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Posts Tagged ‘Nevada State Bar’

Last week Nevada’s Supreme Court spared the state’s private practice lawyers from being forced to pay thousands of dollars in annual costs. The court unanimously denied an ill-considered state bar-sponsored rule petition to impose as a condition of licensure a requirement that all lawyers engaged in private practice buy professional liability insurance. The court ruled, “Having considered the petition and the comments from the State Bar and the public, we conclude that the Board of Governors has provided inadequate detail and support demonstrating that the proposed amendment to SCR 79 is appropriate.”

The Court also took particular note of its existing rule that already provides for public disclosure of whether an attorney maintains professional liability insurance.

Interestingly, in preparing its misguided rule change petition Nevada’s Board of Governors relied on data and input provided by an interested stakeholder and current market participant,“its endorsed lawyers’ malpractice insurance company and “the nation’s largest direct writer of lawyers” malpractice insurance.”

The high cost to practice.

As it is, most lawyers voluntarily carry legal malpractice insurance. But it’s one thing to do so by choice and quite another to do so by coercion. Nevada’s high court is to be saluted for its prudence in rejecting the Bar’s proposal, which would have catapulted Nevada into the uppermost ranks of the highest cost to practice jurisdictions in the U.S.

At least, for now, Oregon has the dubious distinction of remaining king of the high cost mountain.

But high cost contenders remain. Mandatory bar association leaders apparently love nothing more than finding new ways to scorch their members with new practice pains and greater financial burdens, especially for those in private practice. Indeed, as of the first of the this year, to keep their tickets to practice Idaho private practice lawyers are now required to submit “proof of current professional liability insurance coverage at the minimum limit of $100,000 per occurrence/$300,000 annual aggregate.”

That resolution passed in Idaho by a scant 51% to 49% vote of bar members. It’s unclear how many Idaho private practice lawyers voted or were even aware of the proposal. I suspect not many. Moreover, had the word gotten out in time as it barely did in Nevada, the outcome might have been much different.

Anecdotally, for example, in July I exchanged emails with a Nevada lawyer also licensed in Idaho. While objecting to the proposed Nevada insurance mandate, he expressed concern should Idaho follow with a similar requirement. He was floored to learn that not only had it already been considered in Idaho — but that even now he was subject to the new rule as of January 1, 2018!

No remedy.

Besides significantly increasing the cost to practice, mandatory professional liability insurance is no remedy for the victims of a lawyer’s intentional acts or omissions and criminal or fraudulent conduct. Why? Because these acts along with numerous others fall under common policy exclusions that too often foreclose relief to claimants. Insurers don’t cover intentional, criminal or fraudulent acts. In addition, mandatory insurance is not designed to protect the public — but to protect the insured. I discussed some of this in my “No lawyer love in Nevada” July blog post.

Finally, Washington lawyers in private practice should remain vigilant lest they be caught unaware like their next door neighbors. Mandatory bars are notorious copy cats. And the folks running the Washington Bar are particularly adept at giving it to their members.

File:Aprilmaze.jpg

For sometime now and as reported here, the Washington Bar has been considering its own legal malpractice insurance mandate. In July, the Association’s Mandatory Malpractice Insurance Task Force issued its interim report.

I doubt Nevada’s failure to afflict its lawyers with compulsory insurance will do much to dissuade the Washington Bar from its hard-nosed agenda.

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Credits: Aprilmaze.jpg, at Wikimedia Commons, public domain.

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The Eastern Seaboard may still be buried in ice and snow. But Spring beckons all the same. And come March — like swallows that supposedly always return to Mission San Juan Capistrano, U.S. lawyers receive their yearly state bar propaganda promoting that vestigial anachronism known as the annual state bar convention.

2015 Patrons ProgramLast month I received the Arizona Bar’s annual sponsorship solicitation letter ‘inviting’ members to underwrite the convention as “Convention Patrons.” Suggested donations range from $200 plus to $4000 plus. The Nevada Bar, where I also belong, likewise looks for convention sponsors. But not nearly as enthusiastically as Arizona’s Bar, which spends thousands of dollars in member dues to solicit each member by direct mail.

To pry open lawyer billfolds, the cover letter from Arizona Bar leadership that accompanies the patron contribution form extols (without corroboration) the convention as “consistently recognized as one of the finest in the nation” and asks members’ “help to maintain this position of prominence by returning the attached sheet with your contribution.”

Given such tireless entreaties, mandatory state bars never ever leave a lawyer’s consciousness. So notwithstanding that creaky old song about swallows coming back to Capistrano — likewise the truth is that swallows never ever leave Capistrano. They’re always around.

