Thursday, December 29, 2016

A Tale Of Two Attorneys And The Open Range

The Nevada Supreme Court held that a judgment was properly set aside in part due to opposing counsel's misconduct.

The plaintiff was the estate of a man killed when he struck a cow while driving on the open range.

Michael Adams struck respondent Susan Fallini's cow while driving on a portion of highway designated as open range.' Adams died as a result, and Adams' estate (the Estate) sued Fallini for negligence. The Nevada Highway Patrol's accident report indicated that the accident had occurred on open range. Additionally, Adams' family appears to have created a memorial website for Adams prior to the lawsuit, which explained that Adams' accident occurred on open range and opined that open range laws are unjust.

From the Las Vegas Review-Journal in 2014

Fallini was sued in 2007 by the family of California mining geologist Michael Adams, who died in 2005 after his car struck one of the rancher’s cows on state Route 375.

The Fallini’s Twin Springs Ranch is open range, and Nevada law protects open-range ranchers from being sued if their cows are struck by cars.

Adams was also drunk and speeding when he struck the cow, according to police reports, but that didn’t stop his mother from filing a lawsuit against Fallini.

The fact that the accident was on open range was an inconvenient one for the plaintiff.

But the defendant made a poor choice of counsel, who is now disbarred.

We hold the district court did not abuse its discretion in granting Fallini's NRCP 60(b) motion for fraud upon the court. First, the initial judgment in this case would likely not have been obtained but for Fallini's counsel's abandonment of his client and his professional obligations to his client... Standing alone, that might not warrant relief, as the lawyer is the client's agent and the acts and omissions of an agent ordinarily return to the principal who hired the faithless agent, not those who dealt with the agent in his representative capacity. But here, the Estate's counsel seized on that abandonment as an opportunity to create a false record and present that record to the district court as the basis for judgment. Together, these acts and omissions merited relief.

The district court did not abuse its discretion in finding that the Estate's counsel breached his duty of candor to the court. Although counsel may request that the opposing party admit certain facts that counsel already knows or should know the answer to, if the opposing party fails to respond, we hold that counsel may not rely on the deemed admission of a known false fact to achieve a favorable ruling.

One side had a dilatory lawyer who was eventually disbarred; the other an overzealous lawyer who relied on the concession of a falsehood

...counsel violates his duty of candor to the court when counsel: (1) proffers a material fact that he knew or should have known to be false, see generally Sierra Glass & Mirror v. Viking Indus., Inc., 107 Nev. 119, 125-26, 808 P.2d 512, 516 (1991) (providing that counsel committed fraud upon the court "in violation of SCR 172(1)(a) and (d)" when he proffered evidence and omitted pertinent portions of a document to "buttress" his client's argument, and that he "knew or should have known" that the omitted portion was harmful to his client's position)...

We hold that the Estate's counsel's duty of candor required him to refrain from relying on opposing counsel's default admission that the accident did not occur on open range, when he knew or should have known that it was false, and that the district court did not abuse its discretion in finding the Estate's counsel committed a fraud upon the court when he failed to fulfill his duties as an officer of the court with candor.

The trial court order on the judgment was reported in the Pahrump Valley News. 

It should have been an open and shut case. However, Fallini’s first attorney, former Nye County Public Defender Harry Kuehn, failed on multiple occasions to perform the necessary legal work to properly defend Fallini’s interests. In fact, Kuehn’s work on the case was so shoddy that he ignored a request for admissions where Adams’ attorney, Las Vegas lawyer John Aldrich, asked Fallini to admit that the accident did not occur in open range.

By failing to deny that one admission, and then failing to do anything of substance to defend Fallini — the judge in the case first sanctioned Kuehn $1,000, then $5,000, then $500 a day at one point during the case — Aldrich eventually won a $2.5 million summary judgment against Fallini in July 2010.

The Nevada Supreme Court reversed that award in March 2013, lowering it to $1 million and then remanding the case back to [Judge Robert] Lane’s court...

When the judge’s order came in Wednesday, it complimented Aldrich for zealously representing his client while at the same time accusing the attorney of violating the state’s professional rules of conduct...

The trial judge further stated

“This is not to suggest that Mr. Aldrich is an unethical attorney,” the order states.

Still, Fallini’s attorney Hague blasted Aldrich during the July 28 hearing, accusing him of manufacturing evidence and bending the rules to suit his own needs.

“The court took notice that essentially two plus two equals four and then agreed with plaintiff that two plus two equals five as a matter of law. That is not how the system should work,” Hague told the court. “This is the most egregious case of fraud upon the court that I have ever seen.”

Aldrich said he was taken aback by the verbal assault.

“That is difficult to listen to. To stand there and listen to my integrity being questioned over and over by someone who does not know me is very difficult,” Aldrich said.

The attorney at one point asked the entire argument made by Hague be stricken from the record.

Further reportage from the Las Vegas Review-Journal.

If the link to the opinion does not work, try here. The case is Estate of Adams v, Fallini, No. 68033.  (Mike Frisch)

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