June-July 2015

Click to download PDF file of full issue.
Click to download PDF file of full issue.

Articles from the CCBA’s publicationCommuniqué (June/July 2015):

“Annulments: Not Easy By Design” by Hon. Mathew Harter

“Recent Changes in Child Custody Law: Dimming the Bright Line Rule for “Physical Custody” Designations in Nevada” By Jack W. Fleeman, Esq.

“Custody Matters Pertaining to Unmarried Parents” By Erin Houston, Esq.

“Court Orders and the Recovery of Parent-Abducted Children” By By Victor-Hugo Schulze, II, Senior Deputy Attorney General, Nevada State Children’s Advocate and Kristina M. Janusz, Esq.

“Warning Signs of Client Exploitation: Practice Tips for Attorneys” By Homa Sayyar Woodrum, Esq.

“Get It Up Front: Alternative Fee Structures” By Jason P. Stoffel, Esq.

© 2015 The following articles were originally published in COMMUNIQUÉ, the official publication of the Clark County Bar Association. (June/July 2015, Vols. 36, No. 6/7). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.


5356-Harter-MathewP-11-2015-webAnnulments: Not Easy By Design

By Hon. Mathew Harter

The world views marriages performed in Las Vegas as somewhat fictional, primarily due to their portrayals in the media. Thus, many erroneously assume what can be obtained simply and with such frivolity can then legally be erased thereafter with similar ease. Surely, pulling through a drive-thru chapel having your favorite superhero, Disney character, or the resurrected Elvis himself perform your nuptials can’t be too difficult to undo, right? Untrue. This general misconception is somewhat similar to those anarchist tourists that end up in CCDC after finding out the hard way that we do have real laws, that The Hangover was just a movie, and what happens in Vegas does not always stay in Vegas.

In Irving v. Irving, 134 P.3d 718 (Nev. 2006), Justice Hardesty noted that Nevada has the same serious view of marriage as the rest of the United States and those parts of the world rooted in English common law. Consequently, Irving held that there is a “public policy in favor of marriage and against annulment” and “courts will generally not annul a marriage absent clear and convincing evidence.” Id. (emphasis added).

Unless at the time of your Vegas hitchin’ you married a child without proper court or parental consent, see NRS 125.320; it slipped your mind that you are currently married, see NRS 125.290; and/or you married a relative, see id. (and, yes, that full trifecta of shame is plausible), then you are left with only three narrow grounds to annul the marriage. Under the second two grounds listed below, if the complaining spouse realizes the error but continues voluntarily to live as husband and wife, they forego their right to get an annulment. There is no “saintly” defense of they were only trying their best to make their blessed union work out.

Contract void in equity (NRS 125.350)

Marriage is a civil contract, but “no particular form is required except that the parties [vow to] . . . take each other as husband and wife.” NRS 122.110(1). That’s all! This author has found when this ground is used, two bases are routinely alleged: (i) lack of a meeting of the minds and (ii) mistake. Although a meeting of the minds is a basic contract requirement, “[a] contract can be formed . . . when the parties have agreed to the material terms, even though the contract’s exact language is not finalized until later.” May v. Anderson, 119 P.3d 1254 (Nev. 2005). Further, “[i]f a person is in fact aware of certain uncertainties, a mistake does not exist at all. One who is uncertain assumes the risk that the facts will turn out unfavorably to his interests.” Tarrant v. Monson, 619 P.2d 1210 (Nev. 1980). The simplest solution to this and the next ground is to ask questions. Ask lots of questions before you marry.

Fraud (NRS 125.340)

It is no secret that love-struck individuals usually embellish a bit to impress their fiancés. Although it can be a fine line, there is a distinction between fraud and “fluff,” otherwise known as negligent misrepresentation. See McLaughlin v. Williams, 665 S.E.2d 667 (S.C. Ct. App. 2008). Fraud is “[a] knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment.” Black’s Law Dictionary (10th ed. 2014). Being a victim of fraud may qualify you for an annulment; blindly believing “fluff” will not.