In the good ole’ summertime.

State bar conferences are usually held in summer preferably at climatically pleasant locales like, for instance, Seattle, Washington where the State Bar of Nevada’s Annual Meeting is set for July 9-11, 2015. Or lovely Sun Valley, Idaho on July 29th when the Utah State Bar’s Summer Convention features keynote speaker Citizens United author U.S. Supreme Court Justice Anthony Kennedy.

All well and good — except locally. The Arizona State Bar holds its annual meetings in June and in Arizona — hardly a climatically pleasant locale that time of year. Summer around here means hot enough to fry an egg on the sidewalk.

And alternating the venues between Phoenix and Tucson is of little use. The average June temperatures in each city easily surpasses 100 degrees°F. And in Phoenix, site of this year’s Butt-Numb-A-Thon, the June thermometer averages 104 degrees°F. The good news for the Bar is that by keeping the air conditioning cranked up, bored conferees don’t wander far from the all-you-can-eat CLE buffet or from the shameless self-congratulation ceremonies.

Getting cheeky.

Another way to keep ‘cheeks in seats’ — at least per the State Bar of Wisconsin, is to headline the event with the likes of humorist, actor, and author Mo Rocca. Wisconsin holds its 2015 Annual Meeting in June at Lake Geneva, Wisconsin and a Kenosha lawyer apprised me about this year’s speaker.

https://upload.wikimedia.org/wikipedia/commons/thumb/6/6c/WaitOctaviaMoR2.JPG/360px-WaitOctaviaMoR2.JPG

But Mo Rocca? In 2010, the Wisconsin Bar featured retired U.S. Supreme Court Justice Sandra Day O’Connor delivering the keynote address. But in 2015, it’s the sobriquet sharing “Mo” whose fame comes via CBS Sunday Morning and frequent stinting as a panelist on NPR’s weekly quiz show, “Wait, Wait . . . Don’t Tell Me.”

The other NPR quiz show panelists Tom Bodett and Paula Poundstone were probably busy. At any rate, they didn’t invite Dick Cheney who stirred up Wyoming lawyers when he was keynote speaker at last year’s Wyoming State Bar Convention.

So no matter years of lackluster attendance and past pronouncements about the demise of the annual cheesehead lawyer convention, it appears its death was “greatly exaggerated.” Instead, the Wisconsin Bar has come roaring back — with Mo Rocca.

Ready. Fire. Aim.

But in Arizona, no worries. Keynote speaker? Who knows? Last year, according to the bar’s website, the principal address was also by a humorist but leastways, that fellow was also a lawyer even though nobody I know had ever heard of him. Of course, the same may later be said of Mo Rocca.

If the Arizona Bar hasn’t thought of it, NBC News Anchor Brian Williams is probably available now that he has six months of extra time on his hands. Or maybe that’s not such a good idea since his honorarium would most likely top Mo Rocca’s.

But for now, those waiting with ‘bated breath and whispering humbleness‘ will simply have to wait longer for the identity of the keynote speaker. The schedule hasn’t been fully announced for Arizona’s 2015 feast of self-congratulation, even though there’s a theme. Reminiscent of “Ready, Fire, Aim” — it’s “Ready, Set, Practice.”

In the end, however, it makes scant difference. Like some 90 percent of my colleagues, I won’t be showing face at the convention — so all those marketing appeals will go for naught.

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Photo Credits: 010 022.jpg by butkovicdub at Morguefile; IMG_4895copy.jpg By carmemlucia at Morguefile; Mo Rocca by Infrogmation (talk) at Wikimedia Commons via Creative Commons Attribution 3.0 Unported license; Dick Cheney by DonkeyHotey at Flickr Creative Commons Attribution; Brian Williams by DonkeyHotey at Flickr Creative Commons Attribution.

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Talk about timing. No sooner did I say something nice about a state bar president when the following month he’s in hot water. Call it the burden of irreverence. I’m referring to Nevada State Bar President Alan J. Lefebvre. He’d been on a tear of late in the Nevada Bar’s normally boring monthly lawyer magazine.

As bar president, Lefebvre gets his own column, the “President’s Message.” And I’d given him an atta-boy for his unprecedented criticisms of the state of legal education and especially, for his remarks about the unauthorized practice of law. More recently, he’d decried the state’s medical marijuana law calling it reefer madness.

Catherine Cortez Masto.jpg

Nevada Attorney General Catherine Cortez Masto

But what was he thinking when he decided to go editorially commando with his latest President’s Message: Dereliction of Duty … Or is it Rule by the Guardians?”

