Mixed Juice

Last week, the Nevada Supreme Court (specifically the three justice panel of Cherry, Saitta and Gibbons) decided that O.J. Simpson got a fair trial and his conviction should stand - and the decision had nothing to do with the fact that he killed his ex-wife and her boyfriend and got away with it.

In the same breath, the same panel decided that C.J. Stewart did not get a fair trial and reversed his conviction - you know, because O.J. Simpson killed his ex-wife and her boyfriend and got away with it.

What do you guys think ... did they get it right?

(Simpson Decision (PDF); Stewart Decision (PDF); LV Sun; Thanks, Tipster!)

Candelaria Decision Posted

The Nevada Supreme Court has issued its decision in In re Candelaria.

As you may remember, this was the case of Boyd Law student graduate Amber Candelaria, who attempted to meet the judicial candidacy requirements of NRS 4.010(2)(a) for justice of the peace by relying on her invoice from the State Bar requiring her to pay the dues of a fifth year attorney.

Justices Cherry and Saitta were "deeply troubled" by the majority justices defining a year as (generally) 365 days, and filed a dissent to the opinion. Hooray for elected judges!

(Opinion; Thanks, Tipsters!)

State Bar Slaps Gage With Petition

In a stunning display of intestinal fortitude, the State Bar filed a petition with our Supremes seeking to suspend Noel Gage's law license. From the RJ:

If previous disciplinary procedures are an indication, Gage could be disallowed from the practice of law for more than a year as the investigation unfolds.

The Nevada Supreme Court generally approves such recommendations.

We happened to get our sweaty little palms on a copy of the petition (Part 1; Part 2). To be honest, tl;dr.

We did, however, find one interesting document during our skim. It appears that criminal defense heavyweight William Terry may be representing Gage in his proceedings. (Bill's reputation is much better than his website). If that's true, we hope bar counsel Rob Bare is ready to rumble.

If you find yourself a little heavy on the billables today, take a look at the petition an tell us if you find anything interesting.

(LVRJ; Thanks, Tipsters!)

UPDATE:

Our apologies to those of you who were offended by our previous accompanying photograph. Our mandatory 12 hours of blogger sensitivity training taught us that photographs of domestic violence, even from old black and white movies, are not acceptable.

Judging the Judges 2010 - The Supremes

The RJ's Judging the Judges poll results are out. It seems that attorneys feel everyone on our highest court is a keeper ... well, almost everyone. Here's how the numbers brake down for the High Court:

• Justice Michael Cherry: 74% would retain
• Justice Michael Douglas: 72% would retain
• Justice Mark Gibbons: 85% would retain
• Justice James Hardesty: 73% would retain
• Justice Ron Parraguire: 82% would retain
• Justice Kristina Pickering: 65% would retain
• Justice Nancy Saitta: 50% would retain

One (maybe two) of these things is not like the others ... why? Let us know your thoughts on the results of the Supreme's poll in the comments. We'll be posting about the remaining polls throughout the week.

(LVRJ - Supremes PDF)

Thoughts on the Proposed Appellate Court

There's a lot of buzz concerning the ballot initiative that would allegedly give the Nevada legal world what it so badly needs: an intermediate appellate court. Our local lawyer factory has directed students in a Community Law class to do some legwork and "educate" the public on the proposal.

While we admit that an appellate court is definitely in the top five of things we feel this legal community needs, we're not so sure that this is the right way to do it after reading the available materials. Mostly, this graphic scares us:

Do you see anything wrong with that picture? Our main concern (and something that's not addressed in any of the UNLV materials) is what happens in "Star Land."

Why not set the court up like a "normal" court of appeals, with the Supreme Court only reviewing those cases whose parties petition for certiorari after going through the appellate "filter?" Seems to be a system that works in the majority of other jurisdictions, as well as our federal system.

If it's a budgetary matter, do we really want to half-ass an appellate court just so we can say we have one? Are the three proposed appellate judges really going to make that big of a dent in the Supremes' caseload, which is currently triple the ABA "recommend"case load? How is this system going to produce more published case law?

