November 16, 2015 – The attorneys at Lipson, Neilson, Cole, Seltzer, Garin, P.C. are excited to announce the move to their new location at 5343 N. 16th Street, Suite 140, Phoenix, Arizona 85016. This new location allows the firm to accommodate the growth in number of attorneys and clients since the firm originally opened an office in Phoenix this past March.The Lipson Neilson law firm is well-known for its successful track record in professional liability defense work, and real estate law. With offices in Phoenix, Las Vegas, Grand Rapids, and the firm’s headquarters in Bloomfield Hills, Michigan, the firm is capable to serve clients anywhere in the country. To learn more please visit lipsonneilson.com, or contact Dax Watson, Managing Partner of the Lipson Neilson Phoenix office by calling 602-626-8888 or email to DWatson@lipsonneilson.com.
Five 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.
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.
Michigan and most states prohibit common law marriages, there are a fair amount of unmarried seniors living together who can take steps to protect the rights of their partners.
If you have no spouse, your partner has no legal rights to your estate if you die without a Will or Trust that provides for them. It is not uncommon for those that have children from a prior marriage or relationship to provide the unmarried partner with certain assets or a certain portion of the estate or even the right to live in a property for a period of time (life estate) with the rest passing to the children.
If you want your partner to be able to act for you in financial matters if you become incapacitated, this should be not only addressed in the Trust but also in a financial Durable Power of Attorney. The same is true as it relates to health care decisions if you are unable to make your own decisions. The advantage of being unmarried is long term care costs come into play for your partner, none of your own assets are considered available. The down side of that is that while a spouse can receive a certain portion of a Medicaid applicants assets and income, where an unmarried partner has no such rights. What’s more, transfer of assets between you and your partner can make the transfer ineligible for Medicaid if the transfer is done within five years prior to application. Creating joint assets can cause other unintended tax complications.
To learn more please email Steve Malach at Smalach@lipsonneilson.com
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.
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:
- Sandra Glazier is the Chair of the Probate, Estate and Trust committee.
- David Michael is the Chair of the Real Estate committee.
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.
On July 22, 2015, the Michigan Supreme Court reversed the Court of Appeals and reinstated the decision by the Oakland Circuit Court to grant summary disposition in favor of Lipson Neilson’s client in the case Tyra v Organ Procurement Agency of Michigan (Docket No. 148079). This medical malpractice case decision will affect how medical malpractice cases are handled in Michigan.
Lipson Neilson attorneys Thomas Ludden and Karen Smyth successfully argued, on behalf of the Defendants-Appellants in Tyra, that the Michigan Supreme Court should find that the failure of a plaintiff to abide by the statutorily mandated waiting period prevents them from commencing a medical malpractice lawsuit. As a result, the Supreme Court held that all of the claims by the plaintiff are barred by the statute of limitations.
To learn more, please contact Thomas Ludden at phone 248-593-5000, or email at email@example.com.
Jessica Green was featured on a panel of industry experts discussing “Errors & Omissions Claims Trends” at the ninth annual Errors & Omissions (E&O) Insurance ExecuSummit held in Uncasville, CT during June, 2015. This conference brings together legal and insurance industry professionals from across the country to discuss emerging issues in this very specialized area of insurance, and law.
Jessica has defended many lawyers and law firms throughout the country during her career and is recognized as an emerging leader in Errors and Omissions (E&O), Employment, and Insurance Coverage law. For the second year in a row, Thompson Reuters, the global leader in legal publications, has recognized Ms. Green as a 2015 Rising Star in her field. She is a national liaison for the Defense Research Institute Lawyers’ Professionalism and Ethics Committee. To learn more please call Jessica at 702-382-1500 or email to firstname.lastname@example.org
For the second year in a row, Joe Garin has been named one of Nevada’s Legal Elite. This list of Nevada’s top attorneys, as chosen by their peers, is published by Nevada Business Magazine and includes only the top 300 attorneys out of the 8,680 active members of the Nevada State Bar Association. Joe is the Managing Partner of the firm’s Las Vegas office.
In addition to being one of Nevada’s Legal Elite, Joe is recognized as a national leader in Professional Liability Law, and Insurance Litigation & Litigation Management. He has defended more than 400 lawyers and law firms in Nevada, Colorado, Michigan and Illinois during his career. He is a featured speaker at continuing education conferences in Nevada and across the USA, and he annually teaches a continuing legal education seminar, State of the Law – Legal Malpractice, in cooperation with various local bar associations.