Date: Sep 22, 2026

Nevada: Fee-Splitting Alone Does Not Create a Joint Venture for Malpractice Vicarious Liability Without Shared Control and Loss-Sharing

1. Introduction

In HARPER v. BRUCE G. FAGEL, A LAW CORP. (Nev. Sept. 15, 2026) (No. 88807), the Supreme Court of Nevada affirmed summary judgment for a law firm accused of being vicariously liable for alleged malpractice committed by out-of-state lead counsel in settling a Nevada medical-malpractice case.

After a work-related injury in Arizona, Daria Harper received treatment in Las Vegas that allegedly resulted in quadriplegia. Harper received workers’ compensation benefits through CopperPoint Mutual Insurance Company. Harper and her husband retained California attorney Kenneth Marshall Silberberg to sue Nevada medical providers. Silberberg associated Nevada lawyer Thomas Alch as local counsel (to satisfy SCR 42(2)). At the time, Alch worked for respondent Bruce G. Fagel, A Law Corporation (“Fagel Law”).

The case settled for $6.5 million. Harper later alleged Silberberg incorrectly advised that CopperPoint had no lien right in the settlement—advice rejected in Harper v. CopperPoint Mut. Ins. Holding Co., 138 Nev. 300, 509 P.3d 55 (2022). Harper sued Silberberg, Alch, and Fagel Law for malpractice. As to Fagel Law, Harper’s theory was vicarious liability, chiefly that Fagel Law and Silberberg formed a joint venture via a fee-sharing arrangement (Silberberg promised Fagel Law 50% of contingent fees; Fagel Law would share 10% with Alch).

The district court granted summary judgment to Fagel Law and certified the judgment as final under NRCP 54(b). The Supreme Court affirmed, holding that even if profit-sharing was factually disputed, the record could not support the essential joint-venture elements of shared control and loss-sharing.

2. Summary of the Opinion

Standard of review: Summary judgment reviewed de novo.
Joint venture elements: Nevada requires (1) an agreement to share profits, (2) an agreement to share losses, and (3) shared control (for vicarious-liability purposes).
Profit-sharing: The court held there was a genuine issue of material fact because a factfinder could reject the attorneys’ characterization of the large shared fee as merely a “gift” for prior referrals.
Shared control: No evidence supported shared control by Fagel Law over litigation strategy or settlement; the plaintiffs’ own testimony established Silberberg’s sole control.
Loss-sharing: No evidence supported a loss-sharing agreement; the contingency fee agreement placed responsibility for costs on Silberberg alone, and Fagel Law’s costs/time did not amount to the contemplated “losses” for a contingency-fee tort action.
Result: Summary judgment for Fagel Law affirmed because the absence of essential elements (shared control and loss-sharing) made other disputes (including profit-sharing) immaterial to joint-venture vicarious liability.

3. Analysis

3.1. Precedents Cited

A. Nevada’s summary judgment framework and “missing element” principle

Wood v. Safeway, Inc., 121 Nev. 724, 121 P.3d 1026 (2005): Provided the governing standard—summary judgment is proper when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.
Nuleaf CLV Dispensary, LLC v. State, Dep't of Health & Hum. Servs., 134 Nev. 129, 414 P.3d 305 (2018): Confirmed de novo appellate review of summary judgment.
Weddell v. H2O, Inc., 128 Nev. 94, 271 P.3d 743 (2012), abrogated on other grounds by Tahican, LLC v. Eighth Jud. Dist. Ct., 139 Nev. 11, 523 P.3d 550 (2023): Reinforced that statutory/contract interpretation issues are reviewed de novo (important to the court’s reliance on the written contingency agreement as objective evidence of cost allocation).
Barmettler v. Reno Air, Inc., 114 Nev. 441, 956 P.2d 1382 (1998): Central to the outcome—if an essential element is absent, disputes about other elements become immaterial and summary judgment is proper. This principle allowed affirmance despite a triable issue on profit-sharing.

B. Defining “joint venture” and the necessity of shared control

Bruttomesso v. L.V. Metro. Police Dep't, 95 Nev. 151, 591 P.2d 254 (1979): Supplied Nevada’s definition—joint venture entails an agreement to share profits and losses (a foundational element the court used to reject Harper’s loss-sharing argument).
Restatement (Second) of Torts § 491 cmt. c (1965): Provided the joint-enterprise liability requirement of “an equal right to a voice in the direction of the enterprise,” i.e., shared control, which the court treated as indispensable for vicarious tort liability.
Radaker v. Scott, 109 Nev. 653, 855 P.2d 1037 (1993): Cited for the control concept—joint venture supported where “both parties could control the actions of the other to a certain extent.” The court contrasted Radaker’s mutual control with Silberberg’s undisputed sole control here.
L.V. Mach. & Eng'g Works v. Roemisch, 67 Nev. 1, 213 P.2d 319 (1950): Noted joint participation in conduct of the business as an essential element; used to emphasize that passive or ministerial involvement is not “joint participation” in the relevant sense.