We're interested in your thoughts. We agree that we need an appellate court, badly. We're just wondering whether this is the correct way to do it. What do you think? And if you know, please explain to us what exactly happens when a case reaches "Star Land."

(BSL Info Page; Legislative Proposal)

Supremes Reject State Bar's Wrist-Slappery

It looks like our Supremes might be sending a little message to the State Bar. The Court has rejected the recommendation of the Southern Nevada Disciplinary Board that Philip Singer be disbarred for three years and repay $67,334 to eight clients. The board also said Singer must submit to binding arbitration on $32,200 in dispute.

According to the LV Sun, Singer admitted to stealing "mishandling" close to $100,000 of his clients' funds. He pled guilty to 14 counts of bar violations and admitted to 59 violations involving misappropriation of funds and failure to communicate with his clients. He also pled guilty to lack of competence and diligence and lack of candor and cooperation with the State Bar.

The Supremes viewed the State Bar's proposed punishment as "inadequate to protect the public." We'd have to check Brooklyn Law School's tuition to see if Singer qualifies for the WWL bright-line rule, but regardless we say good for the Supremes for finally taking a stand against the ridiculously underwhelming punishments SBN has been considering lately.

However, to our disappointment, the Supremes only requested an additional two years of disbarment and 15 hours of ethics CLEs. Not exactly hard-hitting. What do you guys think? Where should the line be for permanent disbarment in this state?

(LV Sun, Thanks Tipster!)

Invasion of the Body [Parts] Snatchers

Our Supremes have a hot new issue on their docket: setting precedent for the mishandling of human remains.

A 29-year-old man from the U.K. flew down to Vegas in 2005 for a bachelor party. It must have been one hell of a party - because he died. Acute cocaine and alcohol intoxication were found to be the cause of death, so at least he went happy.

Anyhoo ... the U.K. man had his autopsy performed by the Clark County coroner's office, and his body was subsequently wrapped and shipped back to the Queen. However, when it arrived it was slightly lighter because the man's body was missing its heart, brain, liver, kidneys and lungs.

The facts sound a little like some overzealous torts professor's res ipsa hypothetical:

The family alleges that the coroner’s office took or lost the organs, falsely claimed to have turned them over to the cremation society, and conspired with that company to conceal the whereabouts of the organs. The family also alleges that cremation employees stuffed a sheet inside the body to conceal the fact that the organs were missing.

The family also alleges that another defendant, coroner employee Monique Beverly, initially completed a release form indicating that the organs were not with the body when they were released to the embalmer. She then corrected the form to indicate that the organs were placed in a bag and transported with the body, the family said.

The coroner's office denied wrongdoing, stating that the form was inadvertently marked stating that the organs were not with the body and later corrected. The coroner also cited a deposition from a mortuary employee who said the organs were placed in the body cavity and “powdered down with a hardening compound.”

The case has been handed to our Supremes by U.S. District Court Judge Phillip Pro. When Judge Pro needed to make rulings based on state law, he discovered (shockingly) that Nevada had none. Therefore, Pro asked our Supremes to hear arguments from all parties involved so that it could establish a legal precedent.

We look forward to the explanation of Nevada's new judicially-mandated organ tracking procedure.

(LV Sun)

Baking Delicious Cookies Is Not A Bad Act

As Nevada residents, there are various things you have to learn to live with. Water restrictions, only having two seasons, and a sever severe lack of published case law due to the absence of an intermediate appellate court, to name a few. As for that last one, the opinions we do get are often sometimes unclear. This week's example came to us via email from a helpful tipster.

The Nevada Supreme Court recently issued two advance opinions: Fields v. State (1) and Fields v. State (2).

Both cases involved the same issue: Should prior bad acts be admitted as relevant to show a common plan or scheme. One case was against the husband, John Vernon Fields, and was decided en banc by the entire Court. The other case was against the wife, Linda Fields, and was decided by a 3 judge panel of Cherry, Saitta and Gibbons.

