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Posts Tagged ‘Nevada Supreme Court’

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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Note: These days accountability is in short supply, it always being easier to blame the other guy when something bad happens. This is especially the case when talking about those wielding unalloyed political, financial, legislative, prosecutorial, religious or as the following lays out law enforcement power.

Standing in the way of holding the powerful accountable is the doctrine of “qualified immunity, which, “balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan.

Lawyers, too, can find themselves without remedy when confronted by a version of the doctrine in the disciplinary process. Lawyers accused of ethical violations but subsequently exonerated of wrongdoing hit their own roadblocks to relief via versions of this qualified immunity doctrine or more commonly its big sister, absolute immunity. Many if not all jurisdictions deem all participants in the lawyer disciplinary process “absolutely immune from civil liability.” Rare indeed is the jurisdiction carving out an exception to a bar prosecutor’s claimed immunity.

As borne out by those supporting a challenge to the doctrine that may hopefully be heard next term by the U.S. Supreme Court, qualified immunity has over time simply become a free pass. The principle that ‘no one is above the law’ is treated like a long-past fancy. It’s nigh time, then, for the nation’s highest court to revisit and restore that principle. The following is reblogged verbatim from Cato at Liberty, The Cato Institute under Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Public License.

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Leading Scholars and Most Diverse Amici Ever Assembled File Briefs Challenging Qualified Immunity

I’ve previously blogged about Allah v. Milling, a case in which a pretrial detainee was kept in extreme solitary confinement for nearly seven months, for no legitimate reason, and subsequently brought a civil-rights lawsuit against the prison officials responsible. Although every single judge in Mr. Allah’s case agreed that these defendants violated his constitutional rights, a split panel of the Second Circuit said they could not be held liable, all because there wasn’t any prior case addressing the “particular practice” used by this prison. Cato filed an amicus brief in support of Mr. Allah’s cert petition, which explicitly asks the Supreme Court to reconsider qualified immunity—a judge-made doctrine, at odds with the text and history of Section 1983, which regularly allows public officials to escape accountability for this kind of unlawful misconduct.

I also blogged about how, on June 11th, the Supreme Court called for a response to the cert petition, indicating that the Court has at least some interest in the case. The call for a response also triggered 30 days for additional amicus briefs, and over the last month, Cato has been coordinating the drafting and filing of two such briefs—one on behalf of a group of leading qualified immunity scholars (detailing the many recent academic criticisms of the doctrine), and the other on behalf of an incredibly broad range of fifteen public interest and advocacy groups concerned with civil rights and police accountability.

The interest-group brief is especially noteworthy because it is, to my knowledge, the single most ideologically and professionally diverse amicus brief ever filed in the Supreme Court. The signatories include, for example, the ACLU, the Institute for Justice, the Second Amendment Foundation, Americans for Prosperity (the Koch brothers’ primary advocacy group), the American Association for Justice (formerly the Association of Trial Lawyers of America), the Law Enforcement Action Partnership (composed of current and former law-enforcement professionals), the Alliance Defending Freedom (a religious-liberties advocacy group), and the National Association of Criminal Defense Lawyers. The brief’s “Statement of Interest” section, after identifying and describing all of the individual signatories, concludes as follows:

The above-named amici reflect the growing cross-ideological consensus that this Court’s qualified immunity doctrine under 42 U.S.C. § 1983 misunderstands that statute and its common-law backdrop, denies justice to victims of egregious constitutional violations, and fails to provide accountability for official wrongdoing. This unworkable doctrine has diminished the public’s trust in government institutions, and it is time for this Court to revisit qualified immunity. Amici respectfully request that the Court grant certiorari and restore Section 1983’s key role in ensuring that no one remains above the law.

The primary theme of this brief is that our nation is in the midst of a major accountability crisis. The widespread availability of cell phones has led to large-scale recording, sharing, and viewing of instances of egregious police misconduct, yet more often than not that misconduct goes unpunished. Unsurprisingly, public trust in law enforcement has fallen to record lows. Qualified immunity exacerbates this crisis, because it regularly denies justice to victims whose constitutional rights are violated, and thus reinforces the sad truth that law enforcement officers are rarely held accountable, either criminally or civilly.

Moreover, qualified immunity not only hurts the direct victims of misconduct, but law enforcement professionals as well. Policing is dangerous, difficult work, and officers—most of whom do try to uphold their constitutional obligations—increasingly report that they cannot effectively carry out their responsibilities without the trust of their communities. Surveys of police officers thus show strong support for increased transparency and accountability, especially by holding wrongdoing officers more accountable. Yet continued adherence to qualified immunity ensures that this worthy goal will never be reached.

The Supreme Court is in recess now, and the defendants’ response brief won’t be due until September 10th, so we’re going to have to wait until early October to find out if the Supreme Court will take the case. But the Court, the legal community, and the public at large should now be aware that criminal defense lawyers, trial lawyers, public-interest lawyers of every ideological stripe, criminal-justice reform groups, free-market & limited-government advocates, and law enforcement professionals themselves all agree on at least one thing—qualified immunity is a blight on our legal system, and the time has come to cast off this pernicious, counter-productive doctrine.