C. When joint venture is a fact question vs. a legal question

Armor v. Lantz, 535 S.E.2d 737 (W. Va. 2000) and DLZ Ind., LLC v. Greene County, 902 N.E.2d 323 (Ind. Ct. App. 2009): Supported two propositions adopted by the Nevada court: (1) joint venture usually is for the factfinder; but (2) it becomes a legal question appropriate for summary judgment when it can be resolved on undisputed facts or an unambiguous contract.

D. Profit-sharing disputes and “gift” characterizations

Wachovia Bank, N.A. v. Jones, Morrison & Womack, P.C., 42 So.3d 667 (Ala. 2009): Used as an example that fee-splitting can evidence profit-sharing for joint venture analysis in attorney arrangements.
Martin v. Jennings, 29 S.E. 807 (S.C. 1898): Cited for the proposition that “gift” intent is a fact question; the Nevada court relied on this to hold that the district court improperly treated the “gift” explanation as undisputed at summary judgment.

E. Local counsel relationships and reluctance to impose vicarious liability

Charles W. Wolfram, Modern Legal Ethics 237-38 (practitioner's ed. 1986) and Ortiz v. Barrett, 278 S.E.2d 833 (Va. 1981): Supported the court’s caution that pro hac vice/local counsel arrangements often involve passive local counsel roles, and courts should be reluctant to impose vicarious liability absent near-equal responsibility, authority, and (critically) control.
Armor v. Lantz, 535 S.E.2d 737: Also reinforced that absent evidence of shared control, local counsel (or affiliated entities) should not be held vicariously liable for lead counsel’s malpractice.

F. Loss-sharing in attorney contingency matters and third-party perspective

Hook v. Giuricich, 108 Nev. 29, 823 P.2d 294 (1992): Cited to underscore loss-sharing as a meaningful element in Nevada joint venture analysis (and that its presence/absence can be dispositive).
Foote v. Posey, 330 P.2d 651 (Cal. Ct. App. 1958): Emphasized that, for third parties, the question is what they had the right to believe from contracts and conduct—supporting reliance on the contingency agreement as objective evidence that only Silberberg bore costs.
Botsford v. Van Riper, 33 Nev. 156, 110 P. 705 (1910): Referenced for analyzing shared losses in joint venture contexts, reinforcing that loss-sharing is not a mere formality.
Thompson v. Hiter, 826 N.E.2d 503 (Ill. App. Ct. 2005): Invoked to highlight the significance of who is named in the client’s contingent fee agreement; here, only Silberberg was contracted with, cutting against an inference that Fagel Law assumed litigation cost risk.
In re UNR Indus., No. 82 B 9841 - 82 B 9851, 1984 U.S. Dist. LEXIS 16233 (N.D. Ill. May 31, 1984): Used to illustrate that disproportionate allocation of losses (one party bears essentially all risk) undermines a loss-sharing inference.
Am. Equity Ins. Co. v. Beck, 108 Cal. Rptr. 2d 728 (Cal. Ct. App. 2001); rev. granted, Am. Equity Ins. Co. v. Beck, 31 P.3d 1270 (Cal. 2001), aff'd on other grounds, Beck v. Wecht, 48 P.3d 417 (Cal. 2002): Cited for the proposition that in contingency fee tort actions, the ordinarily contemplated “loss” is the loss of advanced costs if there is no recovery—supporting the court’s focus on who advanced and contractually bore costs.

G. Authorities reinforcing that profit-sharing alone is insufficient

Fry v. Shaw, 508 S.W.2d 142 (Tex. Ct. Civ. App. 1974): Direct support for the court’s approach—profit-sharing without joint control and loss-sharing does not establish a joint venture.

H. Nevada-specific point about fee division and “joint responsibility”

The opinion contrasted MRPC r. 1.5(e)(1) with Nevada’s rule as described by the court (“NRCP 1.5(e)(1)” as quoted in the opinion). The court used this contrast to reject an inference that fee-sharing implies “joint responsibility” (and thus control) in Nevada.
Duggins v. Guardianship of Washington, 632 So. 2d 420 (Miss. 1993), superseded by statute on other grounds as recognized in Pettis v. Simrall, 354 So.3d 295 (Miss. 2023): Provided a counterexample from a jurisdiction where a 50/50 split supported joint control; Nevada declined to adopt that inference given its different professional conduct framework.