Want of understanding (NRS 125.330)

This ground is defined in the statute itself as one of the parties being “incapable of assenting thereto,” which includes insanity. “[T]he burden [is] on plaintiff to prove by clear and satisfactory evidence that he was so far intoxicated [or insane] when he went through the marriage ceremony as to have been incapable of giving a rational assent to the obligations imposed.” McNee v. McNee, 237 P. 534 (Nev. 1925). Thus, video evidence of the bride passed out by the commode post-reception is irrelevant. The issue is did she understand what she was doing during the ceremony.

Closing

Because of the seriousness of marriage, family court judges are required to ensure that the record contains substantial evidence supporting the annulment. Judges have a duty to protect the integrity of the court and can address any issues sua sponte. Christensen v. Christensen, 14 N.W.2d 613 (Neb. 1944). This duty does not change or become relaxed simply because the parties enter a stipulation or a default gets entered. Further, annulments are an equitable relief, so the maxims in equity apply. Plaintiff cannot have unclean hands. Id. (denying plaintiff husband annulment because he entered into marriage knowing he was afflicted with venereal disease). Second, equity aids the vigilant, not those that slumber on their rights. McConnell v. Wells’ Estate, 393 A.2d 830 (Pa. 1978). Those who inexcusably wait for years, sometimes decades, before attempting to annul their marriage may waive their right.

Many wish they could just simply take the proverbial mulligan and legally erase their first marriage. It’s not that easy—even in Vegas.

Family Court Judge Matthew Harter serves in Department N in the Family Division of the Eighth Judicial District Court. He was re-elected in 2014.


Jack W. Fleeman, Esq.
Jack W. Fleeman, Esq.

Recent Changes in Child Custody Law: Dimming the Bright Line Rule for “Physical Custody” Designations in Nevada

By Jack W. Fleeman, Esq.

The biggest fight in domestic family law cases is often over the physical custody of children. “Physical custody involves the time that a child physically spends in the care of a parent.” Rivero v. Rivero, 125 Nev. 410, 421, 216 P.3d 213, 222 (2009). In addition to parents wanting more time than the other parent has, physical custody is important because the characterization of a parent’s physical custody—primary, joint, or non-custodial—determines the amount of child support a parent will pay or receive, and defines what test the court will apply if one parent wants to move with a child out of state in the future.

In Clark County, the default rule for most judges appears to be that joint physical custody is in the best interest of a child if each party is a fit and proper parent living in the same general locale. This default rule is likely based on Nevada’s policy that the court must “ensure that minor children have frequent associations and a continuing relationship with both parents after the parents have become separated or have dissolved their marriage.” NRS 125.460.

Based on the state’s policy and the apparent default rule for joint physical custody, it may seem obvious that nearly every custody dispute in Nevada will end with parents having joint physical custody. This, of course, has not been the case over the years. In fact, even with that being the policy and rule, before 2009, it was often difficult to determine what the term “joint physical custody” meant from one judge to another.

Before 2009, Nevada law presumed joint physical custody to mean approximately a “50/50 timeshare.” Rivero, 125 Nev. at 424; see Wesley v. Foster, 119 Nev. 110, 112-13, 65 P.3d 251, 252-53 (2003); Wright v. Osburn, 114 Nev. 1367, 1368, 970 P.2d 1071, 1071-72 (1998). However, as practical matter, many parents had no ability to share their children on a 50/50 basis. Thus, for some judges, granting joint physical custody would not have been in a child’s best interests because the timeshare required would have been impractical or impossible under the parties’ circumstances.

For other judges, the opposite might have been true. While a 50/50 timeshare was presumed to be joint physical custody, the time required for joint physical custody had not been explicitly defined. For these jurists, a stipulated order granting joint physical custody would have been permissible, even for a parent far below a 50/50 split, with the finding that the joint physical designation was in the child’s best interests. After all, the sole consideration of the court in making an initial custody determination was, and continues to be, the child’s “best interests.” NRS 125.480(1).

In 2009, the Nevada Supreme Court addressed the lack of a bright line rule head on. See Rivero, 125 Nev. 410. The court adopted the “guideline” that a parent must have “at least 40 percent of the time” with a child to be considered a joint physical custodian. Id. at 426. If a parent did not have 40 percent of the time, then “the arrangement [was] one of primary physical custody with visitation” to the parent with less than 40 percent. Id.