The bad acts in both cases were the same, the acts were committed by the couple. In the case against the wife, the three judge panel decided that the bad acts should not be admitted. In the case against the husband, the en banc court decided that the acts should be admitted. So we have conflicting decisions by the Supreme Court. Oh, and the fact that both cases are captioned "Fields v. State" should make for some confusing criminal briefs in the future.

But here's the interesting part: Judges Cherry and Saitta dissented from the en banc decision because they believed the bad acts should not be admitted, which conformed to their decision in the wife's case. Judge Gibbons, however, did not dissent and agreed with the majority that the bad acts should be admitted ... which is contrary to his decision in the wife's case.

Any of you criminal-types or appellate mavens care to explain these seemingly conflicting decisions? What about Gibbons apparent flip-flop? And, perhaps more importantly, what is the current state of the admissibility of bad acts to show a common plan or scheme in Nevada?

(Thanks, Tipster!)

Coming Soon: The RJC-HMO Plan

The Supremes have put our district court judges on notice that, beginning December 1st, criminal defendants who were previously represented free of charge (to them, anyway) will now be assessed a "fee." From the LVRJ:

In a nutshell, indigent defendants who are represented by the public defender or a private appointed attorney will be charged on a sliding scale -- a minimum $250 if their case is resolved at the justice court level and up to a maximum $750 if the case nears trial or goes to trial. The more work put into a case, the higher the fee.

Whether to impose the fee is at the discretion of the judges. Judge Herndon summed up the fees this way: "This is their co-pay, now we're an HMO."

Clark County Public Defender Phil Kohn said that the PD's office is not the one imposing the fee, nor will they be handling the collection of the fees. This raises an interesting question: Who will be handling collections? Somehow we doubt it will be the DA.

The current plan seems full of problems, but the district courts are apparently going forward with it on December 1st, problems or not.

(LVRJ)

"Private Citizen" Bob Lueck Gets "Judge" Teuton Removed

Unhappy with your current judge? Try filing a motion to have them removed from the bench.

Attorney Bob Lueck ("Divorce without bloodshed" ... nice) sought leave to file a petition on behalf of the State of Nevada for a writ of quo warranto removing Judge Robert Teuton from office. While The Supremes found that Lueck lacked standing, they agreed that the judge has overstayed his welcome and actually removed him from the bench.

Teuton was appointed by Governor Gibbons in August of 2008 to fill a spot left vacant in family court. Teuton’s written commission designated the first Monday in January 2011 as its expiration date (the date the particular seat Teuton occupied was up for reelection). However, according to Justice Cherry, the Nevada Constitution says otherwise:

The legitimacy of the extended commission depends on the meaning of “next general election,” as used in the Nevada Constitution provision noted above. Thus, in resolving this issue, we address whether “next general election” means the election most immediately following the appointment or, as has been asserted, the next general election in which the vacancy may be filled in strict compliance with all election deadlines. In view of the apparent intent behind the Nevada Constitution’s “next general election” language to allow Nevada citizens to elect a new district judge as soon as possible after an office becomes vacant and to correspondingly limit the Governor’s appointment powers, we conclude that judicial vacancy appointments expire on the first Monday in January after the first general election following that appointment, without exception. Here, then, with regard to the temporary appointment at issue, the appointment expired on the first Monday in January after the November 2008 general election.

That's right, the Court said "sayonara" to Mr. Teuton.

So, now that we have a vacant judicial seat in family court, we're guessing the Governor needs to appoint someone. Anyone think Gibbons has the stones to appoint Teuton again?

(Nevada Judiciary)

Supremes decides it's best to keep certain prisoners in jail pending appeal

In a decision that took them way too long, our Supremes concluded on Friday that it was not in their best interests to let O.J. Simpson out on bail pending the appeal of his case.

