Karen Smyth to Discuss “EEOC & LGBT Employment Matters: Accommodations, Harassment, Title VII & Impact of Obergefell” at the Second Annual Employment Practices Liability Insurance ExecuSummit

cropped-Karen_Smyth_headshotKaren Smyth, a Partner at Lipson, Neilson, Cole, Seltzer, Garin, P.C. will be featured on a panel of leading industry professionals discussing “EEOC & LGBT Employment Matters: Accommodations, Harassment, Title VII &+ Impact of Obergefell” at the second annual Employment Practices Liability Insurance ExecuSummit held in Chicago at the Dana Hotel on April 12-13, 2016.

This summit will provide attendees a unique opportunity to learn from distinguished presenters who will be discussing current issues and trends impacting Employment Practices Liability underwriting and claims. Attendees will include insurance industry executives, corporate counsel and attorneys from across the USA.

Karen has considerable experience in the defense of professional liability cases, including legal malpractice, medical malpractice, and employment practices litigation. She is a licensed attorney in Michigan and New York, a graduate of the Litigation Management Institute and the President of the Michigan Chapter of the Claims & Litigation Management Alliance.

About Lipson Neilson
Founded in 1985, Lipson, Neilson, Cole, Seltzer, Garin, P.C. has offices in Bloomfield Hills, Grand Rapids, Las Vegas and Phoenix. The firm is widely known for its professional liability lines, offering invaluable insight and experience to its clients across all industries. The firm represents clients in throughout the USA and around the world. You can learn more at www.lipsonneilson.com.

Contact Karen Smyth
Phone: 248-593-5000
Email: ksmyth@lipsonneilson.com

Sandra Glazier Featured Speaker at 35th Annual Kansas City Estate Planning Symposium

Sandra Glazier croppedLipson Neilson Shareholder Sandra Glazier, co-author of “What Every Estate Planner Should Know About Undue Influence: Recognizing It, Insulating Against It…and Litigating It”, along with co-authoring attorneys Thomas Dixon and Thomas Sweeney, will be featured speakers on the topics discussed in this paper during the 35th Annual Kansas City Estate Planning Symposium to be held on April 21 – 22, 2016.

Glazier, Dixon and Sweeney will speak about identifying and addressing issues relating to vulnerabilities which could subject an individual to undue influence. Because undue influence is generally a process, as opposed to a single event, its growing prevalence as a basis for litigation which attacks the validity of estate planning documents, makes it of considerable importance to professionals involved in the estate planning process and attorneys who litigate such issues.

This symposium attracts nationally renowned speakers and is presented in cooperation by the Estate Planning Society of Kansas, the Financial Planning Association of Greater Kansas City, and the University of Missouri-Kansas City School of Law. Attendees of this conference include Estate Planning attorneys, Business and Tax attorneys, CPAs, Trust Officers, Planned Giving Professionals, Certified Financial Planners, and Life Underwriters.

An attorney for more than 30 years, Sandra Glazier is well-known for her expertise and successful track record in Probate Litigation, Estate Planning and Administration, and Family Law. Sandra is the current Chair of the Oakland County Bar Association’s Probate, Estate & Trust Committee. To learn more about Sandra, and the Lipson Neilson law firm, please visit www.lipsonneilson.com You can email Sandra D. Glazier at sglazier@lipsonneilson.com.

Joseph Garin to Speak at the 2016 CLM Annual Conference

Joseph Garin high resJoseph Garin, Attorney, Lipson, Neilson, Cole, Seltzer & Garin, P.C. will speak at the CLM Annual Conference, which will be held at the Hilton Orlando Bonnet Creek, April 6-8.  His session is titled “Law Firm Dissolutions, Receivers, Bankruptcy and Claims.”

