensation.

  2. I read that Joint Comment Against Mandatory Professional Liability Insurance. He makes good points:
    1. The proposal lacks independent economic analyses.
    2. There is no assurance the proposal protects the public.
    3. The proposal injects insurance companies into the regulatory framework.
    4. There is no evidence of unsatisfied malpractice claims against lawyers.
    5. The proposal has a disproportionate impact on new lawyers and solo practicing lawyer.
    6. Requiring insurance is beyond what is allowed under JANUS v AFSCME, 585 US ____ (2018).
    7. The proposal infringes on the liberty interest of lawyers.

    All good points. There are several things about the proposal bother me personally:

    1. The supreme court considering this on what looks like and OST and there isn't an emergency. There is no reason why they are doing this on short notice, with a holiday in the middle. I know that the proposal has been kicking around for a while. Still this isn’t a short notice kind of proposal that should be considered on a short calendar.
    2. ALPS and perhaps other insurers are financially interested in pushing the proposal. If an insurer can collect more premium, it can make more money and spread the risk of a severe loss across more lawyers who do not deserve to underwrite a severe loss. Different areas of practice have different risks. The severity of claims against an attorney practicing in securities will be substantially different than the risk of an attorney handling consumer bankruptcy cases. The market recognizes this by allowing a securities attorney to bill $700+ / hour and the consumer bankruptcy attorney to charge a flat fee of $700. Forcing all lawyers under a Bar run program hurts the solo practicing lawyer.
    3. Requiring insurance will interfere with part time and semi-retired practices.
    4. I have never heard of a case where a client legitimately pursued a lawyer for malpractice and was unable to recover. A theft loss by an attorney is NOT a covered claim under a malpractice insurance policy.

    Mandatory insurance isn't necessary for lawyers. I'm in favor of written notification to clients of whether or not a lawyer has insurance. This is a jump on the bandwagon proposal. If it's good enough for Oregon and Idaho, then it's ok for Nevada. Required insurance is not a good idea.

    1. why require it for drivers and doctors, but not lawyers?

    2. because most of the policies do not cover the wrongs that clients of lawyers will complain about--so then you're just forcing attorneys to pay insurance premiums under the guise of protecting the public, while really not giving any clients or lawyers a real benefit.

    3. 12:52: Where are you getting "most of the policies do not cover the wrongs that clients of lawyers will complaint about"? If we're going by anecdotes, then I can say that most clients will complaint about negligent mishandling of cases.

    4. 1:06 here's a list of exclusions from a Friday comment.

      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.

    5. Go read July 6, 2018, 5:21's comment about policy provisions

    6. 1:06 here. I saw that discussion, but that doesn't answer my question. How do these exclusion exclude coverage of the wrongs that clients of lawyers will complain about? For example, how often do clients pursue claims 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"? I've seen a lot of legal malpractice cases where the insurance carrier picked up coverage. So unless someone has stats on any of this, the issue with exclusions is all anecdotal.

    7. What clients will complain about most of all is getting ripped off, i.e., a lawyer stealing from them -- whether it is overcharging, padded billing or worse of all, theft from the client trust account. Theft is part and parcel and heads the list of the following common policy exclusions:
      Fraudulent acts
      Criminal acts
      Malicious acts
      Dishonest acts
      Services rendered to a business enterprise that is owned or controlled by the insured lawyer or law firm
      Services rendered as a fiduciary under the ERISA Act of 1974
      Bodily injury or property damage generated by the lawyer or law firm
      Claims involving one insured against another insured in the same law firm
      Claims arising from legal services rendered by the lawyer or law firm where the firm or lawyer knew of or should have foreseen the claim at the inception of the policy and failed to alert the insurer to the possibility.

      If you carry insurance, read your policy. This isn't "anecdotal." It's factual. It's concrete. It's part of your contract. Your carrier isn't going to cover these acts.
      Consequently, the Bar's misguided nonsensical effort to "to protect the public" by ramming malpractice insurance down our throats ultimately does nothing for victims of the foregoing.

    8. But but but Rob Graham! (no wait....)
      But but but the Gamages! (no wait....)
      But but but Easton Harris! (no wait....)

      Lets be honest-- what the State Bar wants to claim it is doing is making sure that those clients in those cases have a financial resource, except the only way to provide a financial resource for those clients is to ding every active, private practice lawyer $3,000 to make a Client Security Fund that could cover those things. Imagine how that would go over. So we come up with a Band-Aid plan that looks like we are doing something when really State Bar is doing nothing meaningful except buying themselves airline tickets to Chicago and hotel rooms at The Drake.

