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Bar Counsel Report: December 2009

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december 2009
NeVAdA LAWYer
SOUTHERN NEVADA DISCIPLINARY BOARD
LETTERS OF (PRIVATE) REPRIMAND1 File No. 09-026-2557
Letter of reprimand, advertising matter.
bAr COunSEL rEPOrT
Client and his wife were sent correspondence from Attorney dated January 14, 2009. Client noted that his wife, who received the letter, perceived it to be an official document and became very upset. It was not until Client came home that they learned that the letter did not threaten a lawsuit, but was instead a “special offer.” Neither the envelope nor the letter contained the disclaimer required by Rule of Professional Conduct (RPC) 7.3(c) (Communications with prospective clients; Additional disclaimer on mailers or written advertisements or communications), which states, in part, that: Direct or indirect mail envelope, and written mail communications or advertising circulars shall contain, upon the outside of the envelope and upon the communication side of each page of the communication or advertisement, in legible type that is at least twice as large as the largest type used in the body of the communication, in red ink, the following warning: NOTICE: THIS IS AN ADVERTISEMENT! The purpose behind RPC 7.3(c) is to allow the prospective client to immediately know that the communication from a lawyer seeking to offer them legal services. This also helps ensure that potential clients are not misled or intimidated into believing that a response to the correspondence is required. In this instance, if the envelope had contained the appropriate disclaimer, Client’s wife would have immediately known that the letter was an advertisement. As noted above, Attorney’s letter also failed to include the required disclaimer. Instead, the bottom of the correspondence stated, in size 8 font, “Please do not be offended by this letter. We obtained your information from public records. This letter is sent to offer HELP. If you do not need our help, throw the letter away or pass it on to a friend who does. Thank you.” In his response to the State Bar of Nevada, Attorney stated that: [I]n respect to Rule 7.3, our law firm does send out “mailers.” Our office uses a mailing
device which is programmed to stamp in red ink “NOTICE: THIS IS AN ADVERTISEMENT!” on every letter and enveloped mailed. Unfortunately, it appears that for a period of approximately two to three weeks in January 2009 the red-ink stamp ran out of ink and therefore several letters were mailed without the disclaimer appearing. This issue has since been corrected and our mailings (as they have in the past) all have the Rule 7.3 language in red in size 24 point type (which is larger than any telephone number in the mailings). A review of state bar records indicates that the solicitation letter at issue had not been previously filed with the state bar and was not filed with the state bar within 15 days of the letter being sent as is required by RPC 7.2A (Advertising Filing Requirements). Attorney was REPRIMANDED in this matter for violating RPC 7.2A (Advertising Filing Requirements) and RPC 7.3 (Communications With Prospective Clients).
DECEMBER 2009
File No. 08-172-2987
Letter of reprimand appropriate when Attorney filed a non-meritorious claim. This matter was referred to the State Bar of Nevada by a judge. The Attorney filed a complaint on behalf of Client, who had given a Note and Deed of Trust for purchase of a home. The homeowner defaulted when the lender required payment in full of the remaining balance. According to the judge, “the homeowner then tendered a bogus and fraudulent Silver Surety Bond certificate as payment, which the Defendant ultimately declined as this form of payment was not covered under the provision of the Note.” The lender then filed a Motion to Dismiss Plaintiff’s Complaint for Improper Foreclosure. In Attorney’s response to Bar Counsel, he explained that a prior tenant was living with the prior owner when she passed away. The property was transferred through new ownership with the tenant and his family continuing to reside in the home as rental tenants until Client purchased the property on July 26, 2006. Attorney stated that Client attended a real-estate seminar where he met an alleged specialist in foreclosure actions who informed Client about a process where distressed homeowners could apply to the United States Treasury Department for a commercial discharge or restructuring of their mortgage obligations. Upon establishing a UCC Contract Trust Account with the U.S. Treasury, the debtor can submit the mortgage debt for an application of discharge or restructuring of the debt.
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NeVAdA LAWYer
december 2009
Client was successful in establishing the account and provided Bar Counsel with a copy of the Motion of Indefinite Stay filed on May 30, 2008. The economic discharge process Client attempted with the property, if successful, would have resulted in the Defendant receiving a treasurer’s check from the Department of Treasury. Client’s silver bond was not being used as a tender of payment but was to set up an initial deposit with the U.S. Treasury to establish his UCC Contract Trust Account. In this case, the bill tendered by Client is not a negotiable instrument because it is not made “payable to bearer or to order” as required by section 3-104 of the Uniform Commercial Code. Additionally, although a check may be a negotiable instrument even when not made payable to bearer or to order, the bill is not a check because it was not drawn on a bank. As discussed above, Client did not tender “payment” but, rather, a piece of paper that was entirely lacking in value. Therefore, the bill did not discharge his obligation to pay the mortgage. Attorney was REPRIMANDED for violating RPC 3.1 (Meritorious Claims and Contentions), RPC 3.4 (Fairness to Opposing Party and Counsel) and RPC 4.1 (Truthfulness in Statement to Others).