In the years following Rivero, our district courts have witnessed an influx of motions to modify custody based solely on parents exercising timeshares inconsistent with the existing custody order. After Rivero, attorneys began arguing that the de facto timeshare, alone, could be used to modify the existing order because the Rivero court stated that the district court “must use the terms and definitions provided under Nevada law” when ruling on a motion to modify custody. Id. at 429.

Using Rivero, a parent that had been given two days a week under the order (less than 40 percent), but that actually had the child for three days each week (just over 40 percent) in the year or years following the order, would file a motion to modify child custody based on his or her de facto timeshare alone. The parent would argue that the burden had shifted to the non-moving parent to show why the existing “joint physical custody [was] not in the best interest of the child.” Id. at 427.

When this type of motion was filed, and it often was, at least some judges would modify the existing order from primary to joint physical custody. In many cases, the modification of the custody order was based solely on the de facto timeshare. A similar modification happened in the recently published case of Bluestein v. Bluestein, 131 Nev. Adv. Op. 14 (2015).

In Bluestein, a mother who had stipulated to a joint physical custody order later filed a motion to modify custody based on her de facto primary physical custody timeshare. Id. At an evidentiary hearing, the de facto timeshare the parents were exercising was determined to be one in which the mother had more than 40 percent. Id. As such, as a matter of law, the district court determined that the mother was the primary physical custodian.

In its opinion, the Nevada Supreme Court reversed the district court’s decision because the lower court failed to set forth specific findings that a modification of the existing joint physical custody designation was in the child’s best interests. Id. This was not surprising because best interests must always be considered in custody decisions. However, what was surprising to many, is that the court also chose to explicitly dim the bright light line rule from Rivero, stating, “Rivero’s 40-percent guideline should not be so rigidly applied that it would preclude joint physical custody when the court has determined in the exercise of its broad discretion that such a custodial designation is in the child’s best interest.” Id. (citing Ellis v. Carruci, 123 Nev. 145, 161 P.3d 239, 241 (2007)).

The Bluestein opinion is clearly a dimming of Rivero’s bright line definitions of physical custody designations in Nevada. The question is how much dimming has occurred. Only a couple of months after the decision, it appears that the Bluestein opinion has given back at least some of the discretion district court judges seemed to have lost under Rivero. The days of granting custody modifications based solely on de facto timeshares are over. The worry now is that in ending those days, the Nevada Supreme Court may have brought back the days of uncertainty that existed when the definitions of physical custody designations were not governed by a bright line rule.

Jack W. Fleeman, Esq. is an attorney at the Pecos Law Group. His practice includes representing clients in a wide range of domestic relations matters, including complex divorce, custody, child support, paternity, relocation, adoption, and termination of parental rights matters.


Erin Houston, Esq.
Erin Houston, Esq.

Custody Matters Pertaining to Unmarried Parents

By Erin Houston, Esq.

Many couples are choosing to start their families before entering into marriage. In fact, the Centers for Disease Control reports that 40.6 percent of children born in the year 2013 were born to mothers who list their marital status as single. National Vital Statistics Reports, Volume 64, Number 1.
http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64_01.pdf, January 15, 2015.

Unmarried parents have the same rights and responsibilities regarding their children as parents who are married at the time of birth. Nevada law states that the parent and child relationship extends equally to every child and parent, regardless of the parents’ marital status. NRS 126.031. In fact, Nevada law explicitly states that will be no preference to either parent on the sole basis of whether they are the mother or father. NRS 125.480(b).

There remains some confusion about whether an unmarried mother has more physical custodial rights for a minor child than the father. The answer? It depends. Nevada law gives an unmarried mother primary physical custody of a minor child if the mother has not married the father of the child and a “judgment or order of a court” has not been entered to determine paternity. NRS 126.031. However, an executed Affidavit of Paternity functions as an order of the court pursuant to NRS 126.053. The Affidavit of Paternity is usually signed in the hospital after the child is born. It does not have to be lodged with the court. If the father has signed an Affidavit of Paternity, the mother cannot claim primary physical custody under NRS 126.031.