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Photo Credit: Hiding, by Kristin Schmit, at Flickr Creative Commons Attribution License.

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Note: The following is re-blogged with the express permission of author, noted family law specialist, and Nevada attorney, Marshal S. Willick. It was originally posted May 25, 2018 as Volume 66 of the Willick Law Group‘s Newsletter.

Willick’s insights and prescriptions are timely, persuasive and on-the-mark. Among his key recommendations is that the Nevada Supreme Court “assess the efficacy and impacts of mandatory CLE.” His commentary is definitely must reading.

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Vol. 66 – The New CLE Fee Structure Stinks and Should Be Changed

A legal note from Marshal Willick about how Nevada’s CLE system has been made destructive to both education and scholarship while increasing dramatically in cost, and why only the Nevada Supreme Court – which ultimately is responsible for this mess – can do anything about solving it.

The cost of CLE in Nevada just increased by an order of magnitude while the number and variety of available offerings has been greatly curtailed, and scholarship is being actively punished.

I. WHAT CHANGED AND WHY

The Nevada Board of Continuing Legal Education was created in 1982; it is distinct from – but intertwined with – the Nevada Bar Board of Governors (“BOG”). In 2014, in a “turf” squabble, the CLE Board asked the Supreme Court to reduce the number of CLE Board members appointed by the BOG since the Bar was a “provider” and the CLE Board complained of a conflict of interest.

The CLE Board declared that to do its job, it had to be a “stand-alone” entity that was “financially self-sustaining” so as to “avoid or eliminate conflicts of interest.” It complained that the number of lawyers and fees only “grows slowly” but the Board’s “profitability erodes as operating expenses [primarily its own salaries and benefits] increase over time.” It complained that in 2014, the CLE Board expended $15,000 more than it received from fees, while quietly noting a “reserve” from prior fees received of over $600,000.

So the CLE Board submitted ADKT 499 to change its “business plan” from reliance on annual attorney CLE fees (and late fees), claiming (at the beginning, anyway) its intent to get the “hugely profitable” CLE providers to start funding the cost of mandatory CLE to “reduce or eliminate fees for the lawyers.” It apparently never occurred to the CLE Board to explain why it should seek to be “profitable.”

The new plan was supposed to replace lawyer CLE fees by imposing on “accredited” CLE providers an annual fee of $500 plus $5 for each credit hour earned by every attendee, with another $5 per credit to be paid by each lawyer. For “non-accredited” providers, the new business plan charged a $25 “application fee” per program plus $5 per credit hour per attorney to be paid by the CLE provider, with another $5 per credit to be paid by each lawyer.

Begrudgingly, the fees would not apply to providers “that are non-profit and do not charge attorneys for attending their programs,” or to “Federal, State, and local governmental agencies, nor for legal aid, provided they do not charge attorneys.”

The CLE Board predicted that the change would improve CLE in Nevada because “higher quality providers will accept new fees to continue operating in Nevada, while others will exit the State.” No explanation was suggested as to what denoted “quality” or how that had anything to do with being large for-profit enterprises.

The CLE Board also promised to increase efficiency and economy through use of electronic communications to replace paper, to streamline its processes, and to save staff time by ceasing to “cajole” or “hand-hold” lawyers and instead greatly increase financial penalties imposed against lawyers for non-compliance, predicting that doing so would actually decrease the total of those fees by increasing lawyer compliance.

The Bar opposed the reorganization and parts of the new CLE “business plan,” but agreed to collect the annual CLE fees along with annual Bar dues so that fewer lawyers would be confused and end up having to pay the very expensive “late fee” penalty that constituted 40% of the funding of the CLE Board.

After public comment, a hearing, and several rounds of written input, mainly from the BOG and other bar associations, the Supreme Court approved both the reorganization and the new business plan.

II. THE REAL WORLD AND CONSEQUENCES, INTENDED AND OTHERWISE

Many Nevada lawyers have complained about the CLE “industry” for years, noting that it was already much too expensive, and that for many lawyers it was a totally hollow exercise which generated money for both the Bar and the CLE Board but had no discernable effect on actually improving lawyer competence.

For example, see Legal Notes Vol. 33, “Make Lawyer CLE Meaningful” (Jan. 2011); Vol. 36, “Judicial CLE” (Mar. 2011); Vol. 40, “Other Updates to Prior Notes” (Jun. 2011), and Vol. 54, “Putting Your Money Where Your Mouth Is: Cheap & Useful CLE” (Oct. 2012), all posted at https://www.willicklawgroup.com/newsletters/.

Those notes stepped through the history of CLE in Nevada, detailing how it had devolved from the aspiration of promoting lawyer competence into the meaningless extraction of funds to fund the CLE bureaucracy, and how both the Bar and the CLE Board had ignored the obvious reforms that would make it actually useful to the public.