    9. You hit the nail on the head 5:20!
      But at The Drake, don't forget their enjoyment of a Moscow mule or two followed by a juicy medium rare filet washed down with a bottle of Cask 23 Stag’s Leap Cabernet Sauvignon while discussing new "Band-Aid" predations to unleash.

  3. The State Bar has to be losing credibility in the eyes of the Justices right? Gene Leverty's performance at the random audit hearing was atrocious. While this one has the veneer of good intentions, it isn't well thought out.

  4. I find it appalling that the BOG passed the mandatory malpractice AFTER the "contentious election" but BEFORE the new members are sworn in. It seems this is their last feeble attempt to pass their agenda while knowing that at least a portion of the Bar is opposed to it (based upon the election of the new BOG members).

    1. Good point. I'm not sure it would matter. But, the newly elected should have more than a few days to review and take a position.

  5. On an unrelated topic, I've been noticing lately that there are a series of self-proclaimed activists who are self-appointed crusaders to expose corruption, incompetence and unfairness in Family Court

    Granted that there are some real problems in Family Court that need to be addressed-- areas crying out for substantial improvement. I'm sure certain things can be handled more consistently, more fairly, with more transparency, more accountability etc.

    I'm sure all that is true since that is true of most large agencies and court systems.

    My problem is with the messengers. Apparently, to be one of these advocates attacking the Family Court system, it is not important to understand anything about the system, the controlling laws and procedures, right of notice to all parties, certain constitutional protections, the limitations and constraints on the judiciary, the preclusion of the judges receiving ex parte communications, etc.

    Instead, to be one of these activists, the expected requirements appear merely to be as follows:

    1. You are an active litigant in the system, and don't like how the judge is ruling.

    2. You exhibit deplorable behavior, which largely caused the unfavorable results.

    3. You have no insight to take responsibility for any of this behavior.

    4. So, therefore, you blame it on the judge, the lawyers, the Court Clerk, the Family Court custodian--anyone but yourself.

    Again, intelligent, constructive advocacy for changes in the system should be welcomed, and, candidly, often appears necessary.

    But as long as most these advocates are nothing more than disgruntled litigants with an ax to grind, nothing constructive can be accomplished IMO.

  6. To:1:31. True enough in general. But sometimes change is in fact caused by a number of people, who were screwed(or perceived they were screwed) becoming involved as advocates for change.

    Reason for this is because a lot of people are apathetic unless something affects them directly. People who have never had involvement with a process or system seldom care enough, or know enough, to advocate for changing such system. It simply never occurs to them. But it occurs to some of those who believe they were ground up by such system.

  7. Historically, doesn't most societal change come from common people who have been harmed rather than the educated participants in the system that needs changing?

  8. Hopefully this won't bring out the haters, but a client of mine got royally screwed by Vegas-based IP attorney who has now been disbarred. Is there anyone in town who takes on these types of cases (I don't litigate, my firm wouldn't touch this no matter how grim the facts are)

  9. 1:48 is correct, but that is when the common people who were harmed move beyond obsessing purely on their own matter, and learn the system, how to affect real change that helps others, learn what is practical to pursue, knows what battles to pick, knows how to blend the advocacy with effective diplomacy in order to get legislators and influential people on their side, etc.

    As 1:31 stresses, these common people who were harmed and can affect constructive change, are not the type of people who are currently the self-appointed advocates for change in the Family Court system. They are currently people who can in no sense focus on anything except their own individual nightmare of a case, and have no insight as to their own short comings or bad decisions which helped lead to the rulings. Effective advocates for constructive change are rarely people who lack the maturity to own up to any accountability.

    But that is what we now have as the self-appointed holy crusaders. The narrative is "nothing can ever be my fault, so the judge must be bought off and corrupt because how could anyone not always rule 100% the way I demand?"

  10. All these disgruntled litigants share in common is their belief they got screwed. The are hardly sympathetic figures as they don’t appear to accept an iota of personal responsibiiity.

    This crowd hates their ex more than they love their kids and it obvious. A movement based on hating your ex and being a victim will lead nowhere, as it has.

  11. 1:48 here, 3:13 you are correct (thank you for expanding on my comment), and re: the focus on themselves, as an example, I once had a FL client who, after the Court ruled she got Sole Physical, could only focus on the small issue she lost and claimed "the Judge must have been paid off" - would be difficult for her to be an effective advocate

  12. In Family Court, it is all about rejection. Women get even by withholding the children and men get even by refusing to pay money.

    1. @4:51. Joint custody is the standard in Family Court, so men will see their children. It's far worse for a woman. Women who worked before, during, or after their marriages see a 20 percent decline in income when their marriages end, according to Stephen Jenkins, a professor at the London School of Economics. His research found that men, meanwhile, tend to see their incomes rise more than 30 percent post-divorce.