Dax Watson to Speak on the Impact of Real Estate Trends on Professional Liability Claims at 2018 National CLM Conference

Dax Watson compressedDax Watson, Managing Partner of the Phoenix office of the Lipson Neilson law firm, will co-present “As the Market Soars, So Do the Lawsuits: How Market Conditions Impact Real Estate Professional Liability Claims”, along with Regan Katz, Managing Director of Wortham Insurance and Risk Management, at the 2018 CLM (Claims and Litigation Management) Management and Professional Liability Conference on June 21, 2018 at the Boston Waterfront Hotel in Boston, MA.

This presentation will dive into the ramifications of America’s real estate market that is trending up and approaching pre-2008 levels. How does that impact real estate claims?

This session will focus on claims that arise out of investment-related transactions like fix-and-flip, buy-and-hold, and investment partnerships that ultimately lead to claims citing poor workmanship, undisclosed defects, and non-permitted work all passed on to the real estate professionals involved in the transaction.

The active real estate market also is leading to increased property management portfolios and VRBO type properties. This, too, leads to claims against the real estate professionals. Attendees will gain valuable insight into how hot real estate markets lead to increased claims and explore how standard insurance policies for real estate professionals respond to such claims.

Dax Watson is a cum laude graduate with a B.A. in History from Arizona State University, and a cum laude graduate from the Sandra Day O’Connor College of Law at Arizona State University. He focuses his practice in commercial litigation with an emphasis in real estate matters and professional liability defense. In his capacity as a defense attorney, Dax defends professionals in the fields of real estate, law, accounting, architecture, and engineering. He also defends officers, directors and employers in employment practice liability disputes.

Lipson Neilson Team Supports 2018 Susan G. Komen Race for the Cure – Detroit

2018 Susan Komen

The firm is proud to have participated with a team in the 2018 Susan G. Komen Race for the Cure – Detroit. The firm’s team included 29 attorneys, staff, families and friends that are connected by their passion to help fight breast cancer. This year’s 5K run/fitness walk through the streets of downtown Detroit, held on May 5, 2018, drew an estimated crowd of 25,000 women, men and children coming together to fight breast cancer; the event raised a total of $343,599.

Founded in 1985, the Lipson Neilson law firm has grown from three founding members to thirty-three attorneys located in three states. 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.

Sandra D. Glazier on Panel That Will Discuss Legacy Planning in the Era of Tax Reform at Event Presented by the University of Michigan Office of Planned Giving and Wilmington Trust

Sandra GlazierLipson Neilson shareholder Sandra D. Glazier is on a panel of experts that will discuss “Building a Successful Legacy Plan in an Era of Tax Reform: Charitable Planning Opportunities Under the New Tax Laws” at a June 5, 2018 event presented by The University of Michigan Office of Planned Giving and the management and staff of Wilmington Trust. This event will be held at the Park Avenue offices of Wilmington Trust in New York City. Lipson Neilson is the only law firm represented on this panel.

An attorney for more than 34 years, Sandra D. Glazier is known for her expertise and successful track record in probate litigation, estate planning, trust and estate administration, and family law matters. The cases Ms. Glazier works on tend to be very complex and require technical as well as legal expertise. She has represented contestants and proponents of estate planning documents, as well as fiduciaries, in significant trust litigation proceedings.

An AV Preeminent® rated attorney, Ms. Glazier is recognized nationally for her accomplishments and expertise in estate planning and probate litigation and is routinely requested to speak at some of the leading legal industry conferences across the country. She has been selected as a “Michigan Super Lawyer” by Thomson Reuters, the world’s leading source of information for the legal industry and has been recognized as a “Top Lawyer” by DBusiness, in the areas of probate, estate and family law. Ms. Glazier has had numerous articles published by some of the legal industry’s leading publications. and has taught “Valuation for Federal, Estate and Gift Tax Purposes” in a Masters’ level course.

