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Bar Counsel Report: August 2011

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bar counsel report
August 2011
In re: Bar No.: Docket No.: Filed: Jeffrey Ferguson 6292 57640 July 1, 2011
Attorney temporarily suspended pending resolution of formal disciplinary proceedings. This is a petition by the Southern Nevada Disciplinary Board chair for an order temporarily suspending attorney Jeffrey Ferguson from the practice of law, pending the resolution of formal disciplinary proceedings against him.1 The petition and supporting documentation allege that Ferguson: misappropriated funds; commingled funds; falsely reported to the state bar that he was current on his support obligations; failed to report a trust account to the state bar; is the subject of numerous criminal charges, both felony and misdemeanor, arising from separate incidents spanning a period of several months; and made a veiled threat against his ex-wife. Ferguson has filed a request to file a response to the petition.2 SCR 102(4)(a) provides, in pertinent part: On the petition of a disciplinary board, signed by its chair or vice chair supported by an affidavit alleging facts personally known to the affiant, which shows that an attorney appears to be posing a substantial threat of serious harm to the public, the supreme court may order, with notice as the court may prescribe, the attorney’s immediate temporary suspension or may impose other conditions upon the attorney’s practice. In addition, SCR 102(4)(b) and (c) provide that we may place restrictions on an attorney’s handling of funds and on an attorney’s acceptance and representation of clients. We conclude that the documentation before us demonstrates that Ferguson poses a substantial threat of serious harm to the public, and that his immediate temporary suspension is warranted under SCR 102(4)(a). Accordingly, attorney Jeffrey Ferguson is hereby temporarily suspended from the practice of law pending the resolution of formal disciplinary proceedings against him. In addition, pursuant to SCR 102(4)(a), (b) and (c), we impose upon Ferguson the following conditions: 1. That Ferguson is precluded from accepting new cases; he may, however, continue to represent existing clients during the first 15 days after service of this order;3
2. All proceeds from Ferguson’s law practice and all fees and other funds received from or on behalf of clients shall, from the state of service of this order, be deposited into a trust account from which no withdrawals may be made by Ferguson except upon written approval of bar counsel or by order of a court of competent jurisdiction; and 3. Ferguson is prohibited from withdrawing any funds from any and all accounts in any way relating to his law practice, including but not limited to his general accounts, except upon written approval of bar counsel or by order of a court of competent jurisdiction. The state bar shall immediately serve Ferguson with a copy of this order. Such service may be accomplished by personal service, certified mail, delivery to a person of suitable age at Ferguson’s law office or residence or by publication. When served on either Ferguson or a depository in which he maintains an account, this order shall constitute an injunction against withdrawal of the proceeds except in accordance with the terms of this order. See SCR 102(4)(b). Ferguson shall comply with SCR 115. Bar counsel shall comply with SCR 121.1. It is so ORDERED.
SCR. 98(5)(a) states: Any member of the state bar who is not actively engaged in the practice of law in this state, upon written application on a form approved by the state bar, may resign from membership in the state bar if the member: (1) has no discipline, fee dispute arbitration, or clients’ security fund matters pending and (2) is current on all membership fee payments and other financial commitments relating to the member’s practice of law in Nevada. Such resignation shall become effective when filed with the state bar, accepted by the board of governors, and approved by the Supreme Court. The following members resigned pursuant to this rule: Sarah A. Smegal Bar No. 8669 Case No. 58204 Edward M. Goergen Bar No. 5969 Case No. 58203 Owen W. Porterfield Bar No. 4031 Case No. 58202 Gregory Don Sherwood Bar No. 5777 Case No. 58201 Kristin A. Carveth Bar No. 8398 Case No. 58199 Filed 6/8/11 Filed 6/8/11 Filed 6/8/11 Filed 6/8/11 Filed 6/8/11
Nevada Lawyer August 2011
bar counsel report
August 2011
PUBLIC REPRIMAND In re: Bar No: File No: Filed: Eduardo P. Chacon 8020 10-035-2462 & SG10-0007 May 2, 2011
Public reprimand imposed for failure to communicate with clients, lack of diligence, and failure to respond to the state bar. Eduardo P. Chacon was retained by Russell Letizia (Letizia) to handle a citation he received which was being adjudicated in Las Vegas Municipal Court. Letzia paid Chacon approximately $1,500 for these services. Chacon failed to adequately notify Letizia of a pending court appearance resulting in his non-appearance. Chacon advised Letizia that a new court date would be set, and maintained that a mitigating factor to these events was the fact that Letizia traveled extensively for work and was difficult to contact. Following the missed court date, Letizia attempted to contact Chacon on a number of occasions to determine when the new date had been set. He could not reach Chacon’s office. Letizia eventually contacted the Las Vegas Municipal Court directly and was advised that he had two outstanding bench warrants. Letizia went down to the court house, paid the bail and reset a date to appear before the judge. Letizia attempted to contact Chacon regarding the new court date via e-mail which was sent back as undeliverable. He then attempted to contact Chacon via phone which was disconnected. Letizia ultimately had to appear before the judge pro-per to quash the warrants and resolve his case. Chacon’s response to the state bar indicated that Chacon believed the situation resulted from a “breakdown in attorney client communication.” He had also, around the same time frame, been retained by John Bustamante to handle a civil matter. Bustamante attempted to contact Chacon concerning his case on several occasions, with no response. As a result, he went to Chacon’s office without an appointment with the intention of firing him and obtaining his file. He was informed by the building manager that Chacon had been evicted from the space. Bustamante ultimately tracked down Chacon’s new address and requested his file. Chacon indicated that there may be a chance to resolve his case and that Chacon would be in touch about the settlement. After several weeks, Bustamante attempted to contact Chacon to discuss the status of settlement. He got in touch with Chacon’s assistant who informed him that he may need to be deposed.
Bustamante tried, with no success, to get additional information concerning whether his deposition would be going forward. He contacted the attorney for the insurance company who informed Bustamante that his office had been attempting to contact Chacon with no success. He failed to respond to letters sent by the state bar requesting that Chacon respond to the allegations raised by Bustamante. In light of the foregoing, Chacon violated Rule of Professional Conduct (RPC) 1.1 (Competence), 1.3 (Diligence), RPC 1.4 (Communication) and RPC 8.1 (Bar Admission and Disciplinary Matters) and is hereby PUBLICLY REPRIMANDED.
PUBLIC REPRIMAND In re: Bar No.: File No.: Filed: Thomas Shaddix 7905 SG10-0390 June 6, 2011
Public reprimand imposed for failure to communicate with client, lack of diligence in expediting a criminal matter, and failure to respond to the state bar. Barry Egert (Egert) retained Thomas Shaddix for representation concerning a federal DUI criminal matter. Egert’s complaint to the state bar indicated a lack of diligence and a lack of communication in his representation, including Shaddix’s failure to appear at a December 2009 hearing which subsequently resulted in Egert being arrested on a bench warrant. On May 14, 2010, the state bar sent a letter of investigation to Shaddix’s Supreme Court Rule (SCR) 79 address regarding Egert’s grievance. On June 8, 2010, the state bar received a letter, dated June 1, 2010, wherein he requested an extension until June 8, 2010 in which to respond to the state bar. However, he did not correspond further with the state bar on this matter and failed to respond to the substance of the state bar’s letter dated May 14, 2010. The state bar subsequently sent a reminder letter dated June 25, 2010, to the SCR 79 address via regular mail and certified mail/return receipt requested. The correspondence informed Shaddix that failure to respond would result in the opening of a grievance file and that failure to cooperate would be considered a violation of RPC 8.1 (Bar Admission and Disciplinary Matters). He failed to respond to the state bar’s letter dated June 25, 2010. As a result, a grievance file was opened on August 17, 2010, and Shaddix was sent notice via regular mail and certified mail/return receipt requested to the SCR 79 address. The letter asked him to respond to Egert’s
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August 2011 Nevada Lawyer
bar counsel report
August 2011
grievance within ten days. Shaddix failed to respond to the state bar’s letter dated August 17, 2010. Although the state bar was required to make numerous attempts prior to establishing contact with Shaddix, he ultimately accepted responsibility for his actions, both in regard to Egert’s matter and for not responding to the state bar. Prior to communicating with the state bar, he fully refunded Egert’s fee and remained as counsel in Egert’s matter until the completion of his case, which resulted in Egert receiving probation for one count and dismissal of the three remaining counts. In regard to Shaddix’s failure to respond to the state bar, he is reminded that the practice of law is a selfregulated profession and therefore it is imperative for attorneys to fully cooperate in disciplinary proceedings in order to maintain the integrity of the profession. In light of the foregoing, he violated Rule of Professional Conduct (RPC) 1.3 (Diligence), RPC 1.4 (Communication) and RPC 8.1(b) (Bar Admission and Disciplinary Matters) and is hereby PUBLICLY REPRIMANDED.
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 level 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.
1 This matter was originally docketed as confidential because a formal disciplinary complaint had not yet been filed. See SCR 121(5). Since we are granting the petition, this matter is now open to the public. See id. 2 Although the rules do not expressly contemplate the filing of response to the petition, we direct the clerk of the court to file the response received February 8, 2011. We have considered Ferguson’s response in resolving this matter. Fergusons’ request for a hearing is denied. 3 Although the petition seeks to preclude Ferguson from continuing to represent existing clients “effective immediately” upon service of our order, we note that it fails to make a specific argument, other than the showing made in support of temporary suspension, why we should not give the attorney 15 days to continue representing existing clients as is generally contemplated by SCR 102(4)(c).
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52 Nevada Lawyer August 2011
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