Friday, July 23, 2021
The Nevada Supreme Court granted a writ of prohibition and concluded that its Disciplinary Board lacked jurisdiction
Petitioners are the named partners of Weitz & Luxenberg, P.C., a New York based law firm. Between January 16 and August 20, 2017, petitioners firm contracted with Consumer Attorney Marketing Group (CAMG) to place an advertisement on national cable television that offered the firm's legal services to parties who suffered injuries from defective hernia mesh products. Petitioners' firm provided the screening staff at CAMG's call center with criteria to use to identify potential clients from those who called in response to the advertisement.
Jonnie Carruth, a Nevada resident who suffered injuries he alleged occurred from a hernia mesh surgery, responded to petitioners' firm's advertisement. CAMG sent him a client intake package, which included a retainer agreement, questionnaire, and medical release forms, with instructions to immediately sign and return them. Without any phone or in person contact from petitioners or an attorney at their firm to explain the retainer agreement, Carruth signed the agreement on August 17, 2017, authorizing the firm to investigate "damages arising from personal injuries sustained by the Client through the wrongful conduct of defendant(s) involved in the manufacture, sale and distribution of [hernia mesh] used during a surgical procedure." The agreement explicitly stated that "the Law Firm is NOT being engaged to evaluate or file any medical malpractice claims." On October 2, 2018, the firm sent Carruth written notice, stating that his claim did not meet the criteria for a products liability case against the manufacturer and declining representation on that basis.
Carruth filed a grievance with the State bar of Nevada because by the time petitioners firm sent notice declining representation, the statute of limitations had expired on any medical malpractice claim he may have had.
A disciplinary board screening panel imposed a reprimand. Respondents appealed and moved to dismiss the charges.
In opposing petitioners motion to dismiss, the State Bar presented evidence of petitioners' firm's contacts with Nevada but did not provide any evidence that petitioners themselves crafted the national advertisement, directed it to be aired in Nevada, established the procedures for evaluating hernia mesh claims or communicating with potential clients, or were otherwise involved in Carruth's case. Accordingly, we conclude that the State Bar did not present prima facie evidence that Nevada has personal jurisdiction over petitioners for purposes of this attorney discipline matter.
The case is PERRY WEITZ, ESQ., NEW YORK BAR NO. 1961002; AND ARTHUR LUXENBERG, ESQ., NEW YORK BAR NO. 2008209, Petitioners, vs. RUSSELL E. MARSH, ESQ., VICE CHAIR, SOUTHERN NEVADA DISCIPLINARY BOARD, Respondent, and STATE BAR OF NEVADA, Real Party in Interest. (Mike Frisch)