We detailed the huge sums involuntarily extracted from lawyers and being fed to the Bar, to the CLE Board, and to private companies, and protested that since all known studies showed no actual improvement to lawyer competency from mandatory CLE, what Nevada had created was a time-and-money-consuming bureaucracy that falsely portrayed itself as providing a service important to the public, but which actually did not make lawyers better or provide the public any useful information, and so did no actual good.

We explained how my firm was going to try to encourage reform by producing and presenting substantive and specialized CLE at no cost to attendees for the purpose of trying to improve the practice and drive down the fees charged by others.

And we expressed the hope that if that approach was emulated by a sufficient number of others, enough of the profit motive could be taken out of the CLE racket to cause the CLE bureaucracy to focus on actually serving the legitimate interests of lawyers, public, and the courts.

Over the following six years, we produced low-to-no cost CLEs on a wide variety of family law topics, with any money beyond the cost of snacks going to Legal Aid. The “Basics” series (Jurisdiction, Child Custody, Relocation, Property Division, and Practical Mechanics of Family Trial Practice) was acclaimed by those attending, as was the 1-hour Lunch-and-Learn series addressing topics from pension division to the new local rules.

And others did emulate that model – experts throughout the Bar started putting on programs at no cost in their various specialty areas, significantly enhancing the actual education of lawyers in multiple fields.

But this did not generate any money for the CLE bureaucracy, which reacted like a bureaucracy does, seeking its own perpetuation and expansion at the expense of those it purports to serve.

So now, if you want to give away your time, experience, and expertise for the benefit of others, you are required to submit a $25 “application” fee and pay another $5 for every credit that every attendee receives. In other words, for the privilege of volunteering to do all the work to provide a one-hour CLE for 30 people, you have to pay the CLE Board $175. If 100 people happen to show up, it will cost you $525. Lord help you if 1,000 people want to hear what you have to teach.

Who is exempted from paying these fees? The Bar, its sections, and specialty Bars, but only if all proceeds go to legal aid, or to TIP mentors, or the credits offered are 1.5 hours or less. Or if the provider is the government, or a non-profit agency. Otherwise, too bad. The full set of “how we intend to take more money from you” regulations is set out at https://www.nvcleboard.org/formsinformation.asp#.

And this was by no means accidental. The CLE Board, in the debate leading up to adoption of the new regulations, stated in its submissions that it fully intended to cause the “exit of low volume non-accredited providers.” In other words, prevent lawyers from teaching other lawyers for free.

The CLE Board brushed aside the fact that large for-profit providers would obviously pass along to their captive lawyer market the increased fees and costs and that the lawyers would end up paying a lot more every year, saying “Overall, the Board expects no more than a modest effect on provider pricing, as anecdotal input suggests.”

In other words, the CLE Board very deliberately wanted to destroy the ability of lawyers to provide free CLE, because it was not good for the bureaucracy’s income growth, actual damage to the education of members of the Bar be damned. And they knew all along that their new plan would not “reduce fees” to lawyers but would instead greatly increase them, and they didn’t care about that, either.

III. YOU EVEN HAVE TO PAY THEM TO PAY SOMEONE ELSE

The regulations are unclear on the point, but apparently you have to pay the CLE Board if you actually want to obtain specialized education and training in your field.

A divorce lawyer gets the highest-possible quality of education from programs put on by the American Academy of Matrimonial Lawyers. But if you go to the 3-day annual CLE in Chicago – paying to travel there, to register, and to stay out of town for three days – you apparently also have to pay the CLE Board $5.00 for every credit you already paid to get.

So the AAML annual meeting, with its 10.5 hours of general and ethics credit, will cost every attendee another $52.50. Every year. On top of the cost of anything earned in Nevada (you have to pay $5 for most credits earned here, too).

The system has been altered so that the more any lawyer seeks out specialized training and education to actually be better, the more expensive it will be. Low-quality, irrelevant, and outdated CLE can be found which is cheap, but of course signing up for such won’t actually make any lawyer any more competent. The incentives are backward.

IV. THE DELIBERATE DISCOURAGEMENT OF SCHOLARSHIP AND PUBLICATION

Every major legal publication in Nevada works hard to attract quality substantive articles – The Nevada Family Law Report, the Nevada Lawyer, the Clark County Communique, the Washoe County Writ, etc.

One of the few tangible benefits for spending the dozens of hours of research, writing, and editing it takes to create such articles has always been the ability to obtain CLE credit for helping to teach other members of the Bar through such publications.

Now, it will also cost you. Regulation 9 of the new CLE rules imposes a $25 fee to get credit for writing scholarly articles – so if you volunteer your time and expertise to help educate the Bar by writing an article for the NFLR or Nevada Lawyer, you have to pay for that, too.

It is hard to imagine a way to more actively discourage lawyers from volunteering their time and expertise to write scholarly articles. And this thought apparently did not even cross the mind of anyone involved in adoption of the new rules – it appears nowhere in the written record of ADKT 499.

