Q&A: Kathleen England

Steve Marcus

Kathleen England, president of the State Bar of Nevada, is shown at the bar offices Sept. 4.

By Buck Wargo

Fri, Sep 18, 2009 (3 a.m.)

Kathleen England fights for those who battle against discrimination and victims of sexual violence.

Now, the outspoken England has another cause as the new president of the State Bar of Nevada.

England, 56, a Boston native who moved to Las Vegas in 1978 to work in the city attorney’s office, has her own practice, England Law Office.

England was the first chairwoman of the Las Vegas Ethics Review Board and has been active in the community through such organizations as Shade Tree Shelter for women and children and as a volunteer trainer for the Rape Crisis Shelter.

IBLV: Why did you pursue a career in law?

England: My great-grandfather was a lawyer in New York City, and I am the first one in the family since him. I like to argue. I always thought it was the best way to help other people. My kindergarten teacher remarked to my parents on my ending report card that sometimes I liked helping other people even when they didn’t want to be helped.

Why did you switch to private practice in 1982?

I left the city attorney’s office and went to what was then Vargas & Bartlett, which was one of the largest private law firms. It was time. I spent my time doing public work, and I wanted to be a trial lawyer and do more litigation. That was the beginning of the MGM Grand fire case.

I then left and started my own firm and did that for a number of years and then went back to my old firm and stayed there for a little while and left again.

Why did you leave again and start your own practice?

My practice has evolved, as I hoped it would, into primarily a plaintiff’s practice for civil rights. I represent victims of discrimination and victims of sexual assault and litigate those cases, mostly in federal court. That kind of practice really doesn’t lend itself to being in a big corporate setting. They did primarily defense work.

Why do you practice that type of law?

I guess because I think the law is the best way to effectuate change. For me, it is giving back to the community. I get to give back to people who have been harmed or injured, and I get to help bring them justice.

The kind of law I do I would hope would go away. I wish there would never be any more discrimination, and I could go do architectural engineering malpractice and never have to try a discrimination case. That would be great.

But isn’t that a practice in which you don’t have clients with a lot of money?

Nearly all of my cases are on a contingency basis because people couldn’t afford to pay me my hourly rate. I don’t get paid until the case resolves or is settled. I have to win. You can invest lots and lots and lots of time into a case, but if you don’t win, you don’t get paid. It is kind of a risky way to earn a living.

You have served on several commissions and boards, including the Nevada Supreme Court’s Gender Bias Task Force in the mid-1980s. Why is that?

All for different reasons. The gender bias is that when I moved to Nevada, I was one of the first 100 women admitted to practice here. That was in 1978. There was a lot more gender bias in 1978 than there is now. We had very forward-looking members of the Supreme Court who thought we ought to look at those kinds of biases in the justice system. Because I have a big mouth and complained about it a lot, they put me on the commission.

How has the status of women in the law changed over the years?

Almost one third of our active lawyers are women. That is very different from when I got here. I think that is important. Everybody thinks differently. We are not monolithic.

What has been your involvement with the State Bar of Nevada?

I have been on the Board of Governors for nine years. This is my ninth and last year. There are 15 of us. We are elected to two-year terms, and we are term limited to four terms. If you’re in your eighth year and you are elected president-elect, you can serve a ninth year. So that’s how it happened.

But how do you become president?

It is a natural progression. I think we have many people who served on the board with me in my class who served very ably that have different skill sets than I do, and some of them went on to bigger and better things.

What is your role?

The State Bar, through the Supreme Court, is in charge of the regulation of the profession for the protection of the public. The State Bar does admissions to the practice of law, disciplines practitioners and otherwise regulates the profession. It also provides two sets of services, one to members and the other to the public. The State Bar has an important function in protecting the public, part of which is done by disciplinary functions, disbarring people who steal a client’s money or commit infractions that demand their license be taken away. As the bar president for a year, I simply sit atop the board that regulates that profession. We have a professional staff of 42 who actually provide all the service. Our board is a policymaking board.

How many members are there?

We have 9,500 members and 7,700 are active.

How much are dues?

It is a graduated scale. Inactive starts at $125. The new lawyers pay $250. After five years, we go to $500. It stays flat after that until you reach emeritus status and it goes down.

Is the State Bar revenue down and what is the budget?

We are not feeling that yet. We have seen a few more lawyers move from inactive to active. Six million dollars.

Where does the revenue come from?

Member dues are 49 percent of our revenue. The other is from legal education programs and lawyer referral, and publications.

What are your goals this year?

I would say probably most importantly is to increase and improve the services to our members and our public protection component as well. The kinds of services we do for our members are primarily legal education, providing client security, some of the grants that we make through our lawyer referral service. And just stay on top of regulating the profession. Over the past few years, we are making information that ought to be public about lawyers more accessible. For example, if a member of the public is going through the phone book looking at the ads for lawyers and wants to know if that person has had any disciplinary proceedings against them, they can do that now through the Internet. We think that is incredibly important, so you don’t have to call us and speak to someone on the phone. The public can just go and find out that information on our Web site.

