December 2018 – Sin City


by Richard W. Millar, Jr.




This coming year, the ABA will hold its Midyear Meeting in Las Vegas. I believe it is the first time in its history that it will hie off to this desert wonderland, which it has heretofore avoided due to its history of debauchery. The “its” being Las Vegas, not the ABA.




The convention hotel is Caesar’s Palace, which, whatever its virtues, has never been accused of architectural understatement. According to rumor, a well-known comedian having a few too many after-show toddies drove his car into the main fountain at the hotel. As it and he were being extricated, he is reputed to have said: “no spray wax please.” I have never been able to get that visual out of my mind, and every time I hear the name of that hotel, I picture a giant Roman car wash.



My late uncle, Bob Millar, was a well-known bandleader, and his orchestra played long stints in Boston and New York as well as Las Vegas. One time, when I was young, I spent a few wonderful days with him at the “El Rancho Vegas. ” At one time, that was the largest hotel in the “strip,” which wasn’t much of a strip then, and a couple of stories was as high as a high-rise would get. The big act was Paula Kelly and the Modernaires, and I met and watched them from backstage. I was in hog heaven.



I have been back off and on a few times since, but, perhaps due to my partial Scottish ancestry, I am way too cheap to gamble, and the attraction of countless casinos frankly mystifies me.



But, I will be there this February and will undoubtedly meet some Las Vegas lawyers, which I look forward to.



With one exception.



That would be James Pengilly.



Mr. Pengilly was acting as his own lawyer in defense of a defamation suit in a deposition which went downhill quickly. One of his questions of the plaintiff was: “Do you know why everybody . . . calls you Big Bird?”



Unsurprisingly, this led to objections and argument, and Mr. Pengilly in explaining the relevance—at least to him—of the question, said: “Because apparently somebody thinks they are entitled to damages, and, in reality, they’re not entitled to anything, because somebody is the dipshit younger brother—”



[Deponent]: “Did you just call me a dipshit?”



[Mr. Pengilly]: “Yes, Dipshit, Yes.”



A few “F”-grenades were launched, which caused the deponent’s lawyer to presciently observe, “No good—no good can come from this.”



The court reporter, who deserves whatever medals of valor are available to court reporters, stayed and continued to take everything down.



[Deponent’s lawyer]: “What are you doing now? If you pull the gun, I’m going to call the police.”



[Pengilly]: “Get out of here. Get out of here right now.”



After some more back and forth, the deponent and his lawyer left, and the reporter, undoubtedly with a sigh of relief, asked: “Are we off, now?”



This, of course, led to a disciplinary proceeding, and then to an automatic review by the Nevada Supreme Court. It noted that both the deponent and his attorney were afraid Mr. Pengilly would shoot them, and they had immediately called the police, filed police reports, and filed for a protective order and grievance proceedings.



While Mr. Pengilly argued that his conduct in displaying a gun should be considered under a negligence standard, and I am not sure why he thought that was a good argument, the Supreme Court noted:



Further there was the potential for serious injury to everyone present—the deponent, his attorney, the court reporter, Pengilly’s office staff, and even Pengilly himself—because a deadly weapon was involved.



The court suspended Mr. Pengilly from the practice of law in Nevada for six months and one day, and no, I don’t know why the “one day” but assume it has some legal significance, and ordered him to pay $2,500 in administrative costs plus the costs associated with the disciplinary proceedings.



It seems to me that if there is a true hero in this case, it is the court reporter, and the lesson to be learned is that:



Not everything that happens in Vegas, stays in Vegas.




Richard W. Millar, Jr. is Of Counsel with the firm of Friedman Stroffe & Gerard in Irvine. He can be reached at rmillar@fsglawyers.com.