COMMUNIQUÉ. Nevada. This Year s Five Things Topics List: Bankruptcy DUI Non-Compete Agreements COMMUNIQUÉ January Clark County Bar Association

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1 Clark County B ar Association @ccbanv + Five Things Thursday, January 16, 2014 Volunteer Appreciation Luncheon RSVP by January 10. Details on page 11. COMMUNIQUÉ 5 THINGS Nevada LAWYERS JANUARY 2014 OFFICIAL PUBLICATION OF THE CLARK COUNTY BAR ASSOCIATION VOL. 35, NO. 1 Should KNOW This Year s Five Things Topics List: Bankruptcy DUI Non-Compete Agreements COMMUNIQUÉ January 2014 Federal Trademark Applications Indian Child Welfare Act 1

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3 Clark County B ar Association Clark County Bar Association PRESIDENT Kimberly Buchanan PRESIDENT-ELECT Damon K. Dias SECRETARY/TREASURER Catherine M. Mazzeo EXECUTIVE BOARD MEMBERS John P. Aldrich Tami D. Cowden Nedda Ghandi James E. Harper Kimberly R. McGhee Macaire K. Moran Mariteresa Rivera-Rogers Jennifer Roberts Hon. Susan Scann Jason Stoffel IMMEDIATE PAST PRESIDENT Kari L. Stephens COMMUNIQUÉ OFFICIAL JOURNAL OF THE CLARK COUNTY BAR ASSOCIATION PUBLISHER Kari L. Stephens EDITOR-IN-CHIEF Airene Williamson ASSOCIATE EDITORS Heather Anderson-Fintak Tami D. Cowden Amy C. Ma Paul C. Ray Jennifer Roberts CONTRIBUTING EDITORS James E. Harper EDITORIAL PRODUCTION, ART DIRECTION, ADVERTISING DESIGN & SALES Steph Abbott COMMUNIQUÉ is published eleven times per year with an issue published monthly except for July by the, P.O. Box 657, Las Vegas, NV Phone: (702) (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request. COMMUNIQUÉ accepts advertisements from numerous sources and makes no independent investigation or verification of any claim or statement made in the advertisement. COMMUNIQUÉ is mailed to all paid members of CCBA, with subscriptions available to nonmembers for $75.00 per year. For advertising information and editorial policy, please contact Steph Abbott at (702) or stephabbott@ clarkcountybar.org. 5 THINGS Articles 12 Five Things Every Practitioner Should Know About the Indian Child Welfare Act By Alyssa D. Campbell 14 Five Things Every Lawyer Should Know About Non-Compete Agreements By Chad D. Olsen 16 Five Things Every Lawyer Should Know About Bankruptcy By Laura A. Deeter 18 Five Things Every Lawyer Should Know About Federal Trademark Applications By Laraine Burrell and Nancy Ayala 20 Five Things Every Lawyer Should Know about DUI Law By Craig Mueller Columns 5 A Message From the President Resolve to Make a Difference and to Effect Positive Change in Our Profession By Kimberly Buchanan 22 A View from the Bench of the Las Vegas Justice Court Cruz Control: New Courtroom Locations for Civil Cases By Chief Judge Karen Bennett-Haron 24 Supreme Court Summaries Advance Opinion Summary, By Joe Tommasino 30 Pro Bono Corner Pro Bono: Nevada s Sword and Shield By Michael W. McKelleb, Esq. Events & Seminars 19 January Bar Luncheon Nevada LAWYERS KNOW Should 21 Bailment and Subrogation Law in Nevada CLE Seminar Departments 6 Bar Briefs 6 Errata 6 Court Changes 8 Member Moves 10 News & Notes 28 Market Place COMMUNIQUÉ JANUARY 2014 VOL. 35, NO. 1 COMMUNIQUÉ January

4 Advertisers Index Ara Shirinian Mediation...28 Bert O. Mitchell...27 City of Las Vegas Downtown Cultural Series..32 Clark County Lawyer Finder... 4, 28 Esquire Deposition Solutions...2 Gatski Commerical Real Estate Services...29 Gerald M. Welt, Chtd...25 Goldsmith & Guymon, P.C...9 Hutchison & Steffen...15 Las Vegas Legal Video...23 Legal Wings... 27, 30 Meier & Fine, LLC...9 Neeman & Mills PLLC...17 North American Title Company...29 Portraits to You...16 Private Trials...25 Prudhomme Law Office...17 State Bar of Nevada...13 Strategic Valuation Group, LLC...7 Valley electric Association, Inc...31 Witherspoon Security Consulting...28 Advertising Opportunity Advertising space available for announcements of professional achievements, goods, and services. Rates and specs available at org or upon request. Complimentary ad design available to members of the. Contact: Steph Abbott, (702) or Editorial Calendar* February 2014 Pro Bono March 2014 Criminal Law April 2014 The Trial May 2014 Estate Planning & Probate June/July 2014 Business Law August 2014 Immigration Law September 2014 Medical Malpractice Law October 2014 Judicial Election Preview November 2014 Eminent Domain December 2014 Legal Trends Notes: The deadline for insertion of all final, approved articles, news, and ads is the 1st of the month preceding cover. Space reservations are encouraged at least two months in advance. The editorial calendar may change without notice at any time. The June/July issue is published in June. There is no publication released in July. *The January 2014 will see an increased circulation, due to the use of a larger mailing list. Affordable, Online Marketing for Attorneys ClarkCountyLawyerFinder.com is a premium, online attorney directory service operated by the.* Get found by potential clients! As consumers search online using key words and terms, they may click ads directing their browser to the website ClarkCountyLawyer- Finder.com. Listings are available in these categories: Adoption and Surrogacy Bankruptcy, Debt and Consumer Law DUI/Criminal and Traffic Defense Education, School and Government Law Employment and Labor Relations Family Law and Divorce Immigration and Visas Injury and Accidents Lawsuits and Appeals Malpractice Probate, Estate and Elder Law Real Estate and Housing Law Small Business Law and Litigation Social Security and Veterans Benefits Workers Compensation Sign up today! Steph Abbott, (702) or stephabbott@clarkcountybar.org Subscription Features 10 Pages of content 2 practice categories Manyl sub-categories Link to firm s website Multiple exposures & spot promos Google AdWords campaigns No additional costs No set-up fees No cancellation fees Only $125/month or $1,200/year! Clark County B ar Association Attorney listings are exclusive to attorney members of the with registration. Payment is required to participate in this premium, online directory service. The Google AdWords campaigns are included in the subscription price and do not use the attorneys names. 4 January 2014 COMMUNIQUÉ

