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Bar Counsel Report: February 2013

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bar counsel report
February 2013
SUPREME COURT OF NEVADA
In re: Bar No.: Docket No.: Filed: Travis Chandler 8778 58956 December 7, 2012
ORDER OF SUSPENSION
Attorney suspended after failing to respond to the state bar and failing to prosecute patent applications for his clients. Costs were also ordered. This is an automatic review, pursuant to SCR 105(3)(b), of a Southern Nevada Disciplinary Board hearing panel’s findings that attorney Travis Chandler violated four rules of professional conduct, and its recommendation that he be suspended from the practice of law for one year. Having reviewed the record of the disciplinary proceedings, we approve the panel’s findings and recommendation to the extent that Chandler shall be suspended from the practice of law for one year.1 The underlying facts in this matter provide that Chandler represented two clients in a patent matter wherein Chandler filed two different patent applications.2 However, Chandler failed to respond to various notices from the U.S. Patent Office and failed to prosecute the applications. The patent applications therefore lapsed. Throughout his representation, the clients made numerous attempts to contact Chandler regarding the status of their patent applications. However, Chandler failed to communicate with them and failed to perform the tasks for which he had been retained. The clients submitted a grievance to the State Bar of Nevada stating that Chandler was non-responsive to telephone calls and e-mails. The state bar sent Chandler numerous correspondences requesting a written response. However, he failed to respond. Chandler also failed to respond to the state bar’s subsequent formal complaint against him. The state bar thereafter sent, via certified and regular mail, to Chandler’s SCR 79 address, notice of (1) its intent to proceed on a default basis, (2) the scheduled formal hearing, (3) designation of witnesses and summary of evidence, and (4) the order appointing formal hearing panel. Additionally, a process server was sent to the SCR 79 address with a copy of the filed pleadings in this matter. The process server made two unsuccessful attempts to deliver these pleadings. Chandler failed to respond to any of these notices and did not appear at the formal disciplinary hearing. The panel found that Chandler violated RPC 1.3 (diligence), RPC 1.4 (communication), RPC 1.15 (safekeeping property) and RPC 8A(b) (bar admission and disciplinary matters). The findings and recommendations of a disciplinary board hearing panel are persuasive; however, our automatic review of a panel decision recommending a suspension is conducted de novo, requiring the exercise of independent judgment by this court. SCR 105(3)(b). In reStuhff, 108 Nov. 629, 633, 837 P.2d 853, 855 (1992). We conclude that clear and convincing evidence supports the panel’s findings and that Chandler violated RPC 1.3 (diligence), RPC 1.4 (communication), RPC 1.15 (safekeeping property) and RPC 8.1(b) (bar admission and disciplinary matters). SCR 105(2)(e). The panel further recommended that Chandler be suspended from the practice of law for one year. The panel
also recommended that Chandler be required to submit full payment for the costs of the disciplinary proceeding pursuant to SCR 120 within 30 days after the state bar issues a bill of costs. Having reviewed the record, we conclude that the recommended discipline is appropriately tailored to the circumstances. Accordingly, Chandler is hereby suspended from the practice of law for one year.3 Further, Chandler shall pay the costs of the disciplinary proceedings within 30 days of receipt of the Nevada state bar’s bill of costs. See SCR 120. Chandler and the state bar shall comply with the applicable provisions of SCR 115 and 5CR 121.1.