Unhappy with Nevada Attorney General Catherine Cortez Masto’s decision not to defend Article 1 Section 21 of the Nevada Constitution, Lefebvre offered up his ten cents’ worth of opinion and earned himself back $100 dollars worth of grief. Section 21 is known as the “Limitation on recognition of marriage.” It was passed 14 years ago and states, “Only a marriage between a male and female person shall be recognized and given effect in this state.”

Lefebvre’s arguments, however, were mostly legalistic and reminiscent of the 2011 brouhaha when King and Spaulding backed out of defending the federal Defense of Marriage Act.

For the record, I disagree with him on the merits. And until the US Supreme Court steps in, so do the courts. As of last week, with state officials in Oregon and Pennsylvania opting like Cortez Masto not to challenge court decisions overturning bans on gay marriage, there are now 19 states where same-sex couples can be granted legal recognition. See “SameSex Marriage Supporters Keep Up Their Winning Streak.”

Angry businessman yelling into bullhorn 1Speaking his mind.

But no matter the substance — damn him for his “tone” or so we’re supposed to believe from those “powerful, vengeful people among the elite” Lefebvre ‘disrespectfully’ opined about. So much for candor, for speaking your mind — and for hanging yourself with the PC police.

At least Nevada’s soon-to-be-gone bar el presidente belatedly learned albeit at the end of his term why state bar presidents confine their bar magazine epistles to insipid interjections, inoffensive insights and doggerel defenses of the self-satisfied status quo.

Coincidentally, about the same time Lefebvre was stepping on himself in Nevada, his counterpart in Arizona was innocuously blathering about diversity in his own presidential column. Doubtless he was prompted by the loony Arizona Legislature’s attempted passage of SB 1062, a bill that allowed businesses to assert their religious beliefs to deny service to gay and lesbian customers.

But unlike the non-wishy-washy Lefebvre, the Arizona honcho didn’t say anything about the legislation let alone anything overtly or substantively controversial. Instead it was the standard mealy-mouthed bar presidential schtick — the usual cheerleading self-congratulation about how great the state bar is in Arizona.

Boy with his hands on his face uidLeastwise the sycophantically impressed Arizona bar magazine editor gushed and saluted his president for not writing about a controversial topic in a member magazine. Like playing it safe takes courage.

Perhaps the bar prez was mindful of running afoul of Keller v State Bar of California, which is ‘supposed’ to keep mandatory bars from engaging in ideological political activities with member’s compulsory dues.

Objecting over style but really mad about substance.

So back in Nevada, faculty and staff members at Nevada’s Boyd School of Law were via open letter galvanizing against“the tone” of Lefebvre’s commentary. And with their own immoderation, criticized him for his purported ‘incivility’ over Cortez Masto’s unwillingness to defend the state constitution. Imagine that,

https://i2.wp.com/upload.wikimedia.org/wikipedia/commons/0/03/Book_of_Snobs_XVIII-page_69.jpgBut I don’t for a second believe their objections were merely about style or lapsed social graces. No — bar presidents aren’t supposed to weigh in on controversial topics — at least not those the legal establishment disagrees with. Moreover, methinks some faculty members were already miffed at Lefebvre for his prior Op-ed criticisms of law schools generally and of “the law student debt scandal.”

And not like he’d singled out Boyd for any opprobrium. Indeed, as I recall, he rolled over and offered not a smidgen’s worth of reproach of the Silver State’s only law school. In fact, he contorted backwards and complimented the law school dean. File this under “no good deed goes unpunished.”

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https://i2.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/c/c0/Gerard_ter_Borch_%28II%29_-_Officer_Writing_a_Letter_-_WGA22151.jpg/448px-Gerard_ter_Borch_%28II%29_-_Officer_Writing_a_Letter_-_WGA22151.jpg“RESPONSE BY MEMBERS OF THE BOYD SCHOOL OF LAW FACULTY AND
STAFF TO ALAN LEFEBVRE’S “MESSAGE FROM THE PRESIDENT”

“As members of the faculty and staff of UNLV’s William S. Boyd School of Law, we were dismayed to read the May 2014 Nevada Lawyer column by Alan J. Lefebvre, written in his capacity as President of the State Bar of Nevada. We fear that the tone of Mr. Lefebvre’s undignified column brings disrespect on the Bar and undermines principles of professionalism that we endeavor to instill in our students.