5 A Message From the President Resolve to Make a Difference and to Effect Positive Change in Our Profession By Kimberly Buchanan I am excited to begin my term as this year s President. As I embark on my new role, I reflect upon the year that has gone by. In 2013, I witnessed the downward spiral of several individuals afflicted with chemical dependency. I also mourned the loss of a dear friend to breast cancer. The loss of a friend who was so young and vibrant underscored the frailty of life and the need to effect positive change when able. The year 2014 brings with it new opportunities to help those in our profession who may be suffering from substance abuse. Substance abuse in the legal profession Substance abuse is a significant problem in our profession. In 1996, the American Bar Association estimated that 15 to 20 percent of the lawyers suffer from alcohol dependence or substance abuse compared with ten percent of the general population. See 1 in 5 would-be lawyers in nevada has had substance-abuse problems, by Cy Ryan Las Vegas Sun, Oct. 8, According to the Board of Governors for the State Bar of Nevada, almost 33 percent of disciplinary cases against lawyers involve underlying abuse, addiction, or mental health problems. Id. These statistics helped spur the Supreme Court of Nevada s amendment to Rule 210 via ADKT 478, which requires that all attorneys take a minimum of one CLE hour every three years on substance abuse, addictive disorders, and/or mental health issues. Special thanks to Mel Pohl, MD, FASAM (right), Director of the Las Vegas Recovery Center and to attorney Will Brown (left) for speaking at CCBA s recent substance abuse CLE seminar. The Disease of Addiction, provided a basis for attorneys to understand the disease of addiction / drug dependence. This educational component is critical in informing the legal profession about substance abuse and the fact that intervention can be effective in altering its destructive course. If left untreated, addiction can wreak havoc and even result in premature death. So if you know someone who is suffering from any sort of chemical dependency, whether that be alcohol, street drugs, or prescription drugs, there are a number of things you can do to help. Resolve to get help If you think you may be involved in the whirlwind of someone s dependency, seek help for yourself by attending Al-Anon, which will give you the tools to deal with the situation in a healthy manner. You can perform online research to educate yourself about the disease and its patterns; talk to a professional about the proper method to stage an intervention for the addict; or, most importantly, contact Lawyers Concerned for Lawyers, an organization dedicated to helping state bar members recover from alcohol and drug addiction, compulsive gambling, stress, or depression. All communications are strictly confidential and so you may contact them without fear that your attempt at assistance will result in discipline against your friend. Lawyers Concerned for Lawyers can be reached toll-free at (866) or directly at (775) When making your list of New Year s resolutions this year, resolve to make a difference. It may mean the world to a troubled, suffering colleague. Kimberly Buchanan is Senior Deputy Attorney General in the Public Safety Division at the Nevada Officer of the Attorney General, representing the Department of Motor Vehicles and the Department of Public Safety. She serves as President of the Clark County Bar Association through December COMMUNIQUÉ January

6 Bar Bar Briefs Briefs Court Changes This is a calendar of events and legal news for the southern Nevada legal community: Jan. 2: Deadline for Communiqué (February) Jan. 6: Judicial Candidate Filing Opens Jan. 16: Volunteer Appreciation Luncheon Jan. 17: Downtown Cultural Series Performance Jan. 17: Judicial Candidate Filing Closes Jan. 21: Community Service Committee Meeting Jan. 27: Trial By Peers Committee Meeting Jan. 30: Family Bench Bar Meeting Feb. 3: Deadline for Communiqué (March) Mar. 21: Downtown Cultural Series Performance Mar. 3: Deadline for Communiqué (April) Jan. 17: Downtown Cultural Series Performance Apr. 1: Deadline for Communiqué (May) Apr. 18: Downtown Cultural Series Performance May 1: Deadline for Communiqué (June/July) Ongoing: Open enrollment for Clark County Lawyer Finder All dates, locations, events details are subject to change without notice. Dates in red are official CCBA events. Call CCBA or visit for more information about CCBA events.. Bar Briefs is available as a weekly, message. Subscribe at or contact Steph Abbott at (702) or stephabbott@clarkcountybar.org. Errata In last month s issue (Communiqué, December, p. 13), an error was made in a caption to a photo listing an incorrect title for U.S. Magistrate Judge Cam Ferenbach. The author and the editors apologize to Judge Ferenbach and the U.S. District Court for any inconvenience this error may have caused. Clark County Court to Redistribute Over 600 Cases Effective January 6, 2014, over 600 cases will be redistributed amongst many other judicial departments at the Eighth Judicial District Court which serves Clark County Nevada. Per Administrative Order 13-06, the cases come from Department 1 s open civil caseload and Department 9 s entire criminal caseload. Affected cases from Department 1 will be randomly selected, transferred to, and equitably distributed among Departments 2, 3, 4, 5, 6, 8, and 10 through 32. Affected cases from Department 9 will be transferred to Department 1. In addition to this redistribution of cases, Department 1 will replace Department 9 in Track 59 of the Criminal Caseflow Model. Get all the details, a list of affected cases, and the new Criminal Caseflow Model from the 213 page-long order filed with the clerk of the court on December 18, 2013 at Supreme Court of Nevada Releases Annual Report On December 17, 2013, the Annual Report of the Nevada Judiciary for 2013 was released by the Supreme Court of Nevada. The report details the fiscal health and operation of the state court system. The report is available at For questions about the report, contact the court s Public Information Officer Bill Gang at (702) Supreme Court of Nevada Extends Short Trial Pilot Program. On December 6, 2013, the justices of the Supreme Court of Nevada signed an order in the matter of the amendment of the Nevada Short Trial Rules to provide for private jury trials. The order extends the pilot program from December 31, 2013 to December 31, The order cites the intention to collect data on the efficacy of the alternate trial program... For more information about the pilot program, the short trial rules, or to download a copy of ADKT 447, visit 6 January 2014 COMMUNIQUÉ

