January 2018

Find content from our “Five Things” issue of COMMUNIQUÉ (January 2018) and read these features online now:

READ THE DECEMBER 2018 ISSUE – Click cover image above to download the full 32-page issue (3 MB PDF file).

Find more event more content in the print/PDF edition:

  • “View from the Bench: District Court on a Roll as 2018 Begins” By Chief Judge Elizabeth Gonzalez
  • “Nevada Appellate Court Summaries” by Joe Tommasino, Esq.
  • “Pro Bono Corner: Change Your Perception of the World Forever” By Erica Tosh, Esq.
  • “Departments: Bar Business, Member Moves, New Members, Court Changes, and The Marketplace”

© 2018 The following articles were originally published in COMMUNIQUÉ, the official publication of the Clark County Bar Association. (January 2018). All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.


Five Things to Know About Clark County Lawyers

By John P. Aldrich

John P. Aldrich

It is my honor and privilege to serve as the President of the Clark County Bar Association (“CCBA”) in 2018. The CCBA has been an integral part of the legal community for decades. The past presidents of the CCBA are a veritable “Who’s Who” of our local legal community, many of whom are pillars of the community. I am looking forward to this year and hope to carry on the great tradition.
In keeping with this issue’s theme, I present five things you should know about Clark County lawyers.

1. Clark County attorneys are among the best in the country.

I serve as local counsel on many litigation matters. I have the opportunity to work with excellent, sophisticated attorneys from law firms located in larger markets across the country. While I am often impressed by those attorneys’ skills and abilities, I also recognize that my colleagues on the other side of the courtroom are every bit as skilled and capable as the attorneys who come here from other jurisdictions. And the local lawyers never mess up the pronunciation of “Nevada.”

2. Even though Clark County is getting bigger, the legal community is still small.

“MEET YOUR JUDGES MIXER” – SAVE THE DATE: Click image above to find details about our May 17, 2018 event.

Although Las Vegas is growing and becoming even more prominent, the legal community remains close yet accessible. We know we will encounter opposing counsel on the next case, at the grocery store, or at our kids’ basketball games. We know judges personally and may see them at the Smith Center or our favorite restaurant. Supreme Court of Nevada justices show up at all types of events and know lawyers by name. Hundreds in our legal community support the CCBA’s “Meet Your Judges Mixer” every year. As a result, we have a level of congeniality that attorneys and judges in other markets do not enjoy.

3. We know how to disagree without being disagreeable.

I have been fortunate throughout my career to work with attorneys who are professional even when we do not agree on everything. Those attorneys advocate their client’s position strongly without resorting to unnecessary personal attacks. I have done battle with some of Clark County’s best attorneys. In many instances, those attorneys have become my friends. And now that I have been practicing for many years, I have many “old friends” with whom I have “grown up” in the practice of law.

4. The CCBA is full of mentors.

When I started my law firm 13 years ago, I had been practicing just five years. Particularly in those early years of my firm, I was in need of advice for a myriad of issues. I have called former supervising attorneys, former opposing counsel, and attorneys I had seen present a CLE or met at a CCBA function and asked for “free legal advice.” In nearly every instance, and without seeking any benefit for themselves, the attorneys were gracious and willing to help. Over the years, those mentors have provided me with guidance in many aspects of my practice and many have become friends.

5. When the chips are down, we are there for each other.

The October 1st tragedy affected all of us. In the aftermath, Clark County attorneys stepped up to help in every way imaginable. In nearly every conversation in the several weeks following October 1st, colleagues with whom I spoke checked in on my friends and family to find out if help was needed. That is how it works here in Clark County. I am proud to be associated with all of you! #Vegasstrong

“Good Lawyers Doing Good”
It is no secret that the public’s perception of lawyers is, in many instances, not favorable. Contrary to that perception, there are many lawyers out there doing much good. Many CCBA members give back to the community in a big way. In my columns during 2018, I would like to focus on a CCBA member who is doing something significant or special to give back to our community. CCBA members serve on non-profit boards, coach youth sports teams, contribute time and money to good causes, and provide pro bono services of all kinds. These are “good lawyers doing good.” If you would like to nominate someone to be featured in “Good Lawyers Doing Good,” please e-mail me and tell my why that attorney deserves consideration and/or recognition. My e-mail is jaldrich@johnaldrichlawfirm.com.

John P. Aldrich is the founding partner of Aldrich Law Firm, Ltd. John has 18 years’ experience as a litigation attorney with a focus in business litigation, personal injury and appellate matters. John is licensed to practice in the States of Nevada, Utah and Idaho. John will serve as President of the Clark County Bar Association during 2018.