“Mr. Lefebvre’s ostensible subject was Nevada’s prohibition on same-sex marriage. He disparaged the conclusion by Attorney General Catherine Cortez Masto and endorsed by Governor Brian Sandoval that the ban cannot be defended in federal court. There are reasonable debates to be had about how our state’s officials should respond to a rapidly shifting legal landscape. But such debates require a climate of mutual respect. The mission of the State Bar of Nevada is, in part, to “elevate the standard of honor, integrity, and courtesy in the legal profession” and “to promote a spirit of cordiality” among lawyers. In our roles as faculty and staff at Nevada’s only law school, we want to pass these values on to our graduates. It is thus regrettable that Mr. Lefebvre’s essay consists largely of insults, ad hominem attacks, sarcasm, and sectarian references that are simply inappropriate for the leader of an important institution in a vibrant and diverse state.

“We recognize that issues like marriage equality naturally inspire passionate responses. But in the legal profession passion must be expressed with dignity and thoughtful analysis. Mr. Lefebvre’s column was lacking in the civility that should guide the behavior of every Nevada attorney. It is a serious disappointment for such indignity to emanate from the leader of the state bar.”

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Poster2Blogger, Boyd faculty member and letter signatory Professor Nancy Rapoport also posted exceptions to the strident solitary defense Lefebvre garnered from Ed Whelan at National Review Online entitled “Nevada Law Profs (and Others) vs. Rule of Law—Part 1 ….

Besides objecting to Lefebvre’s “tone,” Professor Rapoport also called Whalen out on his ‘disrespect.’ Oxymoronically, she advocated passionate politeness or was it polite passion? The professor even offered to debate Whalen — privately or publicly.

Piling on.

Air Bourne.gifRather incongruously, the Nevada Bar’s Board of Governors was compelled to pile on notwithstanding there already exist boilerplate disclaimers in the magazine that “Appearance of an article, editorial, feature, column, advertisement or photograph in Nevada Lawyer does not constitute an endorsement by Nevada Lawyer or the State Bar of Nevada unless specifically identified as the policy of the State Bar” and that “the views expressed are those of the authors.”

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/5/5a/Bus_Rear_Wheel_-_Kolkata_2006-03-22_04013.JPG/320px-Bus_Rear_Wheel_-_Kolkata_2006-03-22_04013.JPGI guess Keller, the faculty letter, and complaints from interest groups forced the Board to back the PC bus tire over their president. Thursday afternoon, they sent the following blast email to their members.

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“State Bar of Nevada
Statement from the Board of Governors

“To all members of the State Bar of Nevada:

 “The views expressed in the President’s Column in the May 2014 issue of the Nevada Lawyer do not represent those of the Board of Governors, its individual members, or the State Bar of Nevada as a whole.

“The State Bar of Nevada and the Board of Governors embrace and welcome viewpoints of every kind and the Board assures all of our members that diversity and tolerance are valued and respected by the State Bar.

“The Board of Governors assures all members of the Bar and the public that the State Bar of Nevada does not support any use of the President’s Column for political statements. The Board has a policy that requires the State Bar President to refrain from using the Nevada Lawyer to advance personal political viewpoints.

“The Board of Governors assures all members that we will be diligent in representing you in an unbiased manner.”

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Oh the ironies.

Most lawyers I know don’t bother reading the presidential pabulum published in bar magazines. So ironically, but for the outsized attention generated by law school faculty and staff, very few would’ve noticed Lefebvre’s commentary.

photoThe even greater irony, however, is that as it is, lawyers don’t have the Free Speech rights everybody else has. Lawyer free speech is limited by ethical rule —  a topic I’ve often posted on, e.g., here and here and here. So it’s sad that when lawyers dare to state their opinions in such public ways, they need to also remember to duck before the first shoe gets thrown.

And finally, these days the term civility gets bandied about a lot. And yet civility is no longer an abstract principle but has come to mean what’s subjectively polite in the eye of the beholder. But unfortunately, the extension of aspirational courtesies and respectful considerations has become increasingly dependent upon who’s the one being gored.

http://www.lamed.blogspot.com/2006_01_01_archive.html

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Photo Credits: “Danger: Hot Water Will Scald!” by Wesley Fryer at Flickr via Creative Commons license requiring attribution; Catherine Cortez Masto, State Attorney General of Nevada, at Wikipedia Commons, public domain; “wise monkeys,” by Thunderchild7 at Flickr via Creative Commons license requiring attribution;Engraving on wood by W. M. Thackeray himself, for the first edition of The Book of Snobs. Chapter XVIII, “Party-giving snobs” Mr Snob and Miss Smith, at Wikimedia Commons, public domain;”Officer writing a letter,” attributed to Gerard ter Borch at Wikimedia Commons, public domain; Air Bourne.gif by Matthew Korklan at Wikimedia Commons, public domain; “tata mini bus rear wheel” by Biswarup Ganguly at Wikimedia Commons via Creative Commons Attribution 3.0 Unported license;”Speak No Evil,” by Theron LaBounty, notanyron, via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr; “this cow has an itch,” by Brent Moore at Flickr via Creative Commons license requiring attribution; bull goring at www.lamed.blogspot.com

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Even in Maricopa County, Arizona where most everyone has transplanted from someplace else, no one likes hearing about how things were done elsewhere. It’s as welcome as grey-whiskered prattle about “how things were when I was a kid.” Put a sock in it.