In some instances, the father is unsure whether or not he signed an Affidavit of Paternity, which is sometimes called a voluntary acknowledgment of paternity. If the father is unsure, start by checking the minor child’s birth certificate. If the father’s name is on the birth certificate, he either signed the Affidavit of Paternity, was married to the mother at the time of the child’s birth, or another order has been entered reflecting his paternity. In other words, if the father’s name appears on the minor child’s birth certificate, the father most likely has equal custodial rights under Nevada law.

The legislature clearly intended that both parents have equal access and opportunity to develop a meaning relationship with the minor child which requires that no preference be given to either parent on the sole basis of whether they are the mother or father of the child. NRS 125.480(2).

Erin Houston, Esq. is an associate attorney at Goldsmith & Guymon, P.C., where she practices primarily in the areas of bankruptcy, domestic representation, guardianship proceedings, estate planning, and probate litigation. She was formerly a staff attorney at Nevada Legal Services.


Court Orders and the Recovery of Parent-Abducted Children

By Victor-Hugo Schulze, II, Senior Deputy Attorney General, Nevada State Children’s Advocate and Kristina M. Janusz, Esq.

According to the National Center for Missing and Exploited Children, approximately 800,000 American children are reported missing each year, including approximately 160,000 victims of parental abductions. These cases can run the gamut from short instances of custodial interference to permanent disappearances by non-custodial parents with the subject children.
Within the civil law context, Nevada law provides for five types of orders that a family court judge can issue to enforce a parent’s right to custody:

  1. 1. An order for the production of a child, commonly referred to as a “pick up order,” under NRS 125.470(1).
  2. 2. An order for the production of a child with law enforcement assistance, also commonly referred to as a “pick up order” under NRS 125.470(2).
  3. 3. An order for the immediate physical custody of a child under NRS 125A.515;
  4. 4. A warrant to take physical custody of a child under NRS 125A.525.
  5. 5. A warrant to take physical custody of a missing child (obtainable solely by the State Children’s Advocate) under NRS 432.207.

Each type of order applies to its own unique legal context, and each has its own unique conditions precedent for its implementation. There simply is no such thing as a generic custody enforcement order, and practitioners must by savvy to the scope, requirements, and limitations of each remedy.

Orders under NRS Chapter 125

The best-known custody enforcement remedy, and the most misunderstood, is the “pick up order” issued under NRS 125.470(1) and (2). These orders have an extremely limited reach, and their reputation as a panacea for a missing child recovery is undeserved. Pick up orders are expressly limited to issuance in cases already in existence under Chapter 125. They do not, therefore, constitute a generic, stand-alone remedy. Secondly, such orders are valid only as to parties in the Chapter 125 litigation over whom the court has attained jurisdiction, and have no effect as to third parties.

Third, despite the statutory language regarding police assistance in NRS 125.470(2), police agencies will generally not formally “enforce” pick up orders through the use of coercive force. Rather, when requested to assist, police will typically engage in what is informally referred to as a civil stand-by interaction, which is a form of consensual encounter under the Fourth Amendment because their purpose is simply to keep the peace. This limited encounter is utilized for several reasons. Because the orders are civil in nature, no police investigation has been completed in the case. Police agencies across the country have successfully been sued for “wrongful recoveries” under various Fourth Amendment and due process theories, and police departments are careful to avoid the formal enforcement of civil orders, either pick up orders or custody orders, whose underlying legal validity has not been investigated and determined.

“Custody orders” take many forms: temporary and permanent standard custody orders, Temporary Protective Orders (TPOs) and Extended Orders of Protection (EOPs) against domestic violence, orders for the protection of abused children under Chapter 432B, guardianship orders, writs of attachment, and others. See NRS 125A.045. Not infrequently, pick up orders are issued to enforce a custody order that is no longer valid, or one that conflicts with another order issued in a different case. In some cases, parents have been known, either innocently or fraudulently, to seek enforcement of an order that has been vacated or superseded by a new order and is no longer legally valid. For all of these reasons, the police will avoid enforcing a civil order whose validity has not been investigated and established.