7 WE STANDWE B ESTAND HIND OUR B E HIND OUR VALUATIONS Confident opinions Confident with great opinions results. with great results. Robert M. Weinstock Business and Business Real Estate and Real Valuation Estate Professionals Valuation Professionals J D, CB A Rob Strategic Valuation Strategic Group s analysts Valuation and Group s appraisers analysts bring and together appraisers decades bring of together decades of experience in the valuation experience of closely-held in the valuation businesses, of closely-held real property businesses, and intangible real property and intangible assets. Our experts assets. provide Our wellexperts documented provide and well defensible documented valuation and defensible opinions for valuation opinions for estate planning, financial estate reporting, planning, and financial litigation reporting, purposes. and For litigation general purposes. inquiries, For feegeneral inquiries, fee quotes, or other valuation quotes, related or other questions, valuation please related contact questions, our office. please contact our office. Please contact us at: Please contact us at: (702) (818) (818) svgvalue.com svgvalue.com 1930 Village Center Circle, Suite 3-98, Las Vegas, NV Calabas as R oad, Suite1016, Calabas Calabas as R oad, as, Suite1016, CA Calabas as, CA Strategic Valuation Group, LLC Strategic Valuati Group, LLC COMMUNIQUÉ January

8 Leaders CCBA Executive Board President Kimberly A. Buchanan Office of the NV Attorney General President-Elect Damon Dias Dias Law Group Secretary-Treasurer Catherine M. Mazzeo Southwest Gas Corp. John P. Aldrich Aldrich Law Firm, Ltd. Tami D. Cowden Greenberg Traurig, LLP Nedda Ghandi Ghandi Deeter Law Offices James E. Harper Hall Jaffe & Clayton, LLP Brandon P. Kemble City of Henderson Macaire K. Moran Las Vegas Sands Corp. Kimberly R. McGhee Provident Trust Group Jennifer Roberts Lionel Sawyer & Collins Mariteresa Rivera-Rogers Wright Stanish & Winckler Jason Stoffel Roberts Stoffel Family Law Group Hon. Susan Scann Eighth Judicial District Court, Dept. 29 Member Moves On Thursday, December 12, 2013, the following members were elected to the 2014 CCBA Executive Board: John P. Aldrich,, Esq.* of Aldrich Law Firm, Ltd.; Nedda Ghandi, Esq.* of Ghandi Deeter Law Offices; James E. Harper, Esq.* of Hall Jaffe & Clayton, LLP; Brandon P. Kemble, Esq. of City of Henderson; Kimberly R. McGhee, Esq.* of Provident Trust Group; Mariteresa Rivera-Rogers, Esq.* of Wright Stanish & Winckler; and Judge Susan Scann* of the Eigth Judicial District Court *Denotes incumbent retained position. Positions are for two year terms beginning January Marquis Aurbach Coffing has appointed attorney David G. Alleman as chair of the transactional department at the firm. Phone: (702) dalleman@maclaw. com. Scott E. Chapman has relocated his office to 1497 Main Street, Suite 206, Dunedin, FL, Phone: (727) scottchap@outlook.com. Deanna L. Forbush has joined Haygood Cleveland Pierce & Thompson, LLP located at 500 S. Rancho Drive, Suite 17, Las Vegas, Phone: (702) Fax: (702) dforbush@hcpclaw.com. Kristina E. Gilmore has joined the City Attorney s Office at the City of Henderson, 240 Water Street, MSC 144, Henderson, NV Phone: (702) CCBA Past President Elana T. Graham and Sheri Sugar Vogel from the Southern Nevada Senior Law Program can be found in the program s new location at 530 Las Vegas Blvd. South, Suite #310, Las Vegas, NV Phone, fax, and remain the same. Marla J. Hudgens named as Chair-Elect of the Appellate Litigation Section of the State Bar of Nevada. 8 January 2014 COMMUNIQUÉ