Any other goals?

My personal goal is to get more of our members involved in bar activities and involved in governance and regulation of the industry and protection of the public. I am a big tent kind of person. Our bar has gotten more diverse. The profession has changed and the regulation of the profession needs to change.

How is that?

We work closely with the Supreme Court. Most of our regulations, whether it is lawyer advertising or referrals or bar discipline, are all set by Supreme Court rules. So it is our job to bring to the justices how to better improve those rules. We are trying to figure how to be more responsive to issues facing our members.

What are those issues?

No. 1: We are in a terrible economic crisis. How is that going to affect our members? Does it translate to disciplinary problems? Does it translate to financial hardship? Does it translate to bigger stress loads on private practitioners themselves? Does it also indicate that there are other openings becoming more important and are we offering bar services such as continuing legal education so they can become proficient in those types of practices?

How concerned are you about the economy and its effect on lawyers and disciplinary problems?

I don’t yet think we are able to see that trend. For us to know about a transaction, it means that the client who believes she has been wronged needs to a file a complaint with us. So if the infraction is occurring now, the client is not figuring it out for a few more months, and then we won’t see it for maybe a month or two after that.

But you are concerned?

Very concerned. Financial stresses make people do crazy things, and regrettably it makes lawyers do stupid things. We need to be ready for that.

Don’t you have a fund that helps people if they are wronged by an attorney?

Every bar member, as part of their dues, pays $25 and that goes into the client security fund. It is there to allow us to compensate people who had their money stolen by lawyers. It is not an insurance policy, and we couldn’t begin to tax everyone enough to be able to compensate. For clients who believe their lawyer has stolen money from them, the lawyer has to have been disbarred. That way we know there is a definite proof that the lawyer has done something wrong. The client can make a claim to our client security fund. We have a group of lawyers that take a look at each and every claim, and at the end of the year we decide how much we can give out to each claim. We set the rules so we can maximize what we can give people, but generally we have about $200,000 a year to hand out among all the claims. The maximum is $50,000.

What are other effects of the economy?

We have seen that fewer people took the bar exam this summer. That doesn’t really track the trend which we know in past economic recessions when there is that, it generally leads to an increase in the number of people going to graduate school. We are not sure whether that translates into more people going to law school, but we are not going to see that for three years. What we are seeing right now is that 20 percent fewer took the bar exam this summer — about 350.

Is that good or bad?

I am not sure. I welcome people into our profession. I welcome growth in our profession. I understand as a Nevadan that part of our state’s success is that we have had growth. Does that reflect that people who practice in California and probably think our streets are paved with gold now think that this is not the place to move to or is this first-time takers? We haven’t drilled down into those numbers to know the trend. If it is really expensive to go to law school this year, we might not see the trend drop until three years from now.

How tough is it to pass the bar these days?

When I took it, it was an 88 percent pass rate. Now it’s a 60 percent pass rate. There is probably a number of reasons for that. The law has gotten more complex. There is a lot more to know. Nevada law has gotten more complex. When I took it, there were only 110 of us taking it once a year. Now there are 350. I also think that people are taking it who might not want to practice law, so this isn’t their skill set. They went to law school for three years and thought they would take the bar exam.

What about layoffs in law firms?

It is a concern here, and we know some of the larger firms in Nevada have had to lay off associates. We know some of the larger firms have merged with other firms. We know other firms have done what the bigger firms have done, which is deferring people from being hired. What’s happening is you were supposed to be a first-year associate so they say don’t come on board this September. We will pay you half of what we promised you to sit out and then we will look at you next year. We also know that a lot of firms who had very numerous and vibrant summer associates positions — when you hire them between their first and second year in law school and second and third years of law school — that they cut way back. That is normally where big firms would hire their associates. They are trying to spend money more wisely and be more efficient.

So how is all of this affecting those new to the legal profession?

I think it is harder for new law grads to get jobs because the firms are not hiring like they were five years ago. Of concern to us at the bar is that these new grads are opening their own business. It is hard enough practicing law. It is really hard to practice law and run a business at the same time. Those are the type of services that we are in the process of developing for our members — how to run an ethical business that complies with all the regulations. Unlike a normal businessperson, if you went out and opened a 7-Eleven, you would a have payroll account and general account and you would have to comply with all the licensing fees. If you are a lawyer, you have a lot more things to do. You have to have a trust account. You have to have a general account. You probably need an accountant, a banker and a lawyer. You need to decide whether you are going to be a subchapter S-corporation or a limited liability corporation. You have to comply with all the Supreme Court rules about trade names and how you have to practice law and how you have to notify the bar. You have to make disclosures to your potential clients. Those are the kinds of things that if you are going to become a new businessperson, the layer of regulation is much greater and the bar is helping those practitioners try to do it well.