Another limitation of pick up orders is that they are not compliant with the requirements of the Fourth Amendment. These orders do not, in any case, allow the police to enter any space in which the occupants may have a “reasonable expectation of privacy” under the Fourth Amendment. See Kyllo v. United States, 533 U.S. 27 (2001). None of the constitutional requirements—inter alia, specificity, oath, or probable cause, can be established under the very non-specific language of NRS 125.470.

Orders under NRS Chapter 125A

Article 3 of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), is utilized to enforce out-of-state orders, and contains two enforcement mechanisms: “expedited enforcement” under NRS 125A.495, and a “warrant to take physical custody of a child” under NRS 125A.525. These two remedies have their own unique procedural rules. Thus, navigating the tedious provisions of the UCCJEA can be time-consuming and frustrating. Both of these remedies require the filing of a “petition for enforcement of a child custody determination.” NRS 125A.495(1), 525(1). As such, before filing the enforcement petition, the party seeking enforcement must have already complied with the requirements of “registering” the out-of-state custody order. Notably, it is the court’s responsibility to serve the registration petition, and it is the responding party’s responsibility to file a timely request for a hearing to contest the validity of the registered order. NRS 125A.465(2)-(4). If a hearing is not timely requested, the registered order is “confirmed” summarily as a matter of law. NRS 125A.465(5).

If a hearing is timely requested, the court confirms the registered order unless the respondent establishes one or more of the allowable defenses: (1) the issuing court lacked UCCJEA jurisdiction; (2) the registered order has been vacated, stayed, or modified by a court with UCCJEA jurisdiction; or (3) the respondent was not properly noticed of the issuing court’s proceeding. NRS 125A.465(4). If the registered order is confirmed, when expedited enforcement is sought, the only defenses that can be raised are: (1) the order has been vacated, stayed, or modified by a court with UCCJEA jurisdiction under NRS 125A.495(5)(b); or (2) enforcement of the order would result in endangerment to the child, and that exigent circumstances require the court to exercise temporary emergency jurisdiction under NRS 125A.335. See UCCJEA Drafters’ Comment to Section 310.

By contrast, the UCCJEA’s warrant procedure entails an ex parte procedure with post-deprivation notice. NRS 125A.525(2), (4). However, the warrant procedure is the subject of some controversy due to its potential ambiguity and constitutional shortcomings. It authorizes an ex parte application and recovery procedure in cases where “the child is immediately likely to suffer serious physical harm or to be removed from this state,” and requires a post-deprivation hearing on the next judicial day after the recovery of the child. NRS 125A.525(1)-(2). Although the Due Process Clause of the Fifth Amendment prefers pre-deprivation hearings, in some cases the Due Process Clause allows for the noticed hearing to follow the constitutional deprivation—here the recovery of the child. Boddie v. Connecticut, 401 U.S. 371, 379 (1971)(preference for pre-deprivation hearings); Hudson v. Palmer, 468 U.S. 517, 533 (1984)(allowing post-deprivation hearings ); see also NRS 432B.470.

Finally, as is true with pick up orders, the warrant provisions of NRS 125A.525(3) and (5) likely do not comply with the requirements of the Fourth Amendment. Especially problematic are the provisions in section 5 allowing police to enter into any (unspecified) private property anywhere in the state–a clear constitutional violation.

Warrants under NRS 432.207

Under NRS 432.207, Nevada law provides a remedy, unique in the nation, that resolves the many concerns set forth above, and that meets or exceeds constitutional requirements set forth in the Fourth Amendment for the recovery of an abducted child. The statute requires the undertaking of a due diligence police investigation by the Children’s Advocate into the facts of the abduction, and mandates investigation into potentially mitigating causes for the taking of the child, including domestic violence and child abuse at the hands of the left-behind parent. The statute permits the Children’s Advocate to apply to a family court judge for a warrant to recover a missing or abducted child, and allows the issuance of a Fourth Amendment compliant warrant based on probable cause once all of the constitutional requirements are met. The statute presumes that pre-recovery notice will be given, unless a showing of a risk of flight is made, in which case recovery of the child can precede an immediate post-deprivation hearing. Because the process behind the warrant complies with the Fourth Amendment, the warrant may lawfully permit the police to enter private property, without consent, where the child is being detained. The requirement of a due diligence investigation satisfies the concerns of the police that an independent investigation has been completed by a detached and uninterested police agency, rather than an interested party to the custody case.