V. THE NEW POLICY IS WRONG AND COUNTERPRODUCTIVE

The “mission statement” of the CLE Board is to ensure that Nevada lawyers “continue their education through a wide range of quality educational programs and to have and maintain the requisite knowledge and skills to fulfill their professional responsibilities.”

But every aspect of the new model discourages providing quality education or scholarship, and decreases what is available to Nevada lawyers who want to actually improve their knowledge and skills. Costs are increased for every lawyer, and the more a lawyer actually cares about getting the best possible education and training, the more it will cost that lawyer.

Every impact of the new plan is directly antithetical to the CLE Board’s supposed reason for existing – but it does feed more money to its bureaucracy. The priorities for those involved in the discussion seem crystal clear.

It is not as if the Supreme Court has not previously been presented with budget impacts related to CLE. In 2016, the Court approved an expansion of CLE from 12 to 13 hours annually, so that every lawyer, every year, had to get a credit related to substance abuse and mental health. We were already the fifth most-expensive-to-remain-in-practice Bar before that change.

Justice Pickering dissented from the addition, noting the minimum $1 million in cost/lost productivity that change would cost, and the entire lack of any empirical evidence that it would actually do any good.

It seems likely that with that new “business plan” being adopted, the CLE Board will make Nevada number one – in cost to remain in practice on zero evidence of any actual benefit to the bench, Bar, or public. Hooray.

VI. RESPONSES BY THE BAR AND SECTION LEADERSHIP HAVE BEEN INADEQUATE

Essentially every entity that participated in the debate over ADKT 499 was solely interested in looking out for its own budget and programs, with scant attention or concern for the lawyers who would end up paying the freight (or their clients, on whom the increased cost of the lawyers remaining in practice ultimately descends). Each entity was focused on trying to secure exemptions from the new fees – for itself.

The State Bar submissions at least claimed to be concerned for the general Bar membership – in addition to the Bar’s own fees and programs, of course – but with all the numbers thrown out during the debate for over two years, no one involved apparently took the time to project what the new policy would actually cost each individual lawyer.

More than anything else, the written submissions looked like Russell Long’s famous summary of input to how tax policy is made in Washington:

Don’t tax you,
Don’t tax me,
Tax that fellow behind the tree.
(William B. Mead, “Congress Tackles the Income Tax” (Money, July, 1973)).

As with the debacle that is e-filing in Clark County, which has been extensively detailed in these notes, it has apparently never occurred to anyone involved that the proper response to increased efficiency, automation, and technology is to lower the cost to the user. If the size of the Bar membership (apparently about 8,000), and the fees that all those members pay, is only growing “incrementally,” then the growth of the bureaucracy’s budget should be likewise constrained to “incremental” increase.

If that is not “adequate,” require the CLE Board to piggy-back on existing State Bar mailings, notices, and staff for functions and communications that can be combined for the purpose of lowering costs.

VII. AN ACTUAL SOLUTION TO THE “PROBLEM”

It is worth circling back to the policy that is supposedly being served by creation of this CLE bureaucracy and the massive money it takes to run it: improving lawyer competence, ultimately for the benefit of the public hiring those lawyers.

The actual “solutions” that would serve that policy goal are simple and cheap, as detailed in Legal Notes 33 and 54 seven years ago: If you want to ensure that lawyers are actually learning something at CLE, require providers to test them on the subject matter of the course. If you want the public to hire the best trained and most educated lawyers, have the Bar publicly post the CLE record of all lawyers so that the public can see the currency and validity of attorneys’ continuing education.

What is not helpful to either lawyers or the public is to fund an ever-better-paid CLE bureaucracy primarily fixated on its own perpetuation and growth.

VIII. CONCLUSIONS

By my estimate, the cost of CLE in Nevada just (at least) doubled, while the number and variety of available offerings has been drastically reduced. Half a dozen companies have pulled out of Nevada entirely, and free CLE offered by law firms has essentially disappeared. Our CLE Board is actively discouraging anyone from wanting to provide either education to others, or scholarship and authorship. The new policy is counterproductive in virtually every imaginable way.

Only the Nevada Supreme Court can do anything about this. The CLE Board will never do anything to reduce its own budget and growth, and neither will the Bar. Both of those entities report to the Court, which should start with figuring out what end results it is trying to produce, and then target policies and directives to actually achieve them.

Given the enormous costs in both time and money, it may be time to re-evaluate the value of the entire system. Getting empirical evidence as to whether mandatory CLE actually does any good would seem to be a good first step.

At bare minimum, policies that discourage volunteering and scholarship should be reversed. There should be no fee of any kind for providing CLE without charging for it, and there should be no fee of any kind for seeking credit for scholarly articles and publications. It would be a good idea to have some kind of sliding scale beyond that, so that folks that have a modest charge to attendees (for example, to finance lunch or renting space) are not punished for providing a public service.