9 Michael I. Kling completed his fifth annual LoToJa the 206-mile bike race from Logan, Utah to Jackson, Wyoming in one day. Michael P. Lowry s blog, Compelling Discovery was named to the ABA Journal s 7th Annual Blawg 100 list of top legal industry blogs. Sean David Lyttle is now associated with Hall Jaffe & Clayton, LLP, 7425 Peak Drive, Las Vegas, Phone: (702) Patricia A. Marr has opened her own practice. Patricia A. Marr, Ltd. is located at 4305 Dean Martin Dr., Ste. 185, Las Vegas, Phone: (702) Fax: (702) lvlaw03@yahoo.com. Matthew T. Milone can now be reached at the University of Nevada School of Medicine, 1664 N. Virginia Street, MS-1332, Pennington Med. Education Bldg., Reno Phone: (775) mmilone@medicine. nevada.edu. CCBA Past President Thomas Sheets, Of Counsel at McDonald Carano Wilson LLP, has been appointed to the Nevada Tax Commission by Governor Brian Sandoval. Richard E. Tanasi has opend his own practice, Tanasi law Offices, located at 1148 S. Maryland Parkway, Las Vegas, Phone: (702) Fax: (866) Israel P. Whitbeck has joined Benson & Bingham, Allerton Park Drive, Suite 100, Las Vegas, Phone: (702) Israel@benson@bingham.com. CCBA Publications Committee Chair and Communiqué s Editor-in-Chief Airene Williamson has relocated the Williamson Law Office, PLLC to 1645 Village Center Circle, Ste. 200, Las Vegas, Nevada Phone: (702) Fax: (702) The law firm of Kravitz, Schnitzer, Sloane & Johnson is now known as Kravitz, Schnitzer & Johnson. Their location, phone and fax numbers remain the same. CCBA members at that firm include Martin J. Kravitz, Gary E. Schnitzer, Jordan P. Schnitzer, M. Bradley Johnson, Timothy J. Geswein, Melanie D. Morgan, Chasen Cohan. Send submissions to stephabbott@clarkcountybar.org. How Can I Help? Glenn Meier is accepting work as a Mediator Arbitrator or Special Master Over 20 years of courtroom & litigation experience Excellent communication skills Available for travel Glenn Meier, Esq. Meier & Fine LLC gmeier@lasvegasmediations.com Calvin Y. Shin, Esq. Congratulations to Attorney Calvin Y. Shin, who started with Goldsmith & Guymon, P.C. after his second year of law school. Calvin received his J.D. from Pepperdine University School of Law in 2013 and his Bachelor of Arts in Psychology and Social Behavior from the University of California, Irvine in Calvin was sworn in as a Nevada attorney on Friday November 8, We are excited to add him as an attorney to our law firm. Calvin s practice will emphasize bankruptcy, estate planning and probate. Calvin s knowledge of the Korean language will be especially helpful as we continue to serve our community. Goldsmith & Guymon, P.C. Goldsmith & Guymon is a proud member of the Asian Chamber of Commerce. For more information on Goldsmith & Guymon, P.C. s areas of practice and articles of interest, please visit our websites at and COMMUNIQUÉ January

10 News& & Notes Bar Luncheon Highlights On Thursday, December 12, 2013, outgoing bar president Kari Stephens, Esq. hosted the CCBA President s Luncheon & Annual Meeting at Morton s The Steakhouse. This special event was sponsored by Bank of Nevada and featured a special presentation by Supreme Court of Nevada Associate Justice James W. Hardesty. Justice Hardesty addressed the need for a Nevada court of appeals. He encouraged bar members to learn more about the proposed amendment to the Nevada Constitution and to share the information with their colleagues, clients, friends, and service groups. Downtown Cultural Performance Highlights On Friday, December 20, 2013, at the City of Las Vegas Downtown Cultural Performance, Supreme Court of Nevada Chief Justice Kristina M. Pickering addressed the audience about the proposed amendment to the Nevada Constitution for the creation of a Nevada court of appeals. The arranges the appearance of speakers to address the audience before the City of Las Vegas concerts at the federal courthouse. Participation is limited to members of the who are Nevada attorneys or judges during the year of the performance. To find out which dates on the performance schedule are still available and to volunteer, contact Steph at the Clark County Bar Association, or stephabbott@ clarkcountybar.org. Notice from Southern Nevada Health District On December 15, 2013, the Southern Nevada Health District (SNHD) issued a Request for Qualifications (RFQ) to solicit qualifications and identify individuals to serve as administrative hearing officers in the areas of Environmental Health and Emergency Medical Services. Experience in the related areas is required. Hearings occur at least once per month and more often as needed. Submissions are due to the SNHD no later than 4:00 p.m. on January 31, For more information, visit the SNHD Web site at The RFQ package is also available via from Annette Bradley, bradley@snhdmail.org. Nevada Supreme Court Justice James W. Hardesty and CCBA President ( 13) Kari L. Stephens, Esq. CCBA Board Members Jason Stoffel, Tami Cowden, and CCBA President (13) Kari L. Stephens, Esq. Nevada Supreme Court Chief Justice Kristina Pickering addresses audience at Downtown Cultural Series. 10 January 2014 COMMUNIQUÉ

11 Panel of speakers at December 18 CLE seminar, Sports Law: Tarkanian vs. NCAA Precedent Setting Legal Battles & Their Impact (l-r): Marc Risman, Mike Leavitt, Chuck Thompson, Sam Lionel, Danny Tarkanian, and Jerry Tarkanian. Sports Law CLE (l-r): Danny and Jerry Tarkanian. Sports Law CLE (l-r): Marc Risman, Mike Leavitt, and Chuck Thompson. CLE Seminar Highlights On December 11, 2013, a very large group gathered at CCBA for the CLE seminar, The Disease of Addiction. The featured speaker was the medical director of Las Vegas Recovery Center, Mel Pohl, MD, FASAM. He was joined by special guest attorney Will Brown. The seminar sponsored by the Bank of Nevada and Depo International was designed for attorneys to understand the disease of addiction, drug dependence, the criminal justice system, and how attorneys can effectively intervene with their clients. The hour long seminar was recorded and will be available to rent from CCBA as a DVD, an.mp4 video file, or as an.mp3 audio file. On December 13, 2013, a very large group gathered at CCBA for the CLE seminar, 10th Annual Ethical Issues. The featured speaker was Dennis Kennedy, Esq., a partner at Bailey Kennedy, LLP. The seminar sponsored by the Bank of Nevada and Depo International and covered a broad range of legal issues for Nevada attorneys to consider as they represent clients and develop their practice. The two-hour seminar was recorded and will be available to rent from CCBA as a DVD, an.mp4 video file, or as an.mp3 audio file. On December 18, 2013, a small yet notable group gathered at CCBA for the CLE seminar, Sports Law: Tarkanian vs. NCAA Precedent Setting Legal Battles & Their Impact. Panelists included attorneys Mike Leavitt, Chuck Thompson, Sam Lionel, Danny Tarkanian and was moderated by attorney Marc Risman. They were joined by special guest, coach Jerry Tarkanian. The seminar sponsored by the Bank of Nevada and Depo International featured a panel discussion about the historic cases of Tarkanian vs. NCAA and their effect on sports law today. The three-hour seminar was recorded and will be available to rent from CCBA as a DVD, an.mp4 video file, or as an.mp3 audio file. COMMUNIQUÉ January