Justices Cherry, Saitta, and Gibbons signed the Order, noting that while NRS 178.488 allows them to grant bail to criminals pending appeal, they choose not to do so in this case.

Good call, boys (and girl).

(LV Sun)

Nevada Sixth Circuit Calling Out the Supremes?

Nevada lawyer recently did a profile of the Judges of Nevada's Sixth District and one paragraph caught our eye. Judge Richard A. Wagner was asked what one thing he would change about Nevada's legal system, and the article states his response was:

If there were one thing Wagner could change about Nevada’s legal system, it would be for the Nevada Supreme Court to recognize the separation of powers doctrine between the District and Supreme Courts. He feels that the current Nevada Supreme Court seems to be attempting to interfere by creating additional rules for the district courts.

Shazam! That's a classic shot across the bow, folks. And from a District Judge, telling the Supremes to back off. It's rare to see District Judges being so outspoken, but hell, this is Nevada. And the Sixth Circuit is old-school Nevada, encompassing Humboldt and Pershing counties, with the courthouse [pictured left] located in Lovelock. We expect Judge Wagner still rides a horse to work.

One other thing: we haven't taken Con Law yet, so we're confused about something. Is there a "separation of powers" doctrine between trial courts and appellate courts?

Lawyerly News Roundup

Family law attorneys are going hungry up north. Damn recession is causing couples to try to work it out. (RJ)

Poor "Pimp Snooky" [pictured right] just can't convince authorities that he's not actually a pimp. It might have something to do with Snooky's repeatedly saying he's a pimp on Jerry Springer and the movie "Pimps Up, Hos Down" or his catch phrase “let me pimp, or let me die”. (LV Sun)

Many young attorneys dream of the day they have their first trial. Few dream that Nevada Supreme Court Justice Mark Gibbons might make the trial just that much more intimidating by presiding over the trial. (LV Sun)

Poor Noel Gage. Now the Nevada Bar says he's violated attorney ethics by sharing funds with [alleged crook] medical consultant Howard Awand. (RJ) Oh well, at least he's safe on the criminal charges [unless the Ninth Circuit decides Nevada should be allowed to clean up its attorney ranks]

Note to Counsel and "Medical Consultants": You Might Want to Pay Your Taxes

Update: while we were busy lecturing counsel about how simple it is to pay your taxes, the Feds brought a tax evasion case against [alleged] crook "medical consultant" Howard Awand and his wife for failure to pay several years worth of taxes. (RJ) Just goes to show you: if you manage to wiggle your way out from under a federal indictment that alleges that you are the central lynch pin in a cadre of corrupt doctors and plaintiff's attorneys, you might wanna pay those taxes. As one commentator suggested, if you can't take down Capone Awand for criminal conspiracy, you go after the taxes.

Prior Post:
It's been a bad first-half of the year for non-tax paying attorneys. In February, old school Nevada attorneys Edmund C. Botha and Mark A. Lobello were found to have failed to pay their taxes. (NV Lawyer).

So, the Nevada Supreme Court made one of its usual Nevada ethics judgment calls: suspension for Botha and Lobello, but only temporary suspension. I mean, cah'maaaaan . . . they're only the fiduciaries and trustees of their clients' funds. So what if they aren't trustworthy enough to satisfy their annual requirement as U.S. citizens to pay taxes? Yup, the Nevada Supreme Court continued its tradition of letting almost anyone continue to practice in this state, no matter what they've done.

But wait, apparently, the Feds apparently weren't satisfied with the Nevada Supreme Court's brand of frontier justice (LV Sun):

A Las Vegas personal injury attorney, [Edmund C. Botha], who was convicted last year of tax evasion and owes almost $4 million to the IRS was sentenced today to five years in federal prison [by U.S. District Judge Dawson] . . .

Botha was convicted by a federal grand jury on Sept. 25, 2008, for willful evasion of payment of income tax for the tax years 1998 through 2001.