Overall, the concept is that the CLE Board should be focused on facilitating the actual providing of useful information and training to members of the Bar at the lowest possible cost, rather than maximizing revenues to perpetuate its own bureaucracy.

The CLE Board long ago lost all sight of the purpose of CLE, and the bureaucracy spawned is now solely concerned with its own perpetuation, expansion, and increase in budget. As currently constituted, the Nevada mandatory CLE system does nothing measurable to improve the competence of lawyers or judges, and the Bar does nothing to let the public get any potentially useful information from or about it. CLE is now about nothing but funding.

There is no defensible rationale for what has metastasized into the current hot mess. The State Bar, on behalf of the general membership, should ask the Court to assess the efficacy and impacts of mandatory CLE, and the Court, on behalf of the lawyers and the public, should do so.

IX. QUOTES OF THE ISSUE

“In any bureaucracy, the people devoted to the benefit of the bureaucracy itself always get in control, and those dedicated to the goals the bureaucracy is supposed to accomplish have less and less influence, and sometimes are eliminated entirely.”
– Jerry Pournelle (Pournelle’s Law of Bureaucracy)

“Bureaucracies force us to practice nonsense. And if you rehearse nonsense, you may one day find yourself the victim of it.”
– Laurence Gonzales, Everyday Survival: Why Smart People Do Stupid Things

“Bureaucracies are inherently antidemocratic. Bureaucrats derive their power from their position in the structure, not from their relations with the people they are supposed to serve. The people are not masters of the bureaucracy, but its clients.”
– Alan Keyes

“You will never understand bureaucracies until you understand that for bureaucrats procedure is everything and outcomes are nothing.”
– Thomas Sowell

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For some of the CLE materials and articles produced by the Willick Law Group, go to https://willicklawgroup.com/cle-materials/ and https://willicklawgroup.com/published-works/. For the archives of previous legal notes, go to https://www.willicklawgroup.com/newsletters.

If there are any problems with or suggestions for these newsletters, please feel free to email back to me. Thanks.

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In June I wondered whether the Nevada Bar would be first to impose an unconstitutional speech code on their members. In May, that Bar’s governing board had filed a petition asking the state supreme court to amend a lawyer professional conduct rule, specifically ABA Model Rule 8.4(g).

Purporting to prohibit lawyers from engaging in harassing or discriminatory conduct, the new, vague, and over broad ABA Model Rule 8.4(g) would have chilled free speech; weaponized lawyer discipline; and infringed on lawyers’ free exercise rights.

Surprise, surprise, surprise!

As it happens, though, another state beat Nevada to the punch. In August, Vermont surprised a lot of people — not the least being Vermont lawyers — to become the first and so far, the only jurisdiction to adopt the ABA’s suggested model rule.

Noting how there were “zero public comments submitted,” law professor Josh Blackman wrote on his blog, “The bar counsel for the state’s professional responsibility program boasted, “So as you can see, this rule obviously had a lot of support.” 

Opposition in Nevada

As for Nevada, acknowledging that “many comments were filed in opposition . . . that caused the Board to pause,” the Nevada Bar backed off its rule change petition in a letter to the state high court declaring “it prudent to retract.” Just the same, in what seems little more than face-saving, the Board also expressed its “reservation to refile” if and when supposed inconsistent language in other jurisdictions is sorted out. That all this so-called inconsistency in other jurisdictions was already well-known is, of course, unmentioned. Every jurisdiction, after all, is free to adopt its own professional conduct rules.

It’s also worthy of note that though the court twice extended the public comment period, no comments were ever filed in favor of the Bar’s petition. All comments filed were opposed. The Board’s request was granted September 25, 2017.

So Vermont notwithstanding, the proposal has to date continued facing strong opposition not just in Nevada but elsewhere. The key is lawyers being adequately informed about it. What has to be overcome are the preferences of mandatory bar majordomos inclined toward the enactment of onerous initiatives as fait accompli with little preceding notice, detection or commotion. But when lawyers are told and widely noticed the opportunity to comment, legal elites have problems flying their officious meddling under-the-radar.

So far the proposed ABA Model Rule 8.4(g) has been turned back in other states, including Illinois, South Carolina and Louisiana. It has been roundly criticized in Texas and failed to find traction in Montana. See “Montana legislature says ABA model rule on discrimination and harassment violates First Amendment.”

The rule is currently under review in Utah but has encountered powerful headwinds there, too. It is opposed in Idaho. And in Arizona, opponents are galvanized to fight an ABA Model Rule 8.4(g) petition queued up for January 2018.

Yet despite all this, this month the ABA Journal took artistic license to soft pedal the reality of this mounting widespread antagonism to the lawyer speech code, writing, “States split on new ABA Model Rule limiting harassing or discriminatory conduct.”

Vermont, apparently, wasn’t an outlier. “States split,” they say.

And I’m a superhero.

Alternative facts, alas, remain in vogue.

 

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Credits: “Oral Exam,” by Ben Sutherland at Flickr Creative Commons Attribution; “What,” by Alexander John, Flickr Creative Commons Attribution; “40+112 Superhero Fail,” by Bark at Flickr Creative Commons Attribution.