12 5 THINGS Nevada LAWYERS Should KNOW Five Things Every Practitioner Should Know About the Indian Child Welfare Act By Alyssa D. Campbell 1. What is the Indian Child Welfare Act? The Indian Child Welfare Act (ICWA), codified as 25 U.S.C. 1901, et seq., is a federal law passed by Congress to keep American Indian families intact. The law specifically addresses the removal of Indian children from their families because, historically, American Indian children were being removed from their families at an alarming rate and then being adopted by or placed with non-native families. The intent of Congress in creating ICWA was to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. 25 U.S.C ICWA also sets federal requirements that apply to both state and tribal child custody proceedings. Some states, such as Oklahoma, have also adopted state-level Indian child welfare acts. 2. When does ICWA apply? ICWA applies in any state court proceeding for the foster care placement of or the termination of parental rights to an Indian child. This includes state-initiated actions such as cases involving deprived, neglected, or delinquent children, cases in which the child is removed from the family, or adoption or termination of parental rights cases. ICWA also applies to cases involving guardianship and conservatorship of an Indian child in which the parent cannot have the child returned upon demand. 25 U.S.C. 1903(1). However, ICWA does not apply to divorce or paternity cases involving the biological parents of the child, regardless of whether the parents are Native American. 3. Who is an Indian child? ICWA defines an Indian child as any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. 25 U.S.C. 1903(4). Each Indian tribe determines the eligibility requirements for membership. 4. What is the legal practitioner required to do to comply with ICWA? ICWA requires the attorney for the party seeking the foster care placement of or termination of parental rights to an Indian child to notify the parents or Indian custodian, as well as the Indian child s tribe, by registered mail with return receipt requested of the pending proceedings and of the tribe s right to intervene. If the attorney does not know the identity of the child s tribe, the attorney may provide notice to the U.S. Secretary of the Interior in the same manner. Additionally, the attorney should insure that no hearing is held for at least ten days after receipt of the notice. 25 U.S.C What protections does ICWA provide for the Indian family? ICWA requires the state provide active efforts to the family in cases in which the state is involved. Active efforts is not defined by ICWA, but there are guidelines on this published in the federal register. ICWA also requires that placement preferences for Indian children be followed. 25 U.S.C In addition to requirements to notify the Indian child s tribe to allow for the tribe to intervene, ICWA also authorizes an Indian tribe to seek invalidation of an action when a party did not comply with the provisions of ICWA. 25 U.S.C. 1914, This article is intended to provide the legal practitioner with an awareness of ICWA. Indian law and ICWA are complex areas of law and the legal practitioner should exercise appropriate caution and diligence when undertaking cases of this nature. Alyssa D. Campbell is a partner with Legal Advocates for Indian Country, LLP and practices Indian law primarily in Oklahoma. 12 January 2014 COMMUNIQUÉ

13 From the State Bar of Nevada Nevada Family Law Practice Manual 2013 Edition NEW This recently revised manual provides up-to-date information on timely, modern day family law issues such as: MILITARY DIVORCES including how military divorces differ from non-military divorces and what extra steps need to be made ARTIFICIAL REPRODUCTIVE TECHNOLOGY including definitions of terms used in discussing Artificial Reproductive Technology DOMESTIC PARTNERSHIPS including how partnerships are recognized in other jurisdictions Family Law Section Members Receive a 15% discount. Call the bar at for more information! It sits on the corner of my desk and I refer to it daily. It is the definitive reference guide for family law in Nevada. John F. Keuscher, Anderson Keuscher, PLLC COMMUNIQUÉ January

14 Five Things Every Lawyer Should Know About Non- Compete Agreements By Chad D. Olsen In August 2012, the Wall Street Journal reported that [t]he number of published U.S. court decisions involving noncompete agreements rose 61 percent since Ruth Simon & Angus Loten, Litigation Over Noncompete Clauses Is Rising, Wall St. J., Aug. 15, 2012, at B1. To draft an enforceable non-compete agreement, counsel must consider the following: 1. Purpose An employer has the right to protect business information with non-compete agreements, provided the agreement is supported by valuable consideration and is otherwise reasonable in its scope and duration. NRS (4). If a non-compete agreement is unreasonably restrictive, ambiguous, or punitive, then courts may construe the agreement against the employer or void the agreement as against public policy. 2. Consideration In certain situations, consideration for non-compete agreements may include continued employment after the employee s agreement to the covenant. Traffic Control Servs. v. United Rentals Northwest, Inc., 120 Nev. 168, 87 P.3d 1054, 1059 (2004). Consideration may also include promotions, benefits, training, entrusting the employee with proprietary information, or garden leave, which is an English concept whereby the employer pays the employee during the period in which the employee is restrained from competing. See Greg T. Lembrich, Garden Leave: A Possible Solution to the Uncertain Enforceability of Restrictive Employment Covenants, 102 Colum. L. Rev (2002). 3. Duration The time in which the employee is restrained from competing must be reasonably limited in light of the particular circumstances of the employment. See Ellis v. McDaniel, 95 Nev. 455, 596 P.2d 222, 224 (1979). A non-compete agreement is unreasonable... if it is greater than is required for the protection of the [employer]... or imposes undue hardship upon the person restricted. Hansen v. Edwards, 83 Nev. 189, 426 P.2d 792, 793 (1967). Factors in determining reasonableness may include the employee s livelihood, harm to the employer, consideration, public interest in promoting business competition, the employee s age, and market demand for the employee. 4. Scope While courts often discuss the scope of a non-compete agreement in terms of geographic restrictions, whether an agreement is reasonable in scope also depends on the type of business or activity. [W]hen an employer s business is national in scope, an unlimited geographical scope may be reasonable so long as the field is sufficiently limited. Accelerated Care Plus Corp. v. Diversicare Mgmt. Serv. Co., No. 3:11-cv RCJ-RAM, 2011 WL , *4 (D. Nev. Aug. 22, 2011) ( In this Information Age, a per se rule against broad geographic restrictions would seem hopelessly antiquated. ). Restrictions as to the scope are reasonable if consistent with the scope of the employee s duties and limited to where the employee has established contacts and good will. 5. Waiver Although Nevada courts have not yet published opinions on these issues, non-compete agreements should include affirmations of the consideration and reasonableness, as well as waivers of the employee s ability to challenge the consideration and reasonableness. See Joe Virene, Ten Drafting Tips For Covenants Not To Compete, jdsupra.com/legalnews/ten-drafting-tips-for-covenantsnot-to-c-17328/ (Aug. 26, 2013). To satisfy waiver requirements, employers should include a space for signatures that specifically authorizes the waiver provision. Chad D. Olsen is an associate at Payne & Fears, LLP. Mr. Olsen handles matters involving employment law, business torts, contract disputes, construction defects, and insurance coverage. 14 January 2014 COMMUNIQUÉ

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16 Five Things Every Lawyer Should Know About Bankruptcy By Laura A. Deeter While the economy may be recovering, there are still thousands of bankruptcy cases filed every year, so you may find yourself or a client in the midst of a bankruptcy. Whether trying to collect your fees or protect your client s interests, here are five things every lawyer should know about bankruptcy. 1. What are the different bankruptcy chapters? There are three main types of bankruptcies. A Chapter 7 bankruptcy, or liquidation, is available to individuals or businesses who choose to liquidate all of their nonexempt assets. A Chapter 13 bankruptcy is available only to individuals and allows them to reorganize and enter into a structured plan allocating all of their disposable income (income after allowed expenses) toward the payment of their debts. A Chapter 11 bankruptcy is available to individuals and businesses and allows them to reorganize through a plan of reorganization with stringent requirements for debt payment in order for the court to confirm their plan. 2. Do I need to file a proof of claim? If you want to have any chance at being paid through a bankruptcy, you must file a timely proof of claim. In a Chapter 7, if there are non-exempt assets, you will receive a notice telling you to file a claim. In a Chapter 11 or 13, the notice of bankruptcy provides deadlines for filing your proof of claim. The form is available on the bankruptcy court website along with instructions. 16 January 2014 COMMUNIQUÉ

17 3. What does the bankruptcy trustee do? A bankruptcy trustee administers the bankruptcy estate on behalf of the creditors. A trustee is appointed by the court once a case is filed. The trustee has many duties, including preserving assets of the estate, liquidating assets of the estate, and making sure the debtor complies with applicable bankruptcy law. Chapter 7, 11, and 13 trustees also have other specific duties depending on the type of case filed. 4. What is the automatic stay? The automatic stay goes into effect as soon as a bankruptcy petition is filed. It prohibits any actions that attempt to collect a debt from the person or entity who filed the bankruptcy petition. However, the automatic stay will not stop any criminal proceedings against a debtor or cases determining child support or custody. Any contact made to collect debt after the filing of a case is sanctionable, and one must proceed with caution once the case is filed to see if the debt will remain collectable post filing. 5. What is a 341 meeting and should I go? The 341 meeting is a mandatory meeting of creditors, where the trustee questions the debtor regarding his or her bankruptcy filing to ensure the debtor has complied with all requirements. It also allows creditors the opportunity to ask the debtor questions regarding his or her bankruptcy filing. If you are a creditor and have questions regarding the Debtor s assets or bankruptcy petition, then you should attend. This is a small glimpse into the world of bankruptcy. If you have any questions regarding bankruptcy, please consult with an attorney who practices in the area. Laura A. Deeter is a partner at the Ghandi Deeter Law Offices. The firm practices in the areas of bankruptcy, family law, probate, and guardianship. Questions can be directed to Laura at laura@ghandilaw.com. PRUDHOMME LAW OFFICE 50 YEARS IMMIGRATION EXPERIENCE AV RATING M. Edwin Prudhomme Former Immigration Judge (702) Fourth Street, Suite 9, Las Vegas, NV COMMUNIQUÉ January