What other changes are taking place in the profession because of the economy?

What we are seeing, for example, there are certain aspects of the law that (had) explosive growth. They generally track the same kind of explosive growth the economy had — construction defect was a huge part the legal scene four or five years ago. Well, construction has stopped, so one can assume it is going to be a ripple effect. There were a lot of firms that moved here from Southern California that had expertise in construction defect and they hired associates, lateral associates and the like to do all these construction defect cases. And now the cases have resolved themselves and there are no more in the pipeline. So then the question is are those skills that you acquired as a construction-defect lawyer translatable. I don’t think you will be doing civil rights litigation, but perhaps those skills are. I think we are starting to see people branching out.

What other segments are affected?

I am guessing mergers and acquisitions is one. Where one area of the law goes down, another goes up. Bankruptcy lawyers — that’s the new black. Not that it hasn’t been, but we see from bankruptcy filings here what the court publishes that is an explosive area of growth, sadly so. Medical malpractice has gone up or down depending on what the Legislature has done. Every time the Legislature passes law that affect people’s access to justice, you see that ripple effect in the legal community. When Sheriff (Doug) Gillespie says he’s going to put 100 new cops on the street, what does that mean? That means you have to have DAs, deputy DAs and public defenders and criminal lawyers equipped to handle that. That means you need more judges and you need more court clerks. The more that is spent on the criminal justice system to bring more people into that justice system, the more you need lawyers.

How is the economy affecting pro bono work?

It is clear that there are far more people who need pro bono lawyers. If you lost your job and are about to lose your house and you are about to get divorced, you don’t have as much money to spend on your divorce. You might not have the $250 or might not have the $5,000 to get into a dispute with your soon-to-be ex-spouse. Also, in Nevada, so many people are underwater in their homes — generally that used to be the primary marital asset. So what’s the impact of the falling housing market? It has a terrible effect on people to arrange their personal life in a domestic relationship. I think there are a lot more people who qualify for pro bono services, but there are not as many lawyers who are able to provide those services. I know that we have seen an increase. There are lots of Nevadans who need pro bono services, but can’t get them because all of those agencies are struggling mightily to provide those services.

What does the bar do with those legal service agencies?

We support them in a couple of different ways. No. 1 as part of our aspiration goals, we suggest as part of our professionalism, that all attorneys engage in some pro bono activity. We ask them to report it to us. It is not mandatory that you do it, but it’s mandatory that you report it. We are very supportive of the activities of all the legal services providers for the needy here in Southern Nevada and across the state. Many of our board members sit on the boards of all those legal service providers. Our members donate time and money to all of those legal service providers. We have some lawyers who do lots and lots of pro bono work.

And you give grant funds to those organizations?

That grant money that we have is from our lawyer referral. We gave out $180,000. You give a lot of bang for your buck when you give it to legal service providers. Nevada Legal Services — they do lots of landlord-tenant as opposed to Legal Aid that does mortgage foreclosure issues. And they do some discrimination issues and lots of consumer credit issues.

What are your concerns about the justice system?

My biggest concern is that the justice system be open, accessible and fair and that the public have that perception and understanding that it is. I believe that it is fair. I share some of my concerns with my fellow bar members about the election of judges and difficulty that judges face when they have to raise money and run in campaigns. We all worry about that, but I am concerned about people not having access — that justice appears expensive. The justice system is a place to resolve disputes. And if that’s the only way you can go get divorced, we should make it easy in some way and we should make it accessible for everyone who wants to get divorced. It shouldn’t be only rich people who can get divorced. That always concerns me and many of our members.

What is your opinion about the election of judges.

I am deeply troubled by the possibility of a corrupting influence of having to raise campaign money. On the one hand, I see that the election of judges has made the process more open. It concerns me that minorities and women can’t get in that pipeline except by election. But on the other hand, it really concerns me that judges have to raise money from the people who have to appear in front of them.

What are the options?

I am not fully familiar with the all the ideas. I don’t think Nevada would ever go for public financing, especially in a recession. I am very intrigued by the idea of retention elections, proper evaluations of judges and candidates. I wish the media did a more thorough vetting of people running for office.

Senate Joint Resolution 2 calls for the merit selection of judges, and Senate Resolution 9 calls for an appellate court. Where does the State Bar stand?

I’m mindful of SJ2 and SJ9 and our bar has taken a position already. The position is that they are in favor of it. It is not an easy question to answer for lawyers because no system appears to be perfect. There are legitimate criticisms of every system on Earth.

Because of the type of law you practice, diversity is important to you. Why is that?

I told you I love to argue. I think that’s better. I believe in wisdom of community and a number of people challenging each other. I like to think we are a smart profession. I think we are committed and caring. We, as lawyers, embody what’s best about the justice system. That’s what we fight for. You may not like us much, but if you need us, we look a little bit better.