Shimrak v. Garcia-Mendoza , 112 Nev. 246 ( 1996 )

Rose, J.,

with whom Shearing, J., agrees,

concurring in part and dissenting in part:

I agree with the majority that in Case No. 25100 the district court erred in dismissing Shimrak’s complaint on the basis of an accord and satisfaction. The evidence of an accord and satisfaction was ambiguous, and Shimrak may well be able to prove a set of facts which, if accepted by the trier of fact, would entitle him to relief.

I disagree with the majority in Case No. 25101 in its conclusion to enforce a contract which is against public policy. I would adopt a rule similar to the approach taken by New York. New York law provides that arrangements, such as the one in this case which call for attorneys to split fees, “violate^ public policy and, [are] thereby rendered unenforceable.” Gorman v. Grodensky, 498 N.Y.S.2d 249, 252 (N.Y. Sup. Ct. 1985). In Gorman, the court further stated:

Although the provisions of the Code of Professional Responsibility do not enjoy the status of decisional or statutory law, they are an explicit expression of the public policy of the State. An agreement made in violation of a code provision, ought not be sanctioned by the court, as would be the case if the court were to permit plaintiff to sue on the contract. The court will refuse to aid either party to enforce this alleged contract.

That the defendants may benefit from the court’s refusal to enforce a contract is irrelevant, if enforcement would further a purpose in violation of public policy.

Id. (citations omitted).

If, as Shimrak alleges, he entered into a contract for fee splitting, he should not be allowed to benefit. He was an insurance adjustor with thirty years of experience as a licensed private investigator and must have been aware of the legal profession’s ethical prohibition against fee splitting. To allow him to benefit by granting him a recovery on this contract, which is in violation of our Supreme Court Rules, would violate public policy. Therefore, I would declare the parties to be in pari delicto and allow neither to benefit from the contract’s impropriety.