18 Five Things Every Lawyer Should Know About Federal Trademark Applications By Laraine Burrell and Nancy Ayala The apparent low-cost and perceived ease of the federal trademark application process may influence a nontrademark lawyer to file an application for a client. However, expensive problems arise if a lawyer is unaware of the following challenges to the federal trademark process: 1. Challenges from the United States Patent and Trademark Office (USPTO) examiner A USPTO examiner reviews a trademark application for priority of use and likelihood of consumer confusion and determines whether, under the Trademark Manual of Examining Procedure (TMEP), the mark is entitled to registration. If the examiner determines the mark should not be registered, she will issue an Office Action that explains why registration is denied. Responding to an Office Action may require the filing of a complex trademark brief arguing for registration. Only if the application overcomes the examination process can it move forward to the next stage, which is publication. 2. Challenges before the Trademark Trial and Appeal Board (TTAB) If the mark is approved for publication in the USP- TO s Official Gazette, third parties who believe they might be damaged by registration of the new mark have 30 days to file a TTAB Opposition proceeding during which the registration is opposed. An Opposition is a litigation proceeding that tracks the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and the TTAB Manual of Procedure (TBMP). It requires an early case conference, allows for discovery, and a trial or testimony period. The sole issue addressed in an Opposition is whether a mark is entitled to federal registration. No damages, attorneys fees, or costs are awarded. Therefore, the Opposition creates potentially expensive litigation without ability to recoup the money spent protecting a client s mark. 3. Challenges after registration A TTAB Cancellation proceeding is brought to cancel a mark that is already registered. The Cancellation is procedurally similar to an Opposition. The only issue in a Cancellation proceeding is whether a mark is entitled to retain its registration. 4. Challenges in federal court Trademark applications and registrations can also be challenged in federal court. Parties to a TTAB action can concurrently file a federal court action. The power behind a federal action is that other trademark and related claims can be asserted. Also, damages may be awarded and an injunction may issue that prevents a party from using the subject trademark. The court also has the authority to cancel a federal registration when appropriate. TTAB actions are typically stayed pending the resolution of a federal action. 5. Minimizing challenges Appropriate due diligence should be conducted before embarking on the federal trademark registration process, including using a trademark search service to identify other mark owners who might challenge your client s mark. Although non-trademark lawyers should become familiar with the Lanham Act, 15 U.S.C et seq.; the TMEP; and TBMP, they should seek guidance from an experienced trademark attorney who not only prosecutes trademark applications but also litigates trademark issues. Laraine Burrell and Nancy Ayala are intellectual property prosecution and litigation attorneys with Greenberg Traurig LLP. 18 January 2014 COMMUNIQUÉ

19 January Bar Luncheon Special Event Clark County B ar Association Volunteer Appreciation Luncheon Thursday, January 16, :00 to 1:00 p.m. Morton s The Steakhouse, 400 E. Flamingo Road, Las Vegas Doors open at 11:30 for luncheon check-in. RSVP with payment by Friday, January 10, Join outgoing CCBA President Kari Stephens as she thanks all the bar members and supporters who worked hard on bar events, programs, and commitees during the past year. Welcome incoming CCBA President Kimberly A. Buchanan and the 2014 Executive Board as they take their oath of office to serve the for the next year. Take a break. Catch up with colleagues. Support your local bar. RSVP WITH PAYMENT: Name Bar # Phone # Fax # Firm Name Address City State Zip Submit RSVP with payment to:, P.O. Box 657, Las Vegas, NV FAX: (702) PHONE: (702) Do NOT credit card info. ENTREE CHOICE: PRICE: Filet Mignon Chicken Christopher Pasta Primavera $40/CCBA Member; $45/Non-Member $ Amount of payment enclosed Check or money order is enclosed; or I authorize the CCBA to charge my credit account (circle one): AMEX Mastercard VISA Name of card holder: Credit Card #: Expiration date: Phone: Signature: COMMUNIQUÉ January

20 5 THINGS Nevada LAWYERS Should KNOW Five Things Every Lawyer Should Know about DUI Law By Craig Mueller 1. The under the influence theory of criminal liability in a DUI prosecution When an individual defendant receives a criminal complaint charging him with driving under the influence, different theories of liability are alleged. It is important to note that the prosecution is not required to prove all theories; merely one will suffice for the conviction of the defendant. The first theory is commonly referred to as the Under the Influence Theory. The complaint will state that on a certain date, the defendant was driving while under the influence of an intoxicant to any degree, however slight, which rendered him unable to safely operate a vehicle. 2. The presumption theory of criminal liability in a DUI prosecution The theory most prosecutors hang their hats on is the presumption theory. Under this theory the prosecution must merely show that the defendant was driving or in actual physical control within two hours of the evidentiary sample taken. Poor driving is not a factor in the prosecution, with most observers believing you could have won the Indy 500, but if the BAC was.08 or more, you have committed a crime. 3. Physical control of vehicle Physical control issues often appear, i.e. the driver was out of the car or sleeping when the officer arrived. What factors constitute criminal conduct are best outlined in Rogers v. State 105 Nev 230, 773 P.2d 1226 (1989). 4. Legality of the stop and subsequent detention. In order for law enforcement to stop a vehicle the officer must have reasonable suspicion. Reasonable suspicion is a legal standard in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an inchoate and unparticularized suspicion or hunch ; it must be based on specific and articulable facts. Under a traffic scenario, a violation of a moving vehicle statute or an administrative requirement (i.e. invalid license plate) is required. In order to arrest an individual, probable cause for the arrest must be established. Probable cause to arrest exists when police have trustworthy information of facts that are sufficient to warrant a person of reasonable caution to believe that a crime has been committed by the person held. In general, the Field Sobriety Test is used to establish probable cause to arrest. The standardized field sobriety tests include the Horizontal Gaze Nystagmus (HGN) test; the Walk and Turn Test; and the One Legged Stand test. 5. Evidentiary testing Under the law, if an officer has established probable cause that the driver is under the influence, he may seek an evidentiary test of breath, blood, or urine to determine the level of intoxication. The attorney should check if the breath machine was calibrated within the last ninety days. The blood test is required to be taken in a medically acceptable manner and tested by an expert who must be qualified in court. Craig Mueller is a long time resident of Nevada. After graduating high school in Las Vegas, he received an appointment to the United States Naval Academy and a subsequent commission in the Navy. After concluding his naval career, he attended law school and returned to Las Vegas. Craig s law career included a position with the Clark County District Attorney s Office as a prosecutor on the DUI team. He has subsequently practiced in the area of DUI for nearly twenty years. 20 January 2014 COMMUNIQUÉ