Five Things Attorneys Need to Know About Sexual Harassment

By Jennifer K. Hostetler, Esq.

Jennifer K. Hostetler

In recent months, sexual harassment has inundated the national news headlines. Spurred on by the #metoo movement, the disturbing allegations of sexual harassment, misconduct, and/or assault directed at a variety of public figures in entertainment, politics, technology, and news have brought greater scrutiny and awareness to sexual harassment in the workplace. This article outlines five things attorneys need to know about sexual harassment.

1. What is sexual harassment?

Sexual harassment is a form of employment discrimination that is based upon sex. It consists of any unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature, either verbal or physical, that results in a negative employment action or a hostile or abusive work environment.

2. What are the forms of sexual harassment?

There are two forms of sexual harassment: (1) quid pro quo and (2) hostile work environment.

Quid pro quo (“this for that”) harassment occurs where enduring or submitting to conduct becomes a condition or term of employment or a basis for employment decisions affecting the individual.

A hostile work environment exists where the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Fuller v. Idaho Dep’t of Corr., 865 F.3d 1154, 1161–62 (9th Cir. 2017). The Equal Employment Opportunity Commission confirms that “[a]lthough the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).” See https://www.eeoc.gov/laws/types/sexual_harassment.cfm.

3. Is sexual harassment prohibited by both state and federal law?

Yes, sexual harassment is unlawful under Title VII of the Civil Rights Act of 1964, as amended, and NRS 613.330.

4. Are employers liable for the conduct of their supervisors?

Generally, yes, but an employer may avoid liability for a hostile work environment at the hands of one of its supervisors if the employee suffers no tangible adverse employment action related to the alleged harassment and the employer demonstrates the following: (1) it exercised reasonable care to prevent and promptly correct harassing behavior, and (2) the employee unreasonably failed to take advantage of the corrective opportunities provided by the employer or to otherwise avoid harm. Faragher v. City of Boca Raton, 524 U.S. 775, 789 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998).

5. What can employees and employers do in the wake of this spotlight on sexual harassment to ensure it does not occur or is promptly addressed?

Employees should review and become familiar with their employer’s sexual harassment policy and take special care to ensure their conduct adheres to that policy. Key to this is ensuring that employees follow all complaint reporting procedures, alerting the employer as soon as he or she becomes aware of any conduct that may be considered harassing, whether directed at him or herself or others.

Employers should take steps necessary to prevent sexual harassment from occurring. They should establish strong sexual harassment policies and clearly communicate to employees zero tolerance. Employers should also ensure they provide sexual harassment training to employees, establish an effective complaint or reporting process, fully investigate any complaints of inappropriate conduct, and take immediate and appropriate action to remedy any substantiated complaints.

Jennifer K. Hostetler, Esq. is a litigation attorney at Lewis Roca Rothgerber Christie LLP. Her employment practice focuses on the defense of employers in state and federal court against claims of discrimination, harassment, retaliation, wrongful termination, breach of contract and violation of wage and hour laws.


Five Things to Know About Landlord-Tenant Law

By Carli L. Sansone, Esq.

Carli L. Sansone

Navigating residential landlord-tenant law can be challenging, as Nevada law imposes strict requirements on both landlords and tenants. As a result, an attorney who practices in this area should be aware of the following:

1. Lease terms must comply with certain requirements, or they might be void.

Lease terms might not be binding if they do not comply with Nevada law. For example, it is unlawful for a landlord to use a lease that does not conform to the requirements of NRS 118A.200. Any provision in a lease that contravenes those requirements is void. As a result, a certain term might not be binding simply because it is in the lease.

2. Landlords are bound by certain requirements regarding security deposits.

A landlord cannot demand or receive a security deposit that is equal to or greater than three months’ rent. NRS 118A.242(1). Additionally, except for a nonrefundable cleaning charge, a lease cannot make the deposit nonrefundable or require the tenant to waive his or her rights under NRS 118A. The landlord can only keep the amount reasonably necessary to remedy damages the tenant caused other than normal wear and to pay the reasonable costs of cleaning. NRS 118A.242(4).

3. Landlords must provide an accounting within 30 days after a tenancy ends.

The landlord must provide the tenant with an itemized written accounting of the deposit and return any remaining funds within 30 days after the tenancy ends. The landlord must either personally hand the accounting to the tenant where rent is paid, mail it to the tenant’s current address, or mail it to the tenant’s last known address, if the tenant’s current address is unknown. NRS 118A.242(4).

4. Landlords must maintain units in a habitable condition. The habitability of a unit is mandated by statute. To be habitable, a unit must:

  • Comply with housing or health codes; and
  • Provide:
    ▶ Effective waterproofing and weather protection of the room and exterior walls;
    ▶ Floors, walls, ceilings, stairways, and railings maintained in good repair;
    ▶ Working plumbing, heating, electrical lighting, outlets, wiring, and electrical equipment;
    ▶ Working ventilation, air-conditioning, and other facilities/appliances, if landlord supplies;
    ▶ Adequate water supply;
    ▶ Sufficient garbage receptacles when the tenancy begins; and
    ▶ Landlord controlled areas that are clean, sanitary, and reasonably free from buildup. NRS 118A.290.

Consequently, a unit that is not up to the tenant’s standards might still be habitable, in which case his remedies are limited.

5. Tenants must follow proper procedure if there are habitability issues.

Specifically, the tenant must deliver written notice to the landlord that specifies each habitability failure and request that the landlord remedy each failure. If a failure is remediable, the landlord has 14 days after he or she receives notice to either remedy or use his or her best efforts to remedy the failure. Only if the landlord fails to remedy or make a reasonable effort to remedy a material failure within 14 days of notice can the tenant terminate the lease, recover damages, request court relief, or withhold rent. NRS 118A.355.

Carli L. Sansone received her J.D. from the William S. Boyd School of Law and her B.A. in psychology from the University of Nevada, Las Vegas. Carli currently works as an associate attorney at Vegas West Attorneys. Immediately before joining Vegas West Attorneys, Carli served as law clerk to the Honorable Vincent Ochoa, Judge in the Eighth Judicial District Court, Family Division.


Five Things to Know About Red Collar Crime

By Mike Rosten, CPA, CFE and Adam Bowler, Esquire, CFE

Adam Bowler, Esquire, CFE
Mike Rosten, CPA, CFE

Most of us are familiar with white collar crime, but may not be as familiar with the term “red collar crime.” White collar denotes criminals who commit non-violent crime, such as employee fraud and embezzlement. When someone threatens a fraud scheme, the fraudster may stop at nothing to keep running his operation. Red collar crime is committed by a small sub-group of white collar criminals that use violence to avoid fraud detection.

One example includes a New York man, the ringleader of a counterfeit check scam, who hired a hitman to kill his co-conspirator when she was arrested and agreed to cooperate with investigators. He felt such pressure to avoid detection that he had her killed rather than allow her to expose the fraud. This classic case of white collar crime evolved into a physical crime that took away a life. See E.D.N.Y. Docket No. 14-CR-0227.

So, what should you know about red collar crime?

1. Contrary to popular belief, white collar criminals can display violent tendencies and they should be considered potentially dangerous.

Our legal system typically classifies white collar criminals as non-violent, giving them lighter jail time in low security prisons when compared to their more violent counterparts. However, this is a misconception. Violent white collar criminals have a history of criminal thinking and deviant behavior. Fraudsters are people who already feel comfortable bending the rules and blurring the line between right and wrong.

2.The motive for red collar crime is typically the concealment of fraud to avoid detection.

Just as the elements of the fraud triangle (pressure, opportunity, rationalization) explain why individuals commit white collar crimes, it can also explain why they turn to murder. The perceived pressure they feel at the thought of discovery can be immense – loss of respect, lifestyle, jail time, embarrassment, and family are all reasons to keep the fraud concealed at all costs.

3.Those prosecuting or investigating white collar crime should be prepared for potential violence.

Knowing that anyone can become violent in an intense situation, be cautious in interviewing or representing white collar criminals. Acting in a capacity to bring fraud to light may place a professional investigator or attorney in potential danger.

4.Another term to describe red collar crime is fraud detection homicide.

In these situations, the fraud was always committed prior to or concurrent with murder and violence.

5.Those susceptible should protect themselves against possible red collar crime through proper training.

Have a plan in place for reporting and investigating employee fraud, which may include an anonymous hotline operated by a third party. An internal fraud accusation to the wrong person could lead to violence in the workplace and subsequent workers comp and other insurance claims.
Mike Rosten, CPA, CFE is a Shareholder at Piercy Bowler Taylor & Kern CPAs (mrosten@pbtk.com.)
Adam Bowler, Esq., CFE is an attorney and fraud investigator at PBTK (adam.bowler@pbtk.com).


Five Things to Know About Jury Selection

By Betsy Allen, Esq.