All the same, ignore the sock hanging out my mouth while I favorably compare what my former home state of Nevada just did concerning the unauthorized practice of law (UPL).

UPL as most of you know is a tiresome pet peeve of mine. But for all my frustration, as far as Arizona’s concerned when it comes to dealing seriously with UPL, it’s rubbing fingers and playing the world’s tiniest violin.

But back in the Silver State there’s AB74, a new Nevada law effective March 1, 2014 that imposes new controls on legal document preparation services — or what lawyers think of as the unauthorized practice of law. Fortunately, instead of creating another self-perpetuating legal establishment bureaucracy like in Arizona, AB74 requires document preparation services to register with the Secretary of State; establishes qualifications for registration; requires the filing of a bond; regulates the business practices of document preparation services; authorizes disciplinary action and other remedies in specified circumstances; and provides civil and (unlike Arizona) criminal penalties.

File:Otis fence.jpgNevada’s approach is admirably distinguishable from what the ‘self-enlightened’ legal elites did in Arizona. Here the legal eagles didn’t soar to curtail the unauthorized practice of law. Instead the privileged classes ‘fixed’ it by saying it wasn’t UPL. Arizona exempted out a slew of non-lawyers from UPL by judicial fiat.

As a consequence, Also see “Immcrimination: Document preparation in Arizona in the wake of USA v. Arizona.”

No “conscious uncoupling” from the mandatory bar.

Which gets me to say something nice for a change about a state bar president, Nevada’s Alan J. Lefebvre. He’s finishing out his term and in his last several presidential epistles in the bar’s mouthpiece magazine, Nevada Lawyer, Lefebvre’s demonstrated refreshing candor — at least by complaisant state bar standards. He’s decried the current state of the legal profession, which has “done nothing to protect and rescue” newly graduated debt-indentured lawyer graduates. See “President’s Message: “Maybe Reparations are Owed?”

photoAnd unlike the self-congratulatory B.S. typically spewed by bar management milquetoast sock puppets, Lefebvre has also inveighed against the bureaucratic status quo.

Otherwise, as mandatory bar presidents go, the ones with any real cojones have been those never-say-quit anti-mandatory bar presidents in Wisconsin — three of the last four elected. Despite long odds, they’ve been fighting for a voluntary bar for many years. And trying to divorce themselves from compulsory bar membership, they’ve waged their own version of “conscious uncoupling” well before Gwyneth Paltrow was therapeutically psycho-babbling about it.

Sometime ago, one former Wisconsin bar president who’s advocated for a voluntary bar for decades even made headway based on compelled Free Speech grounds. But it was short-lived. His victory was reversed on appeal by the 7th Circuit.

To be clear, however, that guy in Nevada ain’t advocating removal of the mandatory bar yoke — that’s a furrow too far for most bar insiders. But at least he’s shooting straight on UPL and about what Nevada’s new legislation means. In his latest “Message from the President,” Lefebvre rails against “the commoditization of the practice” and how “the unchecked growth of the Unauthorized Practice of Law (UPL) has been eating away at the financial resiliency of the legal profession for years and years, as we attorneys rub our palms together anxiously, doing nothing.” See “President’s Message: Unauthorized Practice of Law: Redux …

Lefebvre’s so effusive he even signals out Lucy Flores, the bill’s author who he says, “should get a ‘lawyer of the year’ award for her foresight.”

Foresight — what a concept. But so’s candor and especially, courage.

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Photo Credits: “Whitby Sock One,” by LollyKnit at Flickr via Creative Commons-requiring attribution; 200px-Blnguyen_violin.jpg at Wikimedia Commons; Otis_fence.jpg at Wikimedia Commons under the Creative Commons Attribution-Share Alike 3.0 Unported license;”in other words, you have a big mouth,” by Vera at Flickr via Creative Commons-requiring attribution;”Nadya with sock puppet and fish, 2007″ by Nadya Peek at Flickr via Creative Commons-license requiring attribution.

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