UofM Seminar June 2018

Jeffrey T. Neilson Honored for Service on Michigan’s Attorney Grievance Commission

Jeffrey NeilsonThe firm is pleased to announce that Jeffrey T. Neilson has been honored by the members of the State of Michigan Attorney Grievance Commission for his service as Secretary of the Commission from October 2011 to October 2017.

In honoring Mr. Neilson for his service, the Commission made specific mention of his exceptional, and meritorious service in preserving the highest standards of professional conduct for the protection of the public, the courts, and the legal profession.

One of the founders of the Lipson Neilson law firm, Mr. Neilson is known nationally for his expertise in business counseling, estate planning and domestic and family law liability. He has more than thirty years of experience in matters relating to probate administration and estate/retirement planning, corporate and business representation and succession planning, election law, accounting and legal malpractice, non-profit organizations, taxation issues including tax controversies, family law, and probate litigation. Mr. Neilson is licensed to practice law in Michigan, Nevada, and Colorado.

Founded in 1985, the Lipson Neilson law firm has grown from three founding members to thirty-three 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.

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.

David A. Clark Chosen to Chair Lawyer Well-Being Committee for the Association of Professional Responsibility Lawyers (APRL)

David ClarkDavid A. Clark, a Partner in the firm’s Las Vegas office, has been chosen by the APRL to Chair the newly formed Lawyer Well-Being Committee. This committee will act as a liaison with the American Bar Association (ABA), the National Organization of Bar Counsel (NOBC), and state-led efforts to implement the goals of the ABA’s National Task Force on Lawyer Well-Being. The committee is planning its first CLE at APRL’s Annual Meeting in Chicago in August.

Various reports indicate that 40-70 percent of discipline and malpractice claims against lawyers involve depression or substance abuse. As APRL’s follow-on commitment to act on the call of the National Task Force on Lawyer Well-Being for stakeholders in the legal profession to join in creating a better future for our lawyers, this committee will work with stakeholders and jurisdictions across the country to coordinate and implement state-level actions to improve the effectiveness, ethical integrity, and simple human experience of being a lawyer.

Judges, regulators, employers, bar associations, assistance programs, liability carriers, and law students are coming together in the goal that, “to be a good lawyer, one has to be a healthy lawyer.” APRL’s mission includes initiating positive changes in laws and regulations regarding professional responsibility and the development and implementation of sound ethical standards within the legal profession. All of that begins with a healthy, thriving, and connected lawyer.

David A. Clark’s experience includes 15 years as a prosecutor for the Office of Bar Counsel, including five years as chief discipline counsel for the State Bar. He has extensive experience in attorney regulation for professional liability, attorney discipline and commercial litigation.

He established the training program for the Southern and Northern Disciplinary Boards, obtained numerous changes to the Nevada Rules of Professional Conduct and the Supreme Court’s rules for attorney discipline, and he drafted the Disciplinary Rules of Procedure that were adopted in July 2014 by a task force and the Board of Governors.

Sandra D. Glazier Selected to Speak on “Attorneys’ Roles and Responsibilities in Protecting Aging Clients and Their Assets” at the American Bar Association’s 30th Annual Spring Symposia for the Section of Real Property, Trust and Estate Law

Sandra Glazier 2017 webpage photoLipson Neilson Shareholder Sandra D. Glazier has been selected by the American Bar Association to be on a panel that will discuss attorneys’ roles and responsibilities in protecting aging clients (and their assets) from the seemingly well-intentioned but overly-influencing next generation. This session, “It May Be a Small World, but You Still Need to Wait Your Turn – Issues with Elder Planning and Abuse”, will be moderated by The Hon. Cheryl D. Cesario, retired Circuit Court Judge of Cook County, Probate Division, Evanston, Illinois, and includes other attorneys from around the country. Ms. Glazier is one of only three Michigan attorneys selected by the ABA to present at this national Symposia that will be held in Orlando, Florida during May 10 – 11, 2018.