3.2. Legal Reasoning

Framing the dispositive theory: Harper sought to hold Fagel Law liable not for its own negligence, but under vicarious liability by proving a joint venture with Silberberg (and/or via Alch).
Element-by-element analysis with “missing element” discipline: The court treated shared control and loss-sharing as essential, independent requirements. Under Barmettler v. Reno Air, Inc., the absence of any essential element entitled Fagel Law to judgment, regardless of disputes about other elements.
Profit-sharing: The court held that the district court improperly weighed credibility by accepting the “gift” characterization as fact. The amount of the fee ($540,026) and the structure of the split could support a reasonable inference of profit-sharing, creating a genuine issue of material fact.
Shared control: The court found the record one-sided: Harper and Wininger testified Silberberg controlled “direction” and “handling” and had “sole control and direction.” The court treated local counsel actions (filing, pro hac vice sponsorship under SCR 42(14), paralegal filing assistance) as ministerial/necessary-to-file tasks that do not amount to control over strategy, settlement valuation, or decision-making. The court also found a timing break: Alch left Fagel Law eight months before the mediation where the alleged malpractice occurred, further severing any plausible inference that Fagel Law controlled settlement conduct.
Rejecting a “fee split implies joint responsibility” shortcut in Nevada: The opinion’s significant Nevada-specific move is doctrinal: because Nevada’s professional conduct rule on fee division (as described in the opinion) omits the Model Rule’s “joint responsibility” alternative, Nevada courts will not presume shared control merely from a fee division.
Loss-sharing: The court relied heavily on objective evidence of risk allocation: the contingent fee agreement (client + Silberberg only) stated that if no recovery, Silberberg “shall be responsible for all costs.” Fagel Law’s costs were minimal (< $3,000) and reimbursed; Silberberg advanced substantial expert/litigation costs ($125,070+). The court rejected the argument that the “loss” of Alch’s time constituted the requisite loss-sharing agreement, especially where Fagel Law did not appear and its involvement was limited.
Disposition: With shared control and loss-sharing absent as a matter of law on this record, summary judgment was affirmed even though profit-sharing presented a factual dispute.

3.3. Impact

Higher bar for vicarious malpractice liability against “associated” firms: Plaintiffs cannot rely on fee splits and nominal local counsel tasks alone to impose joint-venture vicarious liability; they must show evidence of shared strategic/settlement control and an agreement allocating downside risk.
Litigation and risk allocation will turn on documents and testimony about control: Engagement letters, cost-advance provisions, decision-making protocols, settlement authority communications, and who appears/controls mediation will likely become central discovery targets.
Nevada diverges from jurisdictions inferring “joint responsibility” from fee division: By emphasizing the absence of the Model Rule’s “joint responsibility” language (as described in the opinion), Nevada provides defense leverage for firms that receive referral/association fees but do not control the litigation.
Procedural significance: The decision also illustrates how NRCP 54(b) certification can isolate and accelerate appellate review of a discrete defendant’s liability theory, even while claims proceed against other defendants (here, Silberberg and Alch).

4. Complex Concepts Simplified

Vicarious liability: Holding one party liable for another’s wrongdoing because of a qualifying legal relationship (e.g., partnership or joint venture), even if the first party did not personally commit the negligent act.
Joint venture (in Nevada, as used here): An “informal partnership” requiring (i) profit-sharing, (ii) loss-sharing, and—when used to impose tort liability—(iii) shared control over the enterprise.
Shared control: Not just the ability to file papers or satisfy a local counsel requirement, but a meaningful right to participate in directing strategy and key decisions (especially settlement decisions).
Loss-sharing: Agreement to share the downside if the enterprise fails. In contingency-fee tort cases, courts often focus on who bears advanced litigation costs if there is no recovery.
Pro hac vice / local counsel (SCR 42): A process allowing an out-of-state lawyer to appear in a Nevada case with a Nevada-licensed lawyer acting as local counsel. This case clarifies that the arrangement alone does not establish a joint venture for malpractice liability.
Summary judgment: A pretrial ruling that ends a claim when the evidence, viewed favorably to the nonmoving party, still cannot satisfy the legal elements required to win.

5. Conclusion

The Nevada Supreme Court’s core holding is that a fee-splitting arrangement—even one that may constitute profit-sharing—does not, by itself, create a joint venture that supports vicarious malpractice liability. For that theory to proceed, the plaintiff must present evidence of shared control over the litigation (especially settlement) and an agreement to share losses. Because the record established Silberberg’s sole control and placed cost risk on him alone, Fagel Law was entitled to summary judgment as a matter of law, notwithstanding a factual dispute over whether the fee payment was a “gift” or profit-sharing.