Joseph Garin is a partner in the firm of Lipson, Neilson, Cole, Seltzer & Garin, P.C. with offices in Nevada, Arizona and Michigan. He is consulted nationally on the defense of professional liability claims, ethics, employment, insurance coverage disputes, director and officer claims, and risk management. He is also experienced in complex and commercial litigation matters, including cases involving breach of contract and unfair business practices.

Mr. Garin earned a B.G.S. degree from the University of Michigan and received his J.D. degree cum laude from Michigan State University-Detroit College of Law, where he was a member of the Law Review. He is a member of the State Bar of Michigan, the State Bar of Illinois, the State Bar of Nevada and the State Bar of Colorado. He is admitted before the United States District Court for the Eastern and Western District of Michigan, the District of Nevada, as well as in the Sixth and Ninth Circuit Court of Appeals.

Mr. Garin serves as the Chair to the State Bar of Nevada Standing Committee on Professional Responsibility and Ethics and is a member of the Professional Liability Committee for the Claims and Litigation Management Alliance.

About Lipson Neilson
Founded in 1985, Lipson, Neilson, Cole, Seltzer, Garin, P.C. has offices in Las Vegas, Phoenix, Bloomfield Hills and Grand Rapids. The firm is widely known for its excellence in the professional liability lines, offering invaluable insight and experience to its clients across all industries. The firm represents clients in Nevada, throughout the USA and around the world. You can learn more at www.lipsonneilson.com.

About the CLM
The Claims and Litigation Management Alliance (CLM) promotes and furthers the highest standards of claims and litigation management and brings together the thought leaders in both industries. CLM’s Members and Fellows include risk and litigation managers, insurance and claims professionals, corporate counsel, outside counsel and third party vendors. The CLM sponsors educational programs, provides resources and fosters communication among all in the industry. To learn more about the CLM, please visit www.theclm.org.



Staying Out of CFPB Jail (Part 1)

Most of us have heard of the Consumer Financial Protection Bureau(CFPB) and that it is not only coming to town…it is already here. In turn, now is the time for all professionals in the real estate field to learn how to stay out of CFPB jail! This is the first of a three part series on the CFPB and its enforcement powers.

The CFPB is an independent agency of the United States government responsible for consumer protection in the financial sector. In 2010, the Dodd–Frank Wall Street Reform and Consumer Protection Act created the CFPB as a response to the financial crisis of 2007–08 and the subsequent Great Recession.

Included within its jurisdiction is enforcement of the Real Estate Settlement Procedures Act (RESPA). Specifically, Section of 8 of RESPA and its prohibition against “kickbacks” among settlement service providers.

Real Estate Agents are settlement service providers, as are lenders, title and escrow companies, appraisers, inspectors and home warranty companies. Significantly, RESPA has been in place since 1974 and, hence, RESPA violations have been actionable for over four decades. Yet, because the U.S. Department of Housing and Urban Development was charged with RESPA compliance and had limited resources, enforcement has been sparse. That will and has changed with the CFPB.

The CFPB, with offices in Washington D.C. and Phoenix, Arizona, is well staffed and incredibly well funded. It also generates revenue by and through assessing fines and penalties for non-compliance with the laws under its jurisdiction. Those fines can range from $5,000 per violation up to $1,000,000. This is serious business.

So, what should real estate licensees be mindful of?

