An unpublished opinion of the Nevada Supreme Court in Dickerson v. Downey Brand LLP came out last week.

In 2006, Republicano, a certified public accountant, was retained as an expert by the Simons, Dickerson’s clients, in the federal action. In 2010, the federal action settled. As part of the settlement agreement, Republicano agreed to a fee reduction—an immediate payment of $200,000, rather than a $531,171 remaining balance. Republicano sought and received assurances from Dickerson that the language of the settlement agreement made clear that the $200,000 was in addition to any prior payments received. Given those assurances, Republicano signed the settlement agreement.

Despite providing Republicano assurances to the contrary, Dickerson reinterpreted the agreement to mean Republicano would receive $200,000 minus any prior payments. Republicano eventually recovered $135,000 and was owed a balance of $65,000 plus interest. Republicano subsequently sued Dickerson and the Simons, alleging breach of contract, breach of the implied covenant of good faith and fair dealing, conversion, fraud, and breach of fiduciary obligation, commencing the fraud action. Republicano alleged that Dickerson and the Simons colluded to fraudulently induce him to compromise the fees and, thereafter, that the Simons breached their agreement to pay Republicano.

Dickerson claimed he was immune from suit because the conversations with his clients involving the settlement funds were privileged. The district court disagreed, finding the litigation privilege did not apply because Dickerson intentionally misrepresented to the intent of the wording of the settlement agreement to Republicano and assured Republicano that he would be paid. The district court concluded that Dickerson purposefully manipulated the Simons and induced them to breach their agreement to pay and ordered the Simons and Dickerson to pay Republicano the amount owed.

 Dickerson’s appeal was timely (an issue) but meritless

We conclude the litigation privilege does not, and should not, apply here. First, although Nevada caselaw is silent on the matter, allowing the privilege to extend to an attorney knowingly colluding with clients to short-change an expert, as occurred here, is inconsistent with the public policy behind the privilege. The litigation “privilege is designed to ensure that attorneys have the utmost freedom to engage in zealous advocacy and are not constrained in their quest to fully pursue the interests of, and obtain justice for, their clients,” Greenberg Traurig, 130 Nev., Adv. Op. 67, 331 P.3d at 904. It is not designed to provide attorneys with the ability to act malfeasant and then hide behind the privilege with impunity. Here, Dickerson manipulated his position of influence with Republicano and the Simons in order to lower Republicano’s fees, raise his own fees, and, presumably, allow his clients funds they otherwise were not entitled to keep . 

Additionally, the gravamen behind Republicano’s complaint was Dickerson’s actions, not the communication with the Simons. The claims against Dickerson upon which Republicano prevailed are not based on attorney-client communications or any communications between Dickerson and the Simons in which he provided legal advice. Rather, they are based on Dickerson’s and the Simons’ failures to uphold the settlement agreement. The district court found that Dickerson did more than just advise his clients that they had the option of not paying Republicano; instead, he caused them to breach the contract by mendacious behavior. Additionally, Republicano asserted claims directly against Dickerson for conversion and fraud, based on the same rationale. Thus, the communications at issue were not implicated by the claims made by Republicano. Therefore, the district court did not err in refusing to apply the litigation privilege here.

Two justices dissented and would find the appeal was untimely filed. 

I found an 18-month suspension of a Nevada attorney with the same name but have not  verified that it is the same person. (Mike Frisch)