Conclusion

In the final analysis, it is imperative in any missing child case that practitioners clearly define the remedy they are seeking, and strive to fulfill all of the unique procedural requirements to ensure the issuance of an enforceable order, while remaining cognizant of the scope and limitations of each.

Victor-Hugo Schulze, II, has been a Senior Deputy Attorney General for 20 years, and has served as the Nevada State Advocate for Missing and Exploited Children and the Director of the Nevada Missing Children’s Clearinghouse for 10 years. He is a 26 year criminal prosecutor who prosecutes parental and non-stranger abductions in Clark County, and teaches constitutional law in the Criminal Justice Department at UNLV.

Kristina M. Janusz has been licensed to practice law in Nevada since 2008 and in Illinois since 2009. Since 2008 she has served as the Law Clerk to the Honorable Bryce C. Duckworth, Family Division of the Eighth Judicial District Court of Nevada. She has been an invited speaker at the Ely Conference on Family Law to present on custody jurisdiction issues, has served on numerous family law improvement committees, edited the 2013 edition of the Nevada Family Law Practice Manual, and has volunteered as a Truancy Diversion Program Judge in Clark County.


Homa Sayyar Woodrum, Esq.
Homa Sayyar Woodrum, Esq.

Warning Signs of Client Exploitation: Practice Tips for Attorneys

By Homa Sayyar Woodrum, Esq.

Even in transactional work, attorneys use the phrase “relationship,” not “transaction” to describe the attorney-client dynamic. In the fields of elder, estate, and guardianship law, the source of client direction is not always clear and the harm that a lawyer can facilitate is reason for caution. Wills, trusts, powers of attorney, and even guardianships are readily drafted by well-meaning attorneys, but are not always the protective constructs they should be.

Drafting a will that comports with Nevada law is a relatively simple task. But, what about the contents of that will? What of the person who brought the testator to the law firm and sat with them in a consultation? Also, banks time and time again do not seek the required documentation of incapacity under terms for powers of attorney, so counseling clients of these risks is crucial for appropriate advocacy.

What follows is a breakdown of the warning signs attorneys should be aware of so that they do not unwittingly assist in the unjust enrichment of exploiters. Attorneys can help remember this by using the mnemonic device to “Follow the M.O.N.E.Y.” While there are never guarantees, even pausing to reflect on the nature of work being performed and the dynamics of a given client relationship can make all the difference.

Money

Most retainer agreements have a provision reminding a client that, even when an attorney’s fees are being paid by another, the paying party doesn’t have the right to direct a case. Simple enough. A cautious attorney should ask why Jane Doe is offering funds and whether it means she has substantial access to John Smith’s accounts or if a trustee is seeking representation to defend claims that they have breached fiduciary obligations to the settlor, whether the trustee is paying for legal fees with funds from the settlor’s accounts.

An attorney should never turn a blind eye to the method of payment for legal fees or advise a client to tap into the very account that is accused of being misused to mount a defense. If the capacity of one’s client is under scrutiny, an attorney should seek court authorization for appointment and payment instead of letting them sign checks for legal fees paid to the attorney.

Obligations

Attorneys have a duty of loyalty to their clients spelled out specifically in conflict and confidentiality provisions of the rules of professional conduct. Rules relating to those acting as an intermediary use language to require looking at the best interests of a client. For example, NRPC 1.14 encourages lawyers to, “as far as reasonably possible,” keep a typical attorney-client relationship with the client, but shift those obligations when there is reasonable belief of diminished capacity. The lawyer in such a situation needs to weigh protective actions for the benefit of their client, including those that may compromise confidentiality and cause conflicts.

Obligations to a client include assisting them in scrutinizing those they are seeking to nominate as fiduciaries for their affairs, which is a variant of informed consent, if you will. A lawyer should speak to the client about the skillset of a proposed nominee. After all, if legal practice was merely filling in blanks in a form, people wouldn’t need attorneys.