  • Co-Marketing among settlement service providers (Flyers and other promotional materials). In the past, it was not uncommon for industry partners, such as lenders or title companies, to provide a licensee with marketing materials (say a flyer, or customized pens or calendars or the like) that included an agent’s logo, information and/or picture on it. They did so without charging the licensee the cost of producing the marketing pieces and to bridge a relationship. That is not permitted. Indeed, if another service provider offers to do a specialized marketing piece for a licensee, the licensee must pay the fair market value for the piece (pro rata). For example, if 75% of a flyer is dedicated to the licensee’s business and 25% to a title company, the agent/licensee must pay for 75% of the cost of producing it.
  • Co-Marketing on Lead Sites and other Real Estate Sites (Zillow or Trulia). It is likewise not uncommon for settlement service providers to market together on these types of lead-generating websites. And, often times one of the providers pays the entire cost for both. That should not occur. Again, the providers should pay their proportionate cost of the marketing.
  • Providing Food and Refreshments at Events. A settlement service provider (e.g. a title company) sometimes offers to furnish food and refreshments for an event hosted by another provider (e.g. a real estate brokerage). This often occurs at team meetings, office meetings, and home tours. By providing something of value, the CFPB could consider this a kickback. One way to mitigate this, and possibly avoid a RESPA infraction, is to make certain that the settlement service provider who is furnishing the food and drink is present at the event and afforded an opportunity to actually market their services. So, in essence, in exchange for paying for the food and beverages, the title company is able to meet with agents, a team, consumers or others and advertise its services.
  • Template Pieces. There seems to be a split in the industry as to whether “template-type marketing pieces” are RESPA compliant. For instance, title companies often create listing books or buyer brochures that they provide to real estate licensees to give to buyers and sellers the licensees are working with. The books/packets are consumer driven and are largely informational as to the real estate market, listing information, etc. and basically a promotional piece for the title company. However, the title companies will often personalize the template to include a licensee’s name, brokerage, phone number and email on the cover. Some in the industry believe that because these books/packets/brochures are not created specifically for an individual licensee and/or to actually market the licensee, providing them for free is not a kickback. Others take the position it is still something of value and the cost of production should be pro-rated.
  • Event Tickets, Meals and Entertainment. Marketing 101: get to know your referral partners. An effective means of marketing has always been taking a potential referral source to lunch, to a game or event. Can those tickets be considered something of value to trigger a RESPA violation? Well, it is almost certainly a RESPA violation if a real estate licensee accepts tickets from another provider (lender for instance) and that provider does not join the licensee at the event. If they go together, then, again, it could be argued that there is value being exchanged – e.g. an opportunity to market and grow the relationship.

Be mindful of two things in reviewing the foregoing. First, this a general overview of RESPA based solely on current trends. The CFPB is just now ramping up and we will receive more guidance going forward as to what it considers a RESPA violation. Second, a licensee’s own state law may address, limit and/or govern some of these issues as well.

In our part II of this series, we will explore Marketing Service Agreements and CFPB compliance.

About the Author
rsz_1rsz_1dax_watsonDax Watson is the Managing Partner of the Phoenix office of Lipson, Neilson, Cole, Seltzer, Garin, P.C. He has extensive litigation and professional liability defense experience, especially in the field of real estate. He has appeared and represented clients in every county in Arizona and has an extensive trial practice, and he routinely represents clients in regulatory matters before the Arizona Department of Real Estate and other State agencies. Dax has been appointed by the Maricopa County Superior Court to act as a Judge Pro Tempore. In this capacity, he conducts Court-appointed settlement conferences as a Settlement Judge and also serves as a “fill-in” Judge on civil matters and short trials and likewise conducts private mediations. In addition to his legal practice, Dax is approved to teach legal issues, agency and disclosure, and property management by the Arizona Department of Real Estate. He regularly teaches risk-reduction classes to, and seminars for, real estate Brokers throughout Arizona.

You can contact Dax by calling 602-626-8888, or send an email to DWatson@lipsonneilson.com.

How Do I Stay Out of the Lawyer’s Office

Article written by Dax Watson provides tips for Real Estate Agents. This article is on page 3 of the December 2015 issue of WestWords, published by WestUSA Realty.

Article in West Words Dec 2015

2015 Michigan Super Lawyers Includes Five Lipson Neilson Attorneys

Lipson Neilson Super LawyersFive attorneys from the firm’s Bloomfield Hills office have been selected to the 2015 Michigan Super Lawyers and Rising Stars lists. Jeffrey Neilson, Steven Cole, Phillip Seltzer and Mary T. Schmitt Smith are “Michigan Super Lawyers”, and Starr Kincaid is a “Michigan Rising Star”. Each year, no more than five percent of lawyers in the state are selected as Super Lawyers, and no more 2.5 percent are selected to the Rising Stars list.

Jeffrey T. Neilson has been selected as a Michigan Super Lawyer for the ninth consecutive year. One of the firm’s founders and a shareholder, Jeffrey is known nationally for his expertise in probate litigation, business counseling, estate planning and domestic and family law liability. In 2014, Jeffrey was reappointed by the Michigan Supreme Court to serve on Michigan’s Attorney Grievance Committee (AGC); this appointment is through October 1, 2017.

Steven R. Cole has been selected as a Michigan Super Lawyer for the ninth consecutive year. A founding shareholder, Steven has a diverse practice focusing on real estate, business and corporate matters, and estate planning. Steven has previously served as an adjunct instructor of taxation at area business colleges and has taught continuing education courses approved by the Michigan Insurance Bureau for licensed insurance professionals. He has conducted numerous seminars for the Michigan Association of Certified Public Accountants, and has served on the boards of directors of public charities.

Phillip E. Seltzer has been selected as a Michigan Super Lawyer for the fifth consecutive year. A shareholder of the firm, Phillip is a specialist in the areas of legal malpractice, architect and design professional malpractice, accounting malpractice, real estate broker errors and omissions, directors’ and officers’ liability claims and insurance coverage disputes. During 2104, a complex legal malpractice case, arising out of a medical device product liability matter that was successfully defended and dismissed through the efforts of Phillip Seltzer and Starr Kincaid has been described by Michigan Lawyers Weekly as one of the “Most Important Opinions of 2014″.

Mary T. Schmitt Smith has been selected as a Michigan Super Lawyer for the ninth consecutive year. She advises clients about estate planning, tax and probate options, with a distinct focus on drafting and administration of Special Needs Trusts. Mary is Michigan’s first Certified Elder Law Attorney and is AV-Rated by Martindale Hubbell for the past 16 years. She has served on the Board of Directors of the National Academy of Elder Law Attorneys, and is a charter member of the Special Needs Alliance, a national network of lawyers dedicated to Disability and Public Benefits Law.

Starr M. Kincaid has been selected as a Michigan Super Lawyers Rising Star for the third consecutive year. Starr devotes a majority of her practice to the defense of professional liability and employment practices claims. Starr is a recognized for her work in the areas of professional liability law and employment litigation and is often invited to speak at national conferences conducted by leading industry associations. During 2014, a complex legal malpractice case, arising out of a medical device product liability matter that was successfully defended and dismissed through the efforts of Phillip Seltzer and Starr Kincaid has been described by Michigan Lawyers Weekly as one of the “Most Important Opinions of 2014″.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multi-phase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

About Lipson, Neilson, Cole, Seltzer, Garin, P.C.

2015 Marks the 30th anniversary of the Lipson Neilson law firm that has grown from three founding members to thirty attorneys located in three states. The firm has also expanded its expertise from its core business, tax and litigation practice areas during its early days, to currently offering a full range of practice areas including complex business tort litigation, professional liability defense, employment law and litigation, international law, real estate, probate litigation, family law and estate planning. Lipson Neilson attorneys represent and provide counsel to clients around the country, and around the world. To learn more about the firm, please visit www.lipsonneilson.com or call the Bloomfield Hills office at (248) 593-5000.

Can Insurance Defense Counsel ‘Serve Two Masters’?

If you are a DRI member and are reading this, you’re probably a defense lawyer. And, as a defense lawyer, you probably receive the majority of your work from insurance carriers. The relationship between the insurer, insured, and defense attorney is a complicated one and is known by many names: the triad, the triadic or tripartite relationship, the eternal triangle, the Bermuda triangle—and even the eternal conundrum—to name just a few. This relationship has been called “deeply and unavoidably vexing” and understood to create problems that would “tax Socrates.” Silver, C., “Does the Insurance Defense Counsel Represent the Company or the Insured?” 72 Tex L. Rev. 1583, 1587 (1999); Harland v. Foster, 528 So. 2d 255, 273 (Miss. 1988).