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SG_01_IMG_3458_MFI was disappointed to recently learn from a colleague about the demise of the Washoe County, Nevada volunteer program known as SAFE, Special Advocates for the Elderly. SAFE’s purpose is to assist judges by independently gathering and evaluating information about elders under or facing guardianships.

Based in Reno, NV, the Washoe County SAFE program became a victim of the great recession when grants and donations apparently dried up during 2008 to 2010. The sad consequence was that an indispensably meritorious organization was forced to shut its doors. A shame I’m late on the news.

SAFE

rep.5 | by simajeSAFE volunteers are appointed by the court in civil or criminal matters involving allegations of exploitation, abuse or neglect of a vulnerable adult or ward. In addition to acting as the court’s eyes and ears, SAFE volunteers provide essential companionship that improves the quality of life and enhances the dignity of at-risk elders. And unlike financially motivated stakeholders, these volunteers work autonomously for the court as trained advocates not conflicted by financial self-interest.

The model for SAFE is the Court Appointed Special Advocate (CASA) program for children. CASA advocates “for the timely placement of abused and neglected children in safe, permanent homes and for the highest quality of their care while they are under the court’s jurisdiction.”

rep.1 | by simaje

SAFE volunteers are trained to investigate the appropriateness of guardianship for elders by visiting residents in nursing homes and other facilities. They review court documents and accounting records. They interview witnesses, family members, attorneys, and facility staff. Advocates prepare reports of their findings for the court and attend court hearings for the wards.

I’ve been remiss not keeping up with the topic of elder financial abuse here as I once did. The problem hasn’t gone away. Far from it. In fact, I still think SAFE ought to be duplicated throughout the country.

Happily, the SAFE program created 6 years ago in Douglas County, NV continues to thrive. I’ve even heard Douglas County’s SAFE has become a state model and that it may be adopted by other Nevada counties.

https://i1.wp.com/cdn.morguefile.com/imageData/public/files/b/bjwebbiz/preview/fldr_2008_11_02/file000228637046.jpgIndeed, last week the same Nevada colleague speculated that SAFE’s laudable objectives may even be gaining traction with a Nevada Supreme Court statewide commission created a year ago to study the administration of guardianships in Nevada’s Courts.

Under Nevada Supreme Court Administrative Order ADKT 0507, the Commission to Study the Creation and Administration of Guardianships in Nevada’s Courts has been reviewing the processes for creating guardianships and conservatorships, stakeholder accountability, court documentation and tracking, judicial training, and any resources available or needed to assist Nevada’s courts in administering guardianships.

While it’s commendable Nevada’s high court has tasked a state commission to undertake this comprehensive review, why does it always seem such praiseworthy initiatives only occur in temporal proximity to media scrutiny, scandal and public embarrassment?

the Clinquant of the Future | by DerrickTLike in other jurisdictions, including Arizona’s, probate court reforms come in fits and starts and seemingly only after disconcerting media revelations. In 2011, for example, The Arizona Republic published a multi-part investigation, “Probate Court: A Troubled System,” which “revealed that Maricopa County Probate Court is allowing the life’s savings of vulnerable adults to become engines of profit for attorneys, for-profit fiduciaries and care providers. Their fees can drain a large portion of the assets of people who have lost the ability to take care of themselves.” Court reforms and remedial legislation followed.

In Nevada, ongoing problems with the probate system in Clark County came to light in a series of Las Vegas Review-Journal articles published in April 2015. “Cases high­lighted by the newspaper showed a lack of oversight by the courts, such as failing to require guardians to file annual accounts of a ward’s finances even though it is required by state law.”  Two months later, there was a statewide guardianship commission.

DSCF1286 | by rahnekat

But no matter the timing or how belated, this ought not diminish the importance of the Commission’s charge. Past Supreme Court Chief Justice James W. Hardesty is Chairperson and is joined by stellar state jurists with longstanding interests in doing right by Nevada’s most vulnerable populations.

Additionally, the Supreme Court’s Order limited the Commission membership to no more than 20 representatives from the public and private guardianship system. And in a refreshing departure from the insular approach too often taken by Arizona’s high court, Commission members also include members of the state legislature and even the news media. Public testimony has also been taken statewide.

And so strong is the Commission’s interest in getting it right that the deadline for the its final report was recently extended by the current Chief Justice to September 30, 2016. The Commission’s website has news, documents and forms as well as meeting recordings. I will keep you posted.

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Credits: “rep.5” and “rep.1” by sima dimitric at Flickr Creative Commons Attribution; “the Clinquant of the Future” by Derrick Tyson at Flickr Creative Commons Attribution; “DSCF1286 Nevada Supreme Court in Carson City. January 18, 2011” by Rahne at Flickr Creative Commons Attribution; other photos via Morguefile.com no attribution required.