An attorney for more than 35 years, Sandra D. Glazier is known for her expertise and successful track record in probate litigation, estate planning, trust and estate administration, and family law matters. The cases Ms. Glazier works on tend to be very complex and require technical as well as legal expertise. She has represented contestants and proponents of estate planning documents, as well as fiduciaries, in significant trust litigation proceedings.

An AV Preeminent® rated attorney, Ms. Glazier is recognized nationally for her accomplishments and expertise in estate planning and probate litigation and is routinely requested to speak at some of the leading legal industry conferences across the country. She has been selected as a “Michigan Super Lawyer” by Thomson Reuters, the world’s leading source of information for the legal industry and has been recognized as a “Top Lawyer” by DBusiness, in the areas of probate, estate and family law. Ms. Glazier has had numerous articles published by some of the legal industry’s leading publications. and has taught “Valuation for Federal, Estate and Gift Tax Purposes” in a Masters’ level course. To learn more please visit www.lipsonneilson.com.

Contact: Sandra D. Glazier
Phone: 248-593-5000
Email: sglazier@lipsonneilson.com

Michael Orcutt Provides Expert Testimony Before the Arizona Senate Judiciary Committee on Statute of Limitations for Appraisers and Mortgage Brokers

Michael Orcutt 2015 150 x 163Michael Orcutt, a Partner in the firm’s Phoenix office, was selected by the Coalition of Arizona Appraisers to provide testimony before the Arizona Senate Judiciary Committee on a bill sponsored by Senator Kate Brophy McGee that would create a statute of limitations specific to appraisers, appraisal management companies, and mortgage brokers.  Mr. Orcutt testified in favor of this bill on February 15, 2018, and after his testimony the Senate Judiciary Committee voted unanimously in favor of the bill. Senator Brophy McGee has asked Mr. Orcutt to continue his involvement and work with her as a primary supporter of this bill as it progresses.

Mr. Orcutt is an experienced commercial litigator with a particular emphasis on real estate, construction, and insurance matters. He has written several published articles and is the co-author of the Real Estate Broker Liability chapter of the Arizona Tort Law Handbook published by the State Bar.

Founded in 1985, the Lipson Neilson law firm has grown from three founding members to thirty-four attorneys located in three states, Arizona, Nevada, and Michigan. The firm is widely known for its excellence in the professional liability lines, offering invaluable insight and experience to its clients across all industries. You can learn more at www.lipsonneilson.com.

Contact: Michael Orcutt
Phone: 602-626-8888
Email: MOrcutt@lipsonneilson.com

Sandra D. Glazier Presents “Joint Representation: Conflicts, Waivers, Privileges, and Retention Agreements” at 27th Annual Drafting Estate Planning Documents Seminar

Sandra Glazier 2017 webpage photoSandra D. Glazier has been selected by ICLE to present “Joint Representation: Conflicts, Waivers, Privileges, and Retention Agreements” at the 27th Annual Drafting Estate Planning Documents seminar at The Inn at St. John’s conference center in Plymouth (MI) on February 15, 2018.

Stacked with top Probate and Estate Planning speakers from across Michigan, this seminar provides 5.5 intermediate level CLE credits for eligible attorneys. Ms. Glazier made this presentation at the same seminar in Grand Rapids (MI) on January 18, 2018.

An attorney for more than 35 years, Sandra D. Glazier is known for her expertise and successful track record in probate litigation, estate planning, trust and estate administration, and family law matters. The cases Ms. Glazier works on tend to be very complex and require technical as well as legal expertise. She has represented contestants and proponents of estate planning documents, as well as fiduciaries, in significant trust litigation proceedings.

An AV Preeminent® rated attorney, Ms. Glazier is recognized nationally for her accomplishments and expertise in estate planning and probate litigation and is routinely requested to speak at some of the leading legal industry conferences across the country. She has been selected as a “Michigan Super Lawyer” by Thomson Reuters, the world’s leading source of information for the legal industry and has been recognized as a “Top Lawyer” by DBusiness, in the areas of probate, estate and family law. Ms. Glazier has had numerous articles published by some of the legal industry’s leading publications. and has taught “Valuation for Federal, Estate and Gift Tax Purposes” in a Masters’ level course.

Michigan Retroactively Applies Legal Malpractice Six Year Repose Statute to Bar Claims Arising Prior to Enactment of Statute

Phil SeltzerNortley v. Hurst, — Mich App —-; — N.W.2d —- (2017)(Michigan Court of Appeals, issued October 10, 2017, Docket #333240)(2017 WL 4526679)

Phillip E. Seltzer, Esq. of Lipson Neilson P.C., Bloomfield Hills, Michigan
Email: PSeltzer@lipsonneilson.com
Phone: 248-593-5000

In Nortley v. Hurst, the Michigan Court of Appeals held that Michigan’s six-year repose statute for legal malpractice claims applies retroactively to include claims based on facts that occurred prior to enactment and that may not have accrued until after enactment. This is true regardless of whether a plaintiff could not have reasonably discovered the legal malpractice claim or the existence of injury until a time after the enactment of the repose statute.

Plaintiff, Sarah Lynn Nortley, retained Dennis Hurst, of the law firm Dennis Hurst & Associates, in August 2008 to represent her in a divorce proceeding. A judgment of divorce as entered on June 12, 2009 – just 11 days before the tenth anniversary of the marriage. Plaintiff claimed that over 6 years later, after a conversation with her mother, she discovered a person could claim social security benefits through a former spouse if the marriage lasted ten years or more.

Nortley brought a legal malpractice claim against defendants on January 15, 2016, asserting that the failure of defendants to advise her that social security benefits were only available to a former spouse if the marriage lasted ten years or more.

On January 2, 2013 — three and half years after Nortely’s divorce was concluded and over three years before Nortley filed her malpractice claim, the Michigan legislature adopted a six-year statute of repose for all legal malpractice claims. MCL 600.5838b.

Defendants file a dispositive motion seeking summary dismissal under the six-year statute of repose claiming that it barred her claim. The trial court agreed. Nortley appealed claiming the trial court wrongly applied that repose statute because it went into effect after her claim accrued and it did not apply retroactively, would deny her due process, and would deny her a vested right in her cause of action for malpractice.

The Michigan Court of Appeals Decision
In affirming, the Court of Appeals noted that the statute of repose “reflects the reasonable legislative purpose of protecting professionals from stale claims.” “Generally, a new or amended statute applies prospectively unless the Legislature clearly and unequivocally intends for the statute to have retroactive effect.” However, an exception to the general rule presuming prospective application is a statute that is remedial or procedural in nature and whose prospective application will not deny vested rights.

Nortley contended the repose statute should not apply retroactively to bar her malpractice claim because the Legislature enacted it after her claim accrued and did not provide for retroactive application. Nortley argued her malpractice complaint was timely because she filed it within six months of discovering the existence of the malpractice claim, per the statute of limitations in Michigan. Under the limitation statutes, a person can timely file a suit either within two years from accrual of the claim – namely, from the last day the lawyer stops serving the plaintiff in a professional capacity on the matter giving rise to the claim (MCL 600.5805[1] and [6]) or within six months of when a plaintiff discovered or should have discovered the claim, whichever period is later. MCL 600.5838(2).

However, under the six-year repose statute, MCL 600.5838b(1)(b), accrual is not linked to a date of injury or its discovery but, instead, precludes any recovery after a fixed period of time, namely, it bars a legal malpractice claim “six years after the date of the act or omission that is the basis for the claim.”

The Court of Appeals rejected the argument that retroactive application would deny Nortley a “vested right.” The new repose statute did not prevent the filing of a timely claim because of an immediate preclusive effect. Nortley’s malpractice claim accrued after entry of her divorce judgment in 2009. When the repose statute took effect in 2013, she had more than two years to bring a timely claim within the six-year repose period.

The Court also rejected the argument that Nortley’s subsequent discovery of the malpractice claim should change the result. Noting that a statute of limitation bars a claim after it accrues, a repose statute bars a claim after expiration of a specified time period from a designated triggering event – in this instance, the defendant’s negligent act or omission. Accordingly, it may prevent a claim from accruing even if the injury or its discovery happens after the statutory period has expired. In sum, the repose statute “makes clear that the six-year period of repose caps the time for bringing a claim within six months of discovery.”

Finally, the Court rejected Nortley’s due process claim, noting a statute comports with due process if it “bears a reasonable relation to a permissible legislative objective.” Because the repose statute “reflects the reasonable legislative purpose of protecting professionals from stale claims” and its enactment did not have an immediate preclusive effect on Nortley’s claim, no due process violation occurred.

Significance of Decision
The case is significant for lawyer defendants sued for conduct springing from any alleged negligent act or omission over six years from the alleged negligence – regardless of whether that negligence occurred before the enactment of the repose statute. By their very nature, statutes of limitation and statutes of repose are arbitrary and do not discriminate between the just and unjust claim or the avoidable and unavoidable delay.

However, they all recognize the basic notion that a defendant has the right to be free, at some point, from stale claims and the increasing jeopardy of fading memories and lost evidence. Repose statutes attempt to cap or otherwise set the outside time parameter when such claims are deemed expired regardless of knowledge of a claim or the existence of injury.

Summary Dismissal Affirmed In Legal Malpractice Case Where Plaintiff Failed To Show That “Pertinent Decision Makers” Of Government Agency “Would Have” Agreed To A “Better Result” But For The Alleged Incorrect Legal Advice Given By Lawyer During Settlement Negotiations

Phil SeltzerManveen Saluja, M.D. v Honigman Miller Schwartz And Cohn LLP, et al, Unpublished Per Curiam Opinion of the Michigan Court of Appeals, issued March 16, 2017 (Docket No.330367)

Phillip E. Seltzer, Esq. of Lipson Neilson P.C., Bloomfield Hills, Michigan
Contact: PSeltzer@lipsonneilson.com
Phone: 248-593-5000

In Manveen Saluja, M.D. v Honigman Miller Schwartz And Cohn LLP, et al, the Michigan Court of Appeals concluded that in a non-litigation context, where a lawyer’s alleged negligent advice led to an inappropriate settlement with a government regulatory agency, it is still necessary for a plaintiff-client to prove causation by demonstrating a “better outcome” “would have” occurred but for the negligence of the attorney.

Plaintiff doctor had a colleague (Dr. Kumar) who requested medical treatment for her mother (“M”), an elderly woman who lived in India. Plaintiff wrote prescriptions for fentanyl, a schedule II controlled substance, for M, knowing Dr. Kumar would obtain and deliver the drugs to India for his mother. During a six-year period, over 285 fentanyl patches were prescribed.

In 2012, Plaintiff received a call that DEA agents were at her office investigating. Plaintiff called Defendant law firm and talked with Defendant attorney Sprecher. After Sprecher briefly talked with a DEA agent, plaintiff was advised by Sprecher to comply with the investigation. After reviewing M’s file, a DEA agent explained in “an intimidating manner” that a $5,000 fine plus jail time exists for the offense. Plaintiff was then handed a form to sign, allegedly being told to sign it or go to jail. Plaintiff did not call Defendants. After signing the form, Plaintiff voluntarley surrendered her controlled substances privileges and had to surrender her DEA Certificate of Registration. Days later, local DEA offered to partially reinstate plaintiff’s privileges, but restricting her right to order certain controlled substances for three years. Her new lawyer (not Defendants) negotiated the restriction down to two years. A dissatisfied plaintiff contacted the DEA office in Washington D.C. Consequently, the local DEA withdrew the two year deal, but her new counsel later reinstated the three year restriction.

Plaintiff filed a legal malpractice suit, asserting defendants should have advised her she was not required to sit for the DEA interview and she should not have signed a voluntary release of her DEA privileges – the key bargaining chip needed to strike a better deal and achieve a better outcome that what was obtained.