Of course, this “deeply and unavoidably vexing” situation is rooted in the notion that “insurance defense counsel” represent and have obligations to two different clients. And, because of this, there is an “inevitable tension and a potential that the attorney’s representation of one may be rendered less effective because of his representation of the other.” Spindle v. Chubb/Pacific Indemnity Group, 152 Cal. Rptr. 776, 780-81 (Cal. Ct. App. 1979). This “inevitable tension” arises because most defense attorneys have established, ongoing relationships with the insurer that hires them, not the insured they are hired to represent.

Indeed, a large chunk of many practices (and marketing budgets) are devoted to creating and maintaining relationships with insurance carriers, and their adjusters and claims attorneys, in an effort to secure future business. On the other hand, very few defense attorneys enjoy similar relationships with the insureds – and therein lies the problem. It is the “strong and perpetual economic linkage between insurers and their regular counsel that most concerns courts and insureds.” Richmond, Douglas R., Lost in the Eternal Triangle of Insurance Defense Ethics, 9 Georgetown Journal of Legal Ethics 475, 482 (1996).

With that said, where should your loyalties lie and who is your actual client? Is it the insured who is the named defendant and is “represented” in court? Or is it the insurer who, more often than not, chose the attorney, pays the law firm, supervises the litigation, and has, by virtue of the insurance policy, the right to settle the case, even over the objections of the insured? Stempel, Jeffrey W., The Relationship Between Defense Counsel, Policyholders, and Insurers: Nevada Rides Yellow Cab Toward “Two-Client” Model of Tripartite Relationship. Are Cumis Counsel and Malpractice Claims by Insurers Next? (2007). Scholarly Works. Paper 183. The ABA Model Rules (or state equivalent) and the Restatement (Third) of the Law Governing Lawyers (“Restatement”) govern the ethical duties of attorneys in these relationships. Counsel should also consult individual state professional responsibility rules (most states have adopted the ABA Model Rules) and state ethics opinions.

Like most questions in the law, the answer varies by forum. The majority rule is that in the absence of a conflict, both the insurer and insured are considered clients of the insurance defense firm. See Nevada Yellow Cab Corporation v. The Eighth Judicial District Court 152 P.3d 737 (Nev. 2007). Obviously, this article is not a comprehensive review of all states’ positions on this matter, and not all states follow the majority rule, so you should refer to the appropriate state-specific rules and case law to be sure of your obligations.

The prominent two-client model provides that your “primary” client is the insured and the insurer is a “secondary client.” This means that if an insurer and insured’s interests conflict, you “may not betray the interests of the policyholder in favor of the insurer, no matter how steady a stream of business the insurer may provide.” Id. Practically, for example, in a status update to the carrier, you may not purposefully divulge an insured’s ethically privileged information that would cause the insurer to deny coverage. The conflict in this example is your duty of confidentiality owed to your client versus the carrier’s interest in limiting its expenditures related to your client’s policy. We all deal with small conflicts like this on a regular basis.

Larger conflicts of interests, however, are less likely but create particularly thorny situations for defense counsel. For instance, a carrier may choose to furnish a legal defense while at the same time reserving its right to deny coverage related to any judgments against its insured. The insurer and policy holder’s interests become adverse because the insured will aim to preserve indemnity whereas the insurer will work to establish a basis for non-coverage, and you will find yourself stuck in the middle. Various states, including California, Illinois, Texas, and New York, agree that a carrier’s reservation of rights can create a conflict of interest for the carrier retained defense counsel. Effectively, those states conclude that an insured’s “legal right to a conflict-free defense supersedes the carrier’s contractual right to select its panel counsel and control the litigation decisions.” Bolender, Jeffrey, Will Nevada Adopt the Cumis Requirement: History, Analysis, and Conflict Resolution (2013). Many forums hold that while the issuance of a reservation of rights letter can create a conflict of interest, it is not absolute and will be considered on a case by case basis.