21 Bailment and Subrogation Law in Nevada CLE Seminar The CCBA CLE seminar program is sponsored by SPEAKER: Julie A. Mersch, Esq. Julie A. Mersch represents individuals with ERISA and insurance bad faith claims. She attended Boston College and received her J.D. from Washington University School of Law, St. Louis, Missouri. COURSE DESCRIPTION: This seminar will discuss the ongoing viability of common law bailment theories of recovery in Nevada and the interplay between the common law and NRS , as applied to hotels and casinos. It will also discuss implications to insureds, insurers, and third-party tortfeasors relating to a) claims for subrogation; b) standing to sue; and 3) double recoveries. This seminar offers 2 General CLE Credits Bailment and Subrogation Law in Nevada SEMINAR PRODUCED BY: A. Wayne Carter, Esq. for CCBA s CLE Committee Price: Save $$ with the CLE Passport! TOPICS: RSVP To CCBA: Amount Enclosed: $ $50/CCBA Member $30/Legal Asst/UNLV Law Student Member $40/Legal Asst/UNLV Law Student Non-Member $90/Non-Member Wednesday, February 12, :00 to 3:15 p.m. 725 S. 8th Street Las Vegas, NV History of Bailment Law in Nevada Holdings of Arguello vs. Sunset Station Implications of Footnote 4: Is NRS enforceable? Causes of Action/Affirmative Defenses Related to Stolen Property in Control and Possession of Another Practical Considerations Did you know that CCBA members can save money by using the CLE Passport? The CLE Passport provides admission to 12 CLE credit hours of CCBA CLE seminars for only $200! Get all the details from the CLE Passport order form available at at Or request the form to be sent to you via fax or . Call CCBA at (702) or Donna at donnaw@clarkcountybar.org. Name Bar # Phone # Firm Name Address City State Zip Type of Payment: I hold a 2013 CCBA CLE Passport and want to use it for this seminar. So, I am not enclosing payment. I want to purchase a CCBA CLE Passport ($200) and use it for this seminar. Check or money order is enclosed I authorize the CCBA to charge my credit account (circle one): Mastercard VISA AMEX Name of card holder: Credit Card #: Expiration date: Signature: Phone: Submit this form to:, P.O. Box 657, Las Vegas, NV or FAX to (702) Want to call in payment? Call CCBA at (702) COMMUNIQUÉ January

22 A View from the Bench of the Las Vegas Justice Court Cruz Control: New Courtroom Locations for Civil Cases By Chief Judge Karen Bennett-Haron The Las Vegas Justice Court s calendar assignments for the judges will be largely the same as they were in the 2013 calendar year. The main change will involve Judge Cynthia Cruz being assigned to a civil calendar and Judge Ann Zimmerman being assigned to a criminal calendar. Thus, the following calendar assignments will apply in the 2014 calendar year: Due to a limited amount of space in the Regional Justice Center, Judge Cruz is constrained to be a floating judge from courtroom to courtroom. Thus, Judge Cruz has designed a system that is intended to minimize disruption of the criminal calendars, while producing regularity and convenience for attorneys, court staff, real-estate agents, and other affected parties. Las Vegas Justice Court Calendar Assignments Department Judge Courtroom Location Designated Caseload Status as Compared to Calendar Year Lippis 7A Criminal No change from Sciscento 8B Criminal No change from Marshall 1B Criminal No change from Saragosa 7D Civil *New assignment 5 Cruz (See below) Civil *New assignment 6 Kephart 1A Criminal No change from Bennett-Haron 8A Chief Judge Calendar; Small No change from 2013 Claims Formal Objections; Q- Case Calendar; Water Bottle Calendar 8 Zimmerman 8D Criminal *New assignment 9 Bonaventure 6A DUI No change from Andress-Tobiasson 8C Domestice Violence No change from Goodman 7B Criminal No change from Sullivan 7C Criminal No change from Baucum 7D DUI No change from Hafen 8D Criminal No change from January 2014 COMMUNIQUÉ

23 On Mondays and Wednesdays, Judge Cruz will conduct civil proceedings on the 7th Floor along with Judge Melissa Saragosa. The applicable locations will be as follows: Judge Monday Wednesday Cruz Courtroom 7C Courtroom 7B Saragosa Courtroom 7D Courtroom 7D See the difference. On Tuesdays and Thursdays, Judge Cruz will conduct civil proceedings on the 8th Floor in Judge Zimmerman s courtroom, which is Courtroom 8D. Court Administration will have notices displayed prominently in the RJC lobby to remind parties and attorneys to review the INFAX monitor for specific hearing locations. Any questions about the revised calendar assignments for 2014 can be forwarded to Staff Attorney Joe Tommasino at (702) or via to tommj@clarkcountycourts.us. I also wanted to note that the Las Vegas Justice Court is currently involved in the recruitment process for a new Civil Division Administrator. Once that person has been hired, the Court will publicize his or her applicable contact information for the benefit of local attorneys who may need assistance regarding civil issues. Judge Karen Bennett-Haron was appointed to Las Vegas Justice Court Department 7 in May 2002 and has been twice elected to that position. Affordable, Online Marketing for Attorneys Offers 10 pages per subscription Offers two practice area categories Offers several sub-categories Links to firm s website Monthly or annual subscription plans available Multiple exposures, spot promos included Includes CCBA s Google AdWords campaigns No additional costs No set-up fees No cancellation fees Get details! Clark County Bar Assn. Steph Abbott (702) Serving Las Vegas for over 10 years S. 7th Street, Las Vegas, NV COMMUNIQUÉ January