Narrative

Attorneys must ask questions and get to know the client’s story. An attorney should not view a client’s requests or case in a vacuum. A common occurrence in exploitation cases is the last minute estate plan change, such as a will that is suddenly modified to benefit a “long-time friend” who turns out to have come into the client’s life mere weeks prior. An attorney responsible for drafting amended estate planning documents that opens an estate up to an exploiter clearly has not probed into the connection or relationship between their client and the person arranging the appointment. In one case, the alleged exploiter (who fled the country once their actions were investigated) had only met the incapacitated individual a few weeks prior but represented to a law firm that they were longtime friends.
Not only is meeting a client alone a must, an attorney should make sure that he or she conducts substantive client meetings instead of support staff. Often, however, exploitation reporters do not originate in law offices, but in banks where tellers have seen customers on multiple occasions and notice changed behaviors.

Earmarks

Changed beneficiary designations are within the rights of a client to effectuate, but can be indicative of problems at home. Earmarks that are detrimental to the client can also be an indication, especially ones that would leave them unable to live out their years as they would hope. Home healthcare, for example, is costly, but for many it is their wish to live in the comfort of their home versus a skilled nursing facility.

A person can lack capacity in some areas but not others, so discretion and sensitivity are also important to consider. Testamentary capacity to change or create a will often holds up even when contractual capacity for a trust amendment may not. Clients also need to be aware that beneficiaries who wear other hats, such as trustees, may make decisions to preserve the estate for inheritance and not for comfort during the life of the client.

Years

Protecting incapacitated individuals is often a race against time. The degenerative conditions from which a client may suffer outpace calendar call dates. The expenses of care make deciding to pursue recovery a major judgment call. In one case, an elderly veteran had lost his wife of several decades, married a caregiver, and had an attorney amend his estate plan for the benefit of his putative wife in just a matter of weeks. A lifetime of hard work and service did not ensure the comfort of his final months because his new wife had his trust and will amended to her own benefit and then skipped town.

Often, real property conveyance is a red flag that may be out of the control of an attorney, but it would do an attorney well to be cautious about helping with transfers of property that could leave a client homeless or without use of their retirement for their own benefit. Most of all, an attorney must be wary of litigation-style tactics that would delay resolution of a case. By all means, an attorney should advocate zealously, but be careful of opposing counsel who try to hint that the simplest case resolution would be to wait for an adult ward to pass away.

Also, pursuing a client’s best interests

The short-term benefit of payment to draft a will or trust amendment could have lasting and detrimental effects on a client’s life. Civil (and criminal) remedies to lock the barn door once the horse has bolted are unlikely, as a practical matter, to mitigate the harm to a client in an exploitative relationship. Many of the recent cases involving reports of exploitation have arisen after another attorney’s office has made seemingly innocent estate plan changes that are ultimately revealed to have been directed by exploiters.

This type of practice does offer its bright moments as well. I have seen more than one attorney take personal and sincere interest in their client. One lawyer, for example, made regular personal visits to lend a sympathetic ear to a ward. Another attorney took on representation in a culturally-sensitive way that put a ward at ease so that appropriate services could be put in place.

There are always opportunities for attorneys to be a positive, protective force for clients as individuals.

Homa Sayyar Woodrum Esq.’s practice at Woodrum Law LLC  includes adult guardianship and exploitation cases. She is also a founding contributor for The Allergy Law Project.


Jason P. Stoffel, Esq.
Jason P. Stoffel, Esq.

Get It Up Front: Alternative Fee Structures

By Jason P. Stoffel, Esq.

There are many ways astute family law practitioners can get paid for their work. Most practitioners know it is standard business practice to get a signed retainer agreement before any legal work is done that identifies the fees, how the client will be billed for legal work, the purpose and scope of representation, etc. The last thing any attorney would want to do is explain his conduct and how it was agreed upon over a handshake.

Pro bono/“low” bono

Pro bono is important and there are many great local pro bono providers in the state of Nevada. So long as there is a legal basis, just because a case is done for free, an attorney is not prevented from asking the other side to pay for legal fees reasonably incurred in the scope of legal representation. See Miller v. Wilfong, 121 Nev. 619, 119 P.3d 727 (2005). There obviously is no expectation of payment if it is agreed from the beginning of the matter to take a case for free. Also, the American Bar Association recommends 20 hours of no-cost legal services to individuals of lesser means. But when taking on a pro bono case, always ask for fees!