How'd Botha do it? Well:

Botha avoided paying taxes by purchasing luxury vehicles in his ex-girlfriend's name, doing all of his business in cash and cashier's checks and entering into a sham child support agreement requiring him to pay about $20,000 per month for two children, court records and evidence presented at his trial indicated . . . Evidence further showed that Botha purchased more than 10 vehicles worth more than $400,000 over a six-year period in his ex-girlfriend's name, while at the same time owning only a 15-year-old car with more than 100,000 miles on it in his name.

How dare Judge Dawson go to such extremes? Cah'maaaaan, Judge, this is Nevada. Follow the Nevada Supremes lead: pretend to care about ethics, but make sure everyone gets to keep practicing law. I mean, you could have just given Botha community service. It's the Nevada way.

[on a side note, I'm single right now Mr. Botha, if you want to put some $400k cars in my name]

Welcome back Mr. Posin: the Bar lowers itself

WWL would like to welcome Mitchell Posin [on the left in picture] back to the practice of law in Nevada. We expect big scandals things from you in the future, mister. Last time you had your license, you embezzled or stole or covered up or conspired with your father to take or misplaced the $191,500 from the Posin & Posin client trust fund.

What exactly happened to make the money go missing? Well, the Nevada Supremes did not specify Mr. Posin's involvement in the "disappearance" of client funds from the firm's client trust fund. (Disciplinary opinion available here). Instead, the opinion just states that the money left the account, was not returned and Mr. Posin violated 51 unspecified professional conduct rules.

How did the money disappear and stay missing? Turns out the firm just wasn't very good at keeping track of those pesky client funds:

Deputy Bar Counsel David Clark, who presented Mitchell Posin's case to the disciplinary board, said at the time that the firm's financial practices were marred by "years of sloppy accounting and years of dereliction."

He also said the problems were exacerbated by Mitchell Posin's lack of cooperation with Bar inquiries into client grievances. (RJ)

Mr. Posin spent 17 months on suspension and has repaid much of the clients' money according to the RJ report. Nice job Supremes. Wouldn't want to go too hard on a fiduciary who can't handle his clients' funds without taking or assisting or covering up the theft the misplacing of the money.

Here's an idea, Supremes: why not make Mr. Posin hand out information to every potential client explaining his history of client fund mismanagement? At least then the general public could decide whether or not to hire Mr. Posin, or at least ask for a discounted rate. Oh well. Why bother cleaning up the bar and protecting the public?

Nevada attorneys aren't doing their homework

Like any good parent, the Nevada Supreme Court worries about their kids. The legal children of Nevada have been staying up late, they don't follow the rules and many of them have stopped doing their homework.

The RJ reports:

The Nevada Supreme Court is working on stringent new rules to ensure that lawyers continue to update their legal education. Justices say there has been an unacceptable trend of non-compliance, with about 15 percent of the state's licensed lawyers not meeting the requirements for annual education updates [1,118 lawyers according to LV Sun].

In an Order issued by the NV Supremes (available here), the Court asks the Board of Continuing Legal Education to increase the fines for noncompliance and implement automatic suspension of licenses lawyers who do not fulfill their CLE obligations after receiving a single notice of delinquency. (Appealing in Nevada)

Is it a real shocker that Nevada's legal children aren't following the rules and satisfying their professional requirements? This blog is full of the repeated unethical and embarrassing antics of inept counsel around the state. Plus, from what we've heard, the CLE requirements are mostly any empty gesture towards the idea of professionalism in the law, with most lawyers simply zoning out for three hours to earn three CLE credits.

Freedom - 1, State Regime Repressing Creativity and Wit - 0

Rest easy Nevadans. Your civil rights have been preserved. On Wednesday, the Nevada Supreme Court ruled that the Nevada Department of Motor Vehicles may not prevent a car owner from displaying a license plate reading "HOE". Let Freedom Ring!