 

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I was watching a segment on Sunday about America’s oldest teacher, Agnes ‘Granny’ Zhelesnik of New Jersey, who just turned 100 and is still working 35-hours a week teaching home economics to kids. Going strong five days a week, she hasn’t called in sick since she was 98. And the children adore her.

Living deep.

LAW AND JUSTICE 63

Which prompted me to wonder whatever became of Alice Thomas who graduated from law school at age 79.  That was four years ago. And it was news then because Thomas was at the time, the oldest person ever to graduate from McGeorge Law School in Sacramento. It was another of those seasoned citizen atta-girl/atta-boy moments I like so much.

For instance, there’s Charles Elliott who last year turned 100-years old and marked that milestone by skiing at the Colorado ski resort he helped found. He made four runs before stopping to sip champagne and eat cake with members of the Gray Wolf Ski Club.

And when it comes to aging fearlessly with joy, who can forget Ilona Royce Smithkin or Oliver Sacks or ‘over-the-rainbow’ Dorothy Ellis or ski slope silver surfer 91-year old Klaus Obermeyer or centenarian Octavio Orduño — who I hope is still riding his bike well past 100.

Although it’s increasingly more commonplace, most of us won’t be hitting the century mark — much less going beyond it like the now late Brazilian architect Oscar Niemeyer who famously called turning 103 a ‘crap’ birthday. Just the same, these are people who grabbed life by the throat. And who regardless of advancing years, chose to live deep and to continue sucking the marrow out of life.

Biting not “nibbling” at injustice.

lentes01As for Alice Thomas, on graduating law school she remarked how she aspired to ‘nibble’ at injustice. Since I couldn’t locate her on the state bar’s membership directory, I’m not sure if she ever sat for the bar exam in Nevada. But all the same, that’s not stopped her from trying to make good on her aspirations and to do more than just nibble at injustice.

The now 82-year old Thomas has been busy. She founded and heads a non-profit organization called Civil Rights for Seniors to provide legal services to seniors and other Nevada residents and to empower them through advocacy. “Seniors must be our priority as they do not have time to regain their security and take part in the General Welfare, a guarantee under our Bill of Rights,” she told Senior Spectrum Newspaper.

It’s confidential.

People 153Last October, her organization made news despite losing a state supreme court case seeking expanded public access to Nevada’s Foreclosure Mediation Program records. The records are maintained by the Administrative Office of Courts (“AOC”), which is an arm of the Nevada Supreme Court. Thomas and her organization wanted access to those records to “verify one way or another whether the program is or is not a success.”

https://i0.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/a/a9/Sign_of_the_Times-Foreclosure.jpg/320px-Sign_of_the_Times-Foreclosure.jpgIt’s a good question even though overall I think Nevada’s Foreclosure Mediation Program has done more good than bad. Nonetheless, that doesn’t mean the program hasn’t been a mixed bag.

But how successful? That hasn’t been entirely clear. In 2011, the Reno Gazette-Journal concluded “that independently assessing its effectiveness was difficult because of incomplete data and a far-reaching confidentiality policy that encompasses nearly all of its records.”

j0289753Civil Rights for Seniors tried testing the limits of that policy and ran into the same problems the newspaper did with respect to the “far-reaching confidentiality” of those records. The organization also made much of the fact the since the Nevada Supreme Court administers the foreclosure mediation program and shares in the fees — it had a conflict of interest. The Court’s decision is outrageous!” said Thomas. “I am not surprised, but since when can judges sit in judgment of themselves and decide their own cases?” The case is Civil Rights for Seniors v. AOC, 129 Nev. Adv. Op. 80 (Oct 31, 2013).

NRS: Chapter 239 generally provides the public with access to inspect and copy public books and records held by governmental entities to the extent permitted by law. Civil Rights for Seniors’ records access efforts were turned back when the high court ruled the foreclosure mediation records held by AOC, a judicial entity, “are confidential as a matter of law.”

Despite this setback, I doubt it’s dissuaded Thomas and her legal team from persisting in efforts as she told “Senior Spectrum” to hold “those accountable who need to be held accountable” or from working to “create the conditions seniors need to flourish.”

Secret of life.

Like all the above-mentioned octogenarians, nonagenarians and centenarians, Thomas found her “one thing.” As Curly told Mitch in City Slickers, it’s what each of us has to find to get to our own “secret of life.”

In Curly’s words, it’s the “One thing. Just one thing. You stick to that and the rest don’t mean shit.”

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Photo Credits: “Not in Kansas Anymore,” by garlandcannon, at Flickr via Creative Commons-licensed content requiring attribution;”Sign of the Times – Foreclosure,” by respres at Wikimedia Commons via Flickr under the Creative Commons Attribution 2.0 Generic license.

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“Politicians are like diapers. They both need changing regularly and for the same reason.” – Unknown

https://cdn.morguefile.com/imageData/public/files/a/anitapatterson/preview/fldr_2004_10_16/file0001529137639.jpgAs I don’t think much of politicians, I’m in favor of term limits. And this is why I invoked the above-mentioned quote about pols and their affinity to soiled nappies when I blogged about lawyers who discuss politics with clients.