In re: Bar No.: Docket No.: Filed:
David A. Francis 7705 60134 December 7, 2012
ORDER OF OF TEMPORARY SUSPENSION AND REFERRAL TO THE SOUTHERN NEVADA DISCIPLINARY BOARD
Attorney temporarily suspended following a conviction of a “serious crime,” as defined in SCR 111. This is a petition by bar counsel pursuant to SCR 111(4) concerning attorney David Francis, based on Francis’s convictions in Las Vegas Municipal and Justice courts, pursuant to guilty pleas of first offense driving under the influence and violation of NRS 240.150 (prohibited acts by notary).4 See SCR 111(1). Francis’ first-offense driving under the influence conviction,5 is not one of those specifically enumerated in SCR 111(6)-(8) as a “serious” crime requiring suspension and automatic referral to the disciplinary board. As such, temporary suspension and referral to the disciplinary board are discretionary with this court. SCR 111(9). The gravity of drinking and driving cannot be minimized; however, first-offense driving under the influence is not the type of offense for which professional discipline is typically imposed. Geoffrey C Hazard, Jr. & W. William Hodes, The Law of Lawyering § 65.4 (3d ed. Supp. 2009); In the Matter of Respondent I, 2 Cal. State Bar Ct. Rptr. 260,266 n.6, 272 (Rev, Dept. 1993). Accordingly, having considered the petition and the supporting documentation related to this conviction, we conclude that Francis’s offense does not warrant the imposition of a temporary suspension or referral to the disciplinary board at this time. However, within 15 days of the date of this order, Francis shall provide bar counsel with an update on where he stands in relation to completing the terms of his sentence, including proof of any completed terms. If the terms of the sentence have been met, then no further action is necessary. If Francis has yet to complete the terms, he shall, on a bimonthly basis, provide bar counsel with an update. If Francis fails to comply with this court’s order or fails to complete any of the terms of his sentence, Bar Counsel shall notify this court. Regarding Francis’ conviction for violation of NRS 240.150, we conclude that the petition conclusively establishes Francis’ conviction of a serious crime warranting temporary suspension. Francis’ conviction indicates that he engaged in
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February 2013 improper conduct as an attorney, misrepresentation, fraud and deceit: all elements of a serious crime, less than a felony, as defined in SCR 111(6). See State ex rel. Oklahoma Bar Ass’n v. Dobbs, 94 P3d. 31, 59 (Okla. 2004) (attorney’s action in ordering his secretary, a notary public, to notarize affidavit bearing client’s signature, without having personally observed client executing affidavit, violated rule of professional conduct prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation); Milligan v. Board of Professional Resp., 166 S.W.3d 665, 672 (Tenn. 2005) (where an attorney signed both his clients’ names to a release and had a notary falsely notarize the signatures, the court concluded: “[c]learly, such conduct involves dishonesty, fraud, deceit, or misrepresentation ... whether or not he acted with the [clients’] permission”). Accordingly, we temporarily suspend Francis from the practice of law and refer this matter to the Southern Nevada Disciplinary Board for the initiation of formal disciplinary proceedings in which the sole issue to be determined is the extent of discipline to be imposed. See SCR 111(7),(8). shall be treated as would an appeal from a civil judgment of a district court and is governed by the Nevada Rules of Appellate Procedure”); NRAP 28(j). Among other deficiencies, Montoya’s brief lacks any citation to the record in support of her arguments, as required by NRAP 28(e). See also MC. Multi-Family Dev. v. Crestdale Assocs., 124 Nev. 901. 908 n.2, 193 P.3d 536, 541 (2008)(arguments in briefs must present appellant’s contentions with citations to the parts of the record upon which appellant relied). Further, although Montoya received proper notice of the complaint and the disciplinary hearing, she failed to respond or appear to assert her arguments in the district court. Thus, the arguments Montaya makes in her brief are raised for the first time in this appeal. See In re AMERCO Derivative Litigation, 127 Nev.____, ____ , n.6, 252 P.3d 681, 697 n.6 (2011) (declining to address an issue raised for the first time on appeal); Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (“A point not urged in the [district] court...is deemed to have been waived and will not be considered on appeal”). Accordingly, we direct the clerk of this court to strike Montoya’s opening brief, entitled “Response Brief,” from the record in this matter. After reviewing the record related to the instant disciplinary proceedings, we conclude that clear and convincing evidence supports the panel’s findings. See SCR 105(3)(b); Matter of Discipline of Droz, 123 Nev. 163, 168, 160 P.3d 881, 884-85 (2007) (this court’s review of an SCR 105 petition is de novo and a panel’s findings of misconduct must be supported by clear and convincing evidence). The record indicates that Montoya was retained to assist her client, Lisa Bailes, with an immigration matter, wherein Montoya filed incomplete paