Trump’s Lawyers Will Get Away with Facilitating His Anti-Democratic Antics and They Know It

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—predicts that because the lawyer discipline process is broken, President Trump’s lawyers will get away with facilitating his anti-democratic misconduct. Professor Sarat notes that Lawyers Defending American Democracy (LDAD) released a letter calling on bar authorities to investigate and punish members of Trump’s post-election legal team, but he points out that while LDAD can shame those members, it still lacks the ability itself to discipline or disbar.

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Banka v. State

Citation: 136 Nev. Adv. Op. No. 81

Opinion Date: December 10, 2020

Judge: Stiglich

Areas of Law: Criminal Law

The Supreme Court reversed Defendant's conviction of driving and/or being in actual physical control of a motor vehicle while under the influence of an intoxicating liquor or alcohol resulting in substantial bodily harm entered upon an Alford plea, holding that the district court abused its discretion by denying Defendant's presentence motion to withdraw his guilty plea. When he entered his Alford plea, Defendant was informed that he faced a mandatory fine of up to $5,000 but was not informed that the fine would be at least $2,000. Defendant filed a presentence motion to withdraw his guilty plea, arguing that he did not understand the consequences of his plea because he did not know the mandatory minimum fine for the offense was $2,000. The district court denied the motion. The Supreme Court reversed, holding (1) because a fine is a form of punishment, a defendant must be informed of any mandatory minimum fine in order to be fully informed of the direct consequences of a plea; and (2) the district court abused its discretion in denying Defendant's motion to withdraw his guilty plea.

Randolph v. State

Citation: 136 Nev. Adv. Op. No. 78

Opinion Date: December 10, 2020

Judge: Silver

Areas of Law: Criminal Law

The Supreme Court reversed Defendant's conviction of conspiring with a hitman to have his sixth wife murdered during a staged burglary and then murdering the hitman, holding that the district court abused its discretion in admitting certain prior bad act evidence. At issue was the admission of events surrounding the death of Defendant's second wife. On appeal, Defendant argued that the evidence was inadmissible under Nev. Rev. Stat. 48.045(2). The Supreme Court reversed, holding (1) the danger of unfair prejudice substantially outweighed any probative value of the disputed evidence, and the district court abused its discretion by allowing its admission; and (2) the error in admitting the prior bad act evidence was not harmless. The Court remanded the matter for a new trial.

Kaur v. Singh

Citation: 136 Nev. Adv. Op. No. 77

Opinion Date: December 10, 2020

Judge: Mark Gibbons

Areas of Law: Family Law

The Supreme Court reversed the order of the district court denying Rajwant Kaur's motion to set aside a 2004 divorce decree, holding that the district court erred because it did not consider the traditional judicial estoppel factors before considering Rajwant's defense of duress and coercion. In 2004, Rajwant and Jaswinder Singh filed a joint petition for divorce. The district court entered the divorce decree without holding a hearing. In 2019, Rajwant filed a motion to set aside the 2004 divorce decree, arguing that Jaswinder forced her to sign the divorce decree so it was obtained by fraud. The district court denied the motion, finding that, under Vaile v. Eighth Judicial District Court, 44 P.3d 506 (Nev. 2002), Rajwant was judicially estopped from challenging the decree. The Supreme Court reversed, holding that the district court erroneously applied Vaile, in concluding that judicial estoppel precluded Rajwant's motion and failed to consider whether the five-factor test favored application of judicial estoppel.

Walker v. Second Judicial District Court

Citation: 136 Nev. Adv. Op. No. 80

Opinion Date: December 10, 2020

Judge: Kristina Pickering

Areas of Law: Personal Injury

In these two personal injury disputes the Supreme Court denied Petitioners' petition for a writ of mandamus demanding that the Supreme Court reverse the district court's order denying their two motions to strike requests for trials de novo in their cases, holding that Petitioners did not offer any cogent, compelling reason for the Supreme Court to issue mandamus. In separate incidents, John Walker sustained injuries when Sheila Michaels collided with him, and Ralph Ortega received injuries after Katheryn Fritter rear-ended his vehicle. Walker sued Michaels, and Ortega sued Fritter. Both cases proceeded to arbitration. Michaels and Fritter each served offers of judgment, which Walker and Ortega, respectively, rejected. Ultimately, the arbitrators in Walker's and Ortega's cases found in their favor. Because Farmers Insurance insured both Michaels and Fritter, the same attorney, McMillen, represented the interests of both defendants. McMillen sought trials de novo in both cases. Walker and Ortega filed motions to strike the requests. After the district court rejected the motions to strike, Walker and Ortega filed this petition for a writ of mandamus. The Supreme Court denied their petition, holding that Petitioners failed to demonstrate a basis for the Supreme Court to grant either a traditional or advisory writ of mandamus.

Lathigee v. British Columbia Securities Commission

Citation: 136 Nev. Adv. Op. No. 79

Opinion Date: December 10, 2020

Judge: Kristina Pickering

Areas of Law: Securities Law

The Supreme Court affirmed the district court's decision to recognize and enforce in Nevada the disgorgement portion of a securities-fraud judgment from British Columbia, holding that the district court properly recognized the disgorgement judgment. On appeal, Appellant argued that the disgorgement judgment was in the nature of a fine or penalty, and therefore, it should not be enforced outside Canada. The Supreme Court disagreed, holding (1) the British Columbia judgment did not constitute an unenforceable penalty because the primary purpose of the disgorgement award was remedial in nature, not penal; and (2) even crediting the argument that Nev. Rev. Stat. 17.740(2)(b) takes the disgorgement judgment outside Nev. Rev. Stat. 17.750(1)'s mandatory recognition provisions, the district court properly recognized it as a matter of comity.