NEVADA ATTORNEY DISCIPLINARY PROCEEDINGS, GRIEVANCES AND COMPLAINTS
Our law firm is defending more and more attorneys from Southern Nevada against grievances filed with the State Bar of Nevada and formal complaints filed by the State Bar. It would be helpful for attorneys and their defense teams facing a complaint from the State Bar to know and consider the following factors:
The witnesses, including any experts, wait outside the hearing room unless testifying panels, which are comprised of 4 attorneys and 1 layman, who serve as volunteers without compensation.
State Bar counsel rarely takes the deposition of witnesses and experts prior to hearings before the panel. The Bar is not trying to rack up billable hours in these matters, but their focus is on protecting the public from harm. Their investigators have previously interviewed the key witnesses and the State bar counsel will allow attorneys to review their files by appointment made in advance. Although an investigator will typically be in the room with you, they will also provide courtesy copies of documents you request.
The panel members are busy attorneys and businessmen who want short and to the point testimonies at panel hearings. The panel members can grow irritated if testimonies drag on for too long unnecessarily. A typical hearing may last an average of about 5 hours. Be respectful of the panel members and the fact that they are missing work to attend the hearing.
The panel members are provided with a copy of the pleadings several days before the hearing and hence it is prudent for defense teams to make their legal and factual arguments in their answer and not just wait until the hearing to first explain their positions.
All of the members of the panel are entitled to ask the witnesses and experts questions during the hearing.
The panel and the bar are looking for patterns of misconduct and prior warnings sent to the respondent attorneys prior to the hearing.
The Bar is trying to protect the public from harm from violations of the Rules of Professional Conduct.
Arrogance on the part of the respondent and his legal team generally hurts the defense in these types of hearings. Remorse is important and helps a respondent's case substantially. Supreme Court Rule 102.5 lists the aggravating circumstances to be considered by the panel, which include: prior disciplinary offenses, a pattern of misconduct; multiple offenses, refusal to acknowledge the wrongful nature of the conduct, vulnerability of the victim, substantial experience in the practice of law, and indifference to making restitution. On the other hand, mitigating circumstances listed in SPR 102.5 include: absence of a prior disciplinary record, timely good faith effort to make restitution or to rectify consequences of misconduct, cooperative attitude toward the proceeding, remoteness of prior offenses and remorse.
Under SPR 102.5 it is often a mistake to claim complete innocence and not apologize when an obvious violation of the rules has occurred. The attorney should at least explain how the respondent is going to improve his communications and business practices that resulted in the complaint, particularly if there appears to be a pattern, or more than one grievance filed by clients.
The panel has the authority to impose a variety of penalties under SCR 102, including restitution and fines, mandated attendance at specific CLE courses, use of a mentoring and diversion programs, public and private reprimands, temporary restraining orders, disbarment, etc, as set forth below:
Resignation with charges pending: SCR 98(5)(b)
Types of possible discipline listed generally: SCR 102
Attorneys convicted of crimes: SCR 111
Conditional Guilty plea agreements (discipline by consent): SCR 113
Reciprocal discipline: SCR 114
Disbarred/Suspended attorneys: SCR 115
Reinstatement: SCR 116
Disability Inactive: SCR 117
Supreme Court Rules (SCRs):
DISBARMENT - License to practice revoked.
SUSPENSION - License suspended for a time certain, ineligible to practice. More than six months requires petition for reinstatement and court order.
DISABILITY INACTIVE - Ineligible to practice until further order of the court. In the interim, disciplinary proceedings held in abeyance.
INTERIM TEMPORARY SUSPENSION - Interim suspension based on showing of a substantial threat of serious harm to the public, in effect until further court order, usually after hearing.
RESIGNATION WITH CHARGES PENDING - Ineligible to practice. Requires Bar Counsel approval. Resignation is irrevocable, with readmission only possible upon application as a new admittee.
PUBLIC REPRIMAND - Misconduct found and public censure issued, including attorney’s name and the underlying facts and charges. Published in Nevada Lawyer and made available to the press. Remains eligible to practice law.
LETTER OF REPRIMAND - Lowest lever of discipline. Not published, but disclosed upon request under the new rules. May also include up to a $1,000 fine and restitution. Remains eligible to practice.
ADMINISTRATIVE SUSPENSION - Attorneys may be administratively suspended for failure to pay bar fees (SCR 98(12)), and/or for failure to complete and report the required Continuing Legal Education hours (SCR 212). While these are not disciplinary suspensions, the attorney is ineligible to practice law until the deficiency is remedied and the procedures to transfer back to active status completed as set forth in the applicable rules.
It is important for attorneys appearing before the State Bar panels to have drafted a plan for better practices that have been implemented in their law firm to stop complaints from arising about the specific rules of professional conduct being violated, such as lack of communication with clients and/or too much authority being delegated to paralegals/nonlawyers.
By Mark Albright
About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah. Our firm’s practice includes a strong emphasis on corporate and business law, and representation of professionals, including attorneys appearing before the State Bar of Nevada.
Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services. Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.