There are also what I would call “low” bono or reduced fee cases. These are perhaps a referral from a previous client or, as is done in my office, cases that are given heavily-discounted military rates. For these types of cases, get a fee and either perform at a fixed rate or an hourly rate that will be paid out of a retainer deposited up front.

Contingency

Domestic relations cases are generally the one area of legal practice where it is against public policy to have the attorney get a percentage of the client recovery. There is a sound reason for this; it could actually encourage divorce if days before a trial or when the decree is about to be entered, the parties perhaps want to reconcile. Obviously, the attorney would want the divorce to be completed or else they would not get paid.

One main exception to the contingency prohibition is on “omitted asset” cases in which the practitioner opens an independent action under the holding in Amie v. Amie, 106 Nev 541, 796 P.2d 233 (1990). Then, a percentage of the recovery can be paid to the attorney for representation. The parties are already divorced in that case, so there are no ethical issues. This situation is rare, but needs to be done when there is no NRCP 60 relief available, which would be more than six months since the entry of the decree or final order.

Flat fee

Flat fees always have the element of risk. It means there is one flat or “fixed” fee for work done on a case, generally to the completion of the case. This method is usually common when a client retains counsel for an uncontested divorce or custody case or the remainder of a contested case. In my experience, at least for the contested custody or divorce case, accepting the remainder of a case on a flat or fixed fee is usually done after the first hearing or two when it is known that a trial date has been set. The length of the trial setting must be known to set the appropriate fee. I have heard too many horror stories that an attorney agrees to basically “handle a matter” for a fee that is too low, but gets the case completed through a trial. This is a bad gamble because an attorney can end up getting a fixed fee for basically an unlimited amount of work to complete the case. Under this arrangement, experience is the best teacher, so an attorney that gets paid for task A should not be forced to work on tasks A, B, C, etc., for the task A fee. The Thirteenth Amendment of the United States Constitution is supposed to prevent slavery and involuntary servitude!

Unbundled

The unbundled method of payment has become more common with the family court. There is a special domestic relations rule on this subject, which is EDCR 5.28. This is basically a “limited service representation” or, essentially, “attorney for the day.” This arrangement typically is just one court appearance. At the conclusion of the task, the attorney files with the court a notice of representation with a copy of the retainer agreement (you did one of those, right?). This is the best way to get in, out, done, and paid on a case.

Hourly rate

This is the most common way family law practitioners get paid. The attorney should get a retainer of a certain sum up front and then charge an hourly rate against the total amount paid as a retainer. For family law, the rates generally range from $250 to $600 an hour, depending on whether the attorney has decades of experience or has just hung a shingle fresh out of law school. Smart attorneys will do regular billing cycles once or twice per month and then, when the retainer is almost depleted (but hopefully it never gets depleted), additional funds must be paid on the account. Some firms will have “evergreen” clauses, so if the client trust funds fall below a certain level, either the client adds more money on the account or the attorney withdraws and simply returns unearned money to the client. This would prevent suing a client for unpaid legal fees and possibly a fee dispute with the State Bar of Nevada. See Argentena Consol. Mining Co. v. Jolley Urga, 125 Nev. 527, 216 P.3d 779 (2009).

Attorneys should never work “on credit” so that there is nothing left to transfer to the operating account. Attorneys work hard enough to help existing clients and have every expectation of being paid. To say it another way, work smarter, not harder.

The take away message is to get a retainer fee for legal services upon hiring the firm. The check is not in the mail, you likely are not getting that tax refund that is coming any day now for the client to give you, and a third party or surety is not likely to come and sign the retainer agreement to guarantee payment. Clients will lie. Generally, 90 percent of your problems with clients come from ten percent of your clients, which is why I try to fire my worst client each month. It works!

Jason P. Stoffel, Esq. has been a Nevada licensed attorney since 2004 and has practiced almost exclusively in family law since that time. He has been a Partner of Roberts Stoffel Family Law Group since 2009 and can be reached at jason@lvfamilylaw.com.