Defendants moved for summary dismissal on the issue of causation. Defendants argued plaintiff could not offer evidence showing the actual negotiated outcome “would have” been “better” had plaintiff been given the purported correct advice. The motion was granted and the case summarily dismissed.

The Michigan Court of Appeals Decision
In affirming, the Saluja panel recognized the requirement of establishing a “suit with a suit” to show causation in legal malpractice — that is, that a plaintiff “would have been successful in the underlying suit.” However, because of no underlying litigation, the court applied an analogous rule: “plaintiff had to offer evidence that but for the malpractice, she would have received a better outcome than the one she received from the DEA”.

Plaintiff primarily relied upon expert testimony to establish causation. The expert testified at deposition if attorney Sprecher had provided “competent advice” – postponing the interview with DEA agents to allow an attorney to be present – “plaintiff never would have voluntarily surrendered her DEA registration.” Possessing the registration “was crucial” because “the registration represented a bargaining . . . ‘chip.’” By retaining that “chip,” there was a “good chance” plaintiff “would have kept her registration intact” instead of receiving a three-year restricted license on her ability to prescribe controlled substances. The expert stated that “good chance” meant “more probably than not and to a legal degree of certainty.”

However, the Saluja panel ruled the trial court correctly held the expert’s “testimony was inadequate to prove causation because it was too speculative.” Even though the expert “opined at . . . that plaintiff would have gotten through this encounter with the DEA with her license fully intact, he admitted, ‘I don’t know that [for sure].’” It was also “telling” he could not “specifically identify what plaintiff’s outcome with the DEA would have been” had attorney Sprecher given plaintiff the alleged proper advice. In particular, the court noted plaintiff failed to present testimony from any “pertinent decision makers” at the DEA to show how negotiations “would have been different had plaintiff not initially voluntarily surrendered her registration.” Accordingly, the expert’s “mere opinion that the outcome would have been different, without any supporting evidence, amounts to nothing more than mere conjecture and speculation” — inadequate to show causation.

In so ruling, the Saluja panel principally relied on another legal malpractice case, Pontiac School Dist v Miller, Canfield, Paddock & Stone, 221 Mich App 602; 563 NW2d 693 (1998), where the “suit within a suit” concept was not applied because of the non-litigation nature of the asserted malpractice. In Pontiac, plaintiff sued its attorneys for recommending a bond offering that allegedly required payment of excessive interest and insurance costs. Expert testimony posited the view that an alternative bond structure would have saved over forty-nine million dollars and, further, if the proper advice had been rendered, “a reasonably informed board of education would have adopted” the alternative proposal. However, no evidence was presented that the decision-makers — the board members — “would have” accepted the alternative proposal if the advice had been given, thereby making the expert’s opinion speculative.

Likewise, the Saluja court determined that, absent testimony from the “pertinent decision-makers” from the DEA showing what they “would have” decided if the supposed proper advice had been rendered, the expert’s subjective belief on this point was nothing more than conjecture on a possible outcome. Accordingly, summary dismissal by the trial court was affirmed.

Significance of Decision
The case is significant for lawyer defendants sued for conduct springing from a non-litigation negotiation/settlement/transactional context. Although the “suit within a suit” concept may not directly apply, a plaintiff is not relieved from the burden to establish that a defendant attorney’s actions were the necessary factual cause of an injury and that actual damages resulted from those actions — namely, that but for the conduct of the attorney, plaintiff “would have” obtained a “better” outcome. Saluja requires that, in non-litigation circumstances, a plaintiff must show the “pertinent decision-makers” on the other side of the negotiation/settlement/ transaction “would have” agreed to the “better outcome” if the proper advice by the attorney had occurred.

Without showing the difference between the negotiation position truly lost (the “better outcome” that “would have” been accepted) and the position a plaintiff actually obtained, any claim of a causal link to actual damages should be considered speculative. The case also demonstrates that expert testimony, discussing probable or likely outcomes, without a factual basis of what “would have” occurred, is legally insufficient to show causation and will be considered conjecture.