The RJ reports:

A Las Vegas man won a courtroom battle Wednesday with the Nevada Department of Motor Vehicles over his "HOE" license plate, which the agency refused to renew on grounds that he was using a slang reference to prostitutes.

The Nevada Supreme Court ruled that the DMV based its refusal of William Junge's vanity plate on definitions found in the Web-based Urban Dictionary, which includes
user contributions. It ruled that the contributed definitions "do not always reflect generally accepted definitions for words."

Not so fast Nevada DMV. You can't just deny a person license plates without due process. Not on the ACLU's watch! The ACLU, recognizing the crucial importance of this case represented Mr. Junge before the Nevada Supreme Court to make sure that the driver's rights to have a ridiculous license plate were protected. (RJ)

To be clear, apparently Mr. Junge wanted "TAHOE" for his Chevy Tahoe license plate with a Lake Tahoe panorama, but "TAHOE" wasn't available so he settled for "HOE". Not sure what's more ridiculous: that Mr. Junge paid court costs and attorneys fees so that his Chevy Tahoe would he Tahoe-themed or that the DMV felt this was an issue it needed to defend in court.

God Bless Freedom and [Ta]hoes of all kinds!

Drive Thru closed? Not for Justice Pickering

Nevada Supreme Court Justice Kris Pickering apparently has a grudge against United Parcel Service. She was in a parking lot this morning and saw a UPS store lurking, so she bravely stepped on the gas and rammed the front of the store. The RJ reports:

Supreme Court Justice Kris Pickering drove her Mercedes sedan into the front of a UPS store near Rancho Drive and Charleston Boulevard around 9 a.m.
today, the store's owner said. . .

"The whole front just exploded inward," Halovich said. "All the wood and glass flew in like shrapnel and everything shot right by me. Miraculously, it just missed me."

Ok, Justice Pickeirng doesn't have a UPS store vendetta. According to the article, her accelerator got stuck while she was parking, forcing the car into the store's windowfront.

Anyone know a good product liability defense attorney in town? Mercedes is going to need one.

Update: Las Vegas Now has posted closed circuit video of the accident:

Time To Bring Back The Stocks

Lending further credence to our theory that you actually have to murder a client to get disbarred in this state, The Supremes suspended two attorneys this week.

Las Vegas attorney Doug Crawford was suspended from practicing law for 5 years for stealing $398,345 from his clients in order to support his gambling habit.

The Supremes rejected the Disciplinary Board's recommendation to disbar Crawford stating “[t]he purpose of attorney discipline is to protect the public, the courts, and the legal profession, not to punish the attorney.”

Right. Public, you may consider yourself protected ... for the next five years. After that, you're on your own.

Crawford has been temporarily suspended since 5/1/07 pending the outcome of this hearing. No word on whether he'll get credit for time served.

Next, Las Vegas attorney Darren Walker received a 40 month sentence for "engaging in the unauthorized practice of law and for not responding to a formal complaint filed against him by the State Bar of Nevada."

Walker was suspended (for the first time) in 2007 for failing to pay his bar dues and for failing to maintain his continuing legal education requirements. While he was suspended, a snitch fellow attorney reported that he was continuing to practice law.

Huh, well, we're sure he will listen this time. No more practicing law, Darren! You don't want to risk another suspension, do you?

The Supremes gave Walker a 40 month suspension despite the Disciplinary Board's recommendation of 30 months; which begs the question: Why do we have a Disciplinary Board?

(LV Sun; LVRJ)

An ex-felon in possession of a firearm is not inherently dangerous. Wait, what?

The Nevada Supreme Court recently handed down an unpublished opinion wherein it ruled that an "ex-felon in possession of a firearm" charge could not be used as the predicate felony for purposes of a felony murder conviction. From the opinion:

"We agree with the district court that, when viewed in the
abstract, 'ex-felon in possession of a firearm' is not inherently dangerous."

So, there you have it, you may now stop worrying about felons with firearms. The opinion is unpublished and can't be used as precedent under SCR 123.

(Harmful Error; State v. Spina)