File:Unangenehme Vaterpflichten.JPG

U.S. public domain tag

But the quote’s also timely since the Nevada Supreme Court has agreed to look at whether term limits as enshrined in Article 15, section 3 of the state constitution apply to district attorneys. More to the point, is it constitutionally permissible for a recently reelected county district attorney to serve a fourth term since he’s already held the Office for 12 years?

Article 15, section 3, (2) of Nevada’s Constitution states: “2. No person may be elected to any state office or local governing body who has served in that office, or at the current expiration of his current term if he is serving will have served, 12 years or more, unless the permissible number of terms or duration of service is otherwise specified in this Constitution.”


O’Connor v. Mallory

In filing his appeal to Nevada’s highest court, John O’Connor is challenging the reelection of wanna-be 4 term Churchill County District Attorney Arthur Mallory.

O’Connor says that D.A.s are “either a legislative or state office under Article 4, section 32 of the Nevada Constitution” and that term limits apply.

Mallory, on the other hand, says that the constitutional provision is inapplicable since he’s a local officer not a state officer. See O’Connor v. Mallory (57312)

But these semantic distinctions are nonsensical. When the Nevada electorate voted for term limits, they intended to hold elected nonjudicial officials accountable by limiting the terms of their political office so they couldn’t be either local or state office lifers.

‘Whatchamacallit’

But leave it to lawyers to argue over labeling the ‘whatchamacallit’ while forgetting what the ‘thingamajig’ was meant for.

As for myself, I don’t think it much matters whether you call it a donkey or a burro, it’s still a jackass. And if D.A.s aren’t politicians and political animals in every sense, then you can beat me like a rented mule.

And then there’s what Stephen Raher wrote in “Defending D.A. Term limits” about a Colorado referendum that would have exempted D.A.s from term limits. Raher said the “immense power” wielded by district attorneys places them at the pinnacle of the elected officials who need the greatest degree of oversight and control. “Probably no other person in government can affect an individual’s life as much as a prosecutor – – and no one can harm an innocent person as much as a district attorney bent on bringing a highly publicized prosecution.”  

Far as I know, Colorado is the only state that term limits district attorneys. It was part of a 1994 amendment to Article 18, Section 11 of the state constitution that limited all “elected government officials(2) other than judges, to two four-year terms. Most district attorneys around Colorado have term limits.

Poster-child prosecutorial misconduct.

To underscore why I think such limits are a good thing, take poster-child New Orleans, Louisiana where in the absence of term limits, Harry Connick, Sr. ruled for 30 years. Connick’s tenure as head of the Orleans Parish District Attorney’s office was best distinguished by prosecutorial misconduct charges.

The bad part is that despite instances of misconduct in New Awlins and elsewhere, prosecutors are largely immune from adverse consequences. Time and again, the prosecutorial bacon is saved.

Moreover, there’s little respite or remedy from the canons of professional responsibility. For instance, how often are prosecutors disbarred? (1)

A recent study also found that prosecutors who withhold evidence are almost never disciplined. And the same study further concluded that,“professional responsibility measures as they are currently composed do a poor job of policing prosecutorial misconduct.” See The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct.” (2)

Further corroborating what happens when there’s no accountability, down in the ‘Big Easy,‘ notwithstanding the U.S. Supreme Court’s wrong-headed decision in Connick v. Thompson, the hits just keep on coming. For the third time in 16 years, the U.S. Supremes will get more bites at the same apple as the “Orleans Parish D.A.’s Office Again Faces U.S. Supreme Court.”

And doubtless since he invested so much of himself in the Thompson Opinion, Justice Clarence Thomas will likely again take up the lead in gently applying his cavalier ministrations on the ham-fisted work of Orleans Parish prosecutors.

So back in Nevada, in light of the above, the practical and realistic solution to protect the community from potential prosecutorial abuses is to term limit the D.A. – – –  just as the voters intended.

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(1) But hold that thought for the non-refuting rule exception in the case of Maricopa County Attorney Andrew Thomas.

(2) David Keenan, Deborah Jane Cooper, David Lebowitz & Tamar Lerer, The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 Yale L.J. Online 203 (2011), http://yalelawjournal.org/2011/10/25/keenan.html.

(3) “Section 11. Elected government officials limitation on terms. (1) In order to broaden the opportunities for public service and to assure that elected officials of governments are responsive to the citizens of those governments, no nonjudicial elected official of any county, city and county, city, town, school district, service authority, or any other political subdivision of the State of Colorado, no member of the state board of education, and no elected member of the governing board of a state institution of higher education shall serve more than two consecutive terms in office, except that with respect to terms of office which are two years or shorter in duration, no such elected official shall serve more than three consecutive terms in office. This limitation on the number of terms shall apply to terms of office beginning on or after January 1, 1995. For purposes of this Section 11, terms are considered consecutive unless they are at least four years apart.

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