The question then becomes whether the client can (or will) consent to representation by retained defense counsel despite the potential conflict, or whether the attorney must withdraw from representation of one or both clients. Sometimes the conflicting interests in these situations makes ethical representation of both clients difficult, if not impossible. Some of the unavoidable ethical considerations involve including retained counsel’s ability to manipulate trial strategy to benefit one client to the detriment of the other and retained counsel’s access to potentially damaging information through confidential communication with each client.

So, how are you supposed to know if you are presented with a disqualifying conflict of interest? Relevant case law reveals that only specific types of issues—often times called “steerable” issues—create a disqualifying conflict of interest for carrier retained defense counsel. Generally, steerable issues are malleable, fact-intensive questions. A common steerable issue example is when a carrier issues a reservation of rights based on a mental basis, such as an exclusion for intentionally caused losses. This is because “the same universe of facts can be used to demonstrate either intentional conduct or accidental conduct. Thus, the issue is relatively steerable, because a good lawyer could employ the same “bucket” of facts to show the policyholder’s liability-producing conduct was intentional (not covered) or accidental (covered).” Id.

Regardless, if a carrier issues a reservation of rights letter, at the very least, it should send up a red flag prompting you to explore the conflict of interest issue, because at the end of the day, no man can serve two masters.

Jessica A. Green is an attorney at Lipson, Neilson, Cole, Seltzer & Garin, P.C. working in the firm’s Las Vegas, Nevada office. Her practice focuses primarily on professional liability defense, employment law, bad faith insurance defense, and commercial litigation. Ms. Green has also practiced in the areas of construction law and real estate. She can be reached at JGreen@lipsonneilson.com.

Joseph Hainline is an attorney at Carr Maloney P.C. in Washington, D.C. He concentrates his practice in general liability, professional liability, and premises liability, as well as in complex civil litigation.

This article was published in the June 29, 2015 issue of The Whisper, the DRI’s Newsletter of the Young Lawyers Committee.

Dax Watson Appointed to the Board of Directors for the Valley of the Sun Community Leadership Board

The Valley of the Sun Community Leadership Board (CLB) is the face of the American Diabetes Association (ADA) in Phoenix, Arizona. The CLB shoulders the important responsibility of implementing the ADA’s mission and movement to Stop Diabetes. Working in alignment with the ADA’s Strategic Plan, the CLB works as a team to lead key fundraising, program, advocacy, volunteer and corporate recruitment activities.

Lipson Neilson Attorneys Selected to Chair Oakland County Bar Association Committees

The firm is proud to announce that two of the firm’s attorneys have been selected to Chair committees for the Oakland County Bar Association (OCBA) during the 2015-2016 term that began September 1, 2015:

Both of these committees generally meet monthly between September and May to address issues of interest and importance impacting the respective committee’s area of practice.

This year marks the 30th anniversary of the Lipson Neilson law firm that has grown from three founding members to thirty attorneys located in three states. Since its formation the firm has also expanded its practice areas from business, tax and litigation to a full range of practice areas which now also include international law, real estate, professional liability, probate litigation, family law and estate planning. Lipson Neilson attorneys represent and provide counsel to clients throughout the country and around the world. To learn more about the firm, please visit www.LipsonNeilson.com.

Joe Garin: Featured Speaker at the E & O Insurance ExecuSummit

Joe Garin will be a featured speaker during the 7th Annual E&O Insurance ExecuSummit held during June 18-19, 2013 at the Mohegan Sun Resort & Convention Center in Uncasville, CT. Garin will be part included on a panel of experts that will discuss Professional Firm Dissolutions: Impact on Insurance and Liability. ExecuSummit attendees are insurance professionals in the forefront of the E&O insurance line, monitoring & researching emerging issues and trends.