Betsy Allen

I have long held that a case is won and lost during jury selection. In an effort to impart upon all of you the way in which a jury is selected, I sat down to write what I thought are the five most important aspects to remember during voir dire. Despite my best efforts to be concise, my list quickly expanded past five. So, I consulted other attorneys whom I respect and know to have experience talking to people they have never met and know nothing about, with the singular goal of convincing them of their version of events.

First, be yourself. Do not try to be anyone other than you. This is trite, I know, but it is basic. Jurors can smell a phony in less than 30 seconds. Remember, jurors come into the process with two basic tenets: lawyers are liars and the system is broken. So, be funny and lighthearted, self-deprecating, and real. Making someone laugh is the easiest way to get them to open up to you, which is what you want.

Second, and this relates to number one, get them talking. The more the jury panel talks to you, the more you know about who they are and how they will think. You are attempting to pick a panel of people, who are total strangers to you, who will decide for the fate of your client (sometimes literally).

Third, pay attention! Not only to what the jurors have said, but also to their body language. Do NOT ask a question and then ignore the answer. The surest way to alienate a potential juror is to ignore what they have to say after YOU have asked for their opinion. Look at how they respond to you while you are talking to them and even when you are not. Rolling eyes, crossed arms, and sighs are all good signs they are not happy with your line of questions or themes.

Fourth, you are beginning the trial during voir dire. I realize that the statute says differently, but this is truly when your case starts. All of your bad facts, good facts, and otherwise awful facts should be broached during jury selection. You are a lawyer, which means some part of you is creative! Use your creativity to discuss your “case” with the jury now.

Fifth, establish a rapport with the jury. If they like you, they will listen to you. If they listen to you, you can win (maybe not everything, but that is a subject for a different article). Do not be afraid to ask questions and get the responses, even the really bad ones. All the “really bad” jurors and the “really good” jurors (depending on your respective sides) are going to be released with preemptory challenges anyways. Use the responses from both sides to educate the rest of the jury.

Finally, have fun!! This is your one and only chance to talk to these people before they render a verdict.

Betsy Allen is a criminal defense attorney in Las Vegas, Nevada. She has been practicing for 18 years and participated in over 50 jury trials. Jury selection is the best part of doing a trial, in her humble opinion.


Five Things to Know About the E-Filing System

By Melinda Vereen-McDuffie

Melinda Vereen-McDuffie

The integration of the new e-filing system “File and Serve,” for the Eighth Judicial District Court for Clark County has been an adjustment for most users. Here are a number of benefits and disadvantages with the system:

1. Create multiple uses under one account

Firm admin can send invites for users to join firm account, as well as do the following:

  • Firm admin can create and delete payment accounts
  • Automatically receive notifications of filing status without using courtesy copies
  • Add separate lead documents within one filing
  • Change firm name and contact information
  • Copy rejected or canceled envelopes
  • Monitor document size limitations, including:
    • One document cannot exceed 40mb
    • The entire envelope cannot exceed 50mb
    • You can reduce your document size at www.smallpdf.com

2. What can a filer do?

  • E-file documents
  • Add service contacts
  • Create bookmarks
  • Create templates
  • Reconcile filings and fees
  • Resume drafts after filings have been rejected

3. The template feature allows you to set up reusable templates for frequently used filings, which saves time and assures accurate filings.

The system is able to issue summons electronically and file multiple filings of the same case in one envelope, which allows the client to save money and time for the staff.

4. It provides the ability to pay with a checking account for only $1.00 Per filing/envelope.

It will also accept all major credit cards.

5. Lastly, the system does not attach orders to notice of entry of orders to a filed stamped order and then have it e-filed and served as one document.

Currently, the order must be scanned, e-filed, and served; then the notice of entry of order must be prepared, attached to the order, and scanned as one document to be e-filed and served.

For questions regarding Tyler Technologies File & Serve, see its contact information below:

Melinda Vereen-McDuffie is a Paralegal/Administrator for Stovall & Associates and also volunteers with the CCBA’s Community Service Committee and Publications Committee.


About COMMUNIQUÉ

COMMUNIQUÉ is published eleven times per year with an issue published monthly except for July by the Clark County Bar Association, P.O. Box 657, Las Vegas, NV 89125-0657. Phone: (702) 387-6011.

© 2018 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

COMMUNIQUÉ accepts advertisements from numerous sources and makes no independent investigation or verification of any claim or statement made in the advertisement. All articles, letters, and advertisements contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Clark County Bar Association.

COMMUNIQUÉ is mailed to all paid members of CCBA, with subscriptions available to non-members for $75.00 per year. For advertising information and editorial policy, please contact Steph Abbott at (702) 387-6011 or stephabbott@clarkcountybar.org.