In Attorney’s response to the state bar, Attorney stated that Defendant “has had plenty of opportunities to resolve this matter amicably. Even as recently as September 23, 2008, I offered to dismiss the claims against her as long as she paid for the filing and service fees, returned the file documents pertaining to the Estate and withdrew her Bar complaint.” This peace offering was faxed and was good for seven days. The offer was extended beyond deadline date to avoid any further litigation expenses. The Informal Hearing Panel agreed that Attorney’s statement to Defendant requesting the withdrawal of her bar complaint was, in and of itself, is in violation of RPC 8.4 Attorney was REPRIMANDED for violating RPC 4.4 (Respect for Rights of Third Persons) and RPC 8.4 (Misconduct-Engage in Conduct that is Prejudicial to the Administration of Justice).
bAr COunSEL rEPOrT
File No. 08-226-2619
Attorney received a Letter of Reprimand for failure to respond to the State Bar of Nevada. On May 19, 2008, Chiropractor complained to the state bar that Attorney had failed to pay his liens. Chiropractor had previously treated one of Attorney’s clients regarding injuries she sustained in two separate automobile accidents. Attorney’s initial response to the state bar, dated June 4, 2008, acknowledged the liens and stated that Attorney was attempting to negotiate them through Chiropractor’s counsel. However, Attorney noted that neither of the underlying personal injury matters had yet settled. The state bar summarily dismissed the matter on June 24, 2008, as the two personal injury matters were still pending and, as such, Attorney could not make any disbursements. Chiropractor was informed that he was free to contact the state bar again if he encountered any difficulty in receiving payment after either case was completed. On July 31, 2008, Chiropractor informed the state bar that one of the matters had settled and attached “Third Request” for payment, which referenced prior requests being made on July 14 and July 18, 2008. The state bar subsequently asked Attorney to provide an update regarding the personal injury matters by August 14, 2008. No response was received, however, and two reminder letters were sent to Attorney on September 17
COnTInuEd On PAgE 42
DECEMBER 2009
File No. 08-226-2619
Letter of Reprimand, various matters. Attorney’s office faxed correspondence to Defendant’s new employer. The correspondence made various allegations and stated it was a final warning before Attorney would be forced to contact the police, the district attorney, the State Bar of Nevada and file a civil complaint in District Court. A response letter was sent to Attorney by Defendant’s supervisor, who advised Attorney that his actions had disrupted the operations of her department. The supervisor further stated that in the future, all personal correspondence should be sent directly to Defendant’s residence and not her place of employment. The testimony at the informal hearing before the Southern Nevada Disciplinary Board was disputed. Attorney stated that Defendant told him to fax the letter to her workplace in care of her supervisor. Defendant denied giving Attorney these instructions. Nevertheless, even assuming Attorney’s testimony was correct, the panel felt Attorney should have known better than send such a letter to Defendant’s work, which served only to embarrass her in front of her new employer.
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december 2009 and December 10, 2008, both sent via certified mail with return receipt requested. Prior to the December 10 reminder letter being issued, the state bar had spoken with Attorney, on November 5, 2008, to confirm Attorney’s current address as Attorney’s prior firm had recently dissolved. During the conversation, Attorney was informed that an update had been requested regarding Chiropractor’s grievance. Attorney provided an update on December 20, 2008, claiming that he was waiting for the second personal injury matter to resolve before paying Chiropractor in full for both cases. Attorney’s letter expressed concern that if Chiropractor were paid in full for the first case, Chiropractor would not be cooperative in reducing the second lien, which was for a smaller dollar amount. Attorney also informed the state bar that the second matter recently settled and that his client would be signing the release within the next few days. As such, Attorney anticipated paying Chiropractor by the end of the year. On January 12, 2009, Chiropractor informed the state bar that he had yet to receive any payment from Attorney. The state bar asked Attorney to update regarding the two matters by January 30, 2009. However, Attorney failed to respond. Two reminder letters were subsequently sent to Attorney on February 3 and February 24, 2009, both sent via certified mail with return receipt requested. The latter letter informed Attorney that failure to respond would be considered a violation of RPC 8.1 (Bar Admission and Disciplinary Matters). Attorney again failed to respond and the instant grievance file was opened on March 17, 2009. Attorney finally updated the state bar on April 3, 2009, indicating that the second check had issued in January 2009, but was made payable to the incorrect firm. The insurance company reissued the check in February 2009, and was deposited on March 10, 2009. Attorney’s April 3 letter also attached a copy of a check made payable to Chiropractor, in the amount of $7,564.13, dated March 22, 2009. The amount appears to be the total for the two liens. However, as of June 22, 2009, Chiropractor maintained that he had not received the check. Although Chiropractor was aggressive in his collection efforts, it does not absolve Attorney of his obligations to respond to a lawful demand for information from the state bar pursuant to RPC 8.1(b) (Bar Admission and Disciplinary Matters). The panel, in considering
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Attorney’s failure to timely response to the State Bar of Nevada, noted that Attorney had been previously issued a Public Reprimand in March 2007 for failing to comply with deadlines in regard to four orders from the Supreme Court of Nevada in an appellate case in which he was counsel-of-record. Attorney was REPRIMANDED in this matter for violating RPC 8.1(b) (Bar Admission and Disciplinary Matters).
1. See SCR 121 (Confidentiality) as amended eff. March 1, 2007.
bAr COunSEL rEPOrT
DISCIPLINE KEY
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): www.leg.state.nv.us/CourtRules/SCR.html DISBARMENT – License to practice revoked. SUSPENSION – License suspended for a time certain, ineligible to practice. More than 6 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 PRIVATE REPRIMAND – Lowest level of discipline. Not published, but disclosed upon request under the new rules. May also include up to a $1,000 fine. Remains eligible to practice. ADMINISTRATIVE SUSPENSION/INACTIVE STATUS – Attorneys may be administratively suspended for failure to pay bar fees (SCR 98(12)), and/or placed on CLE inactive status 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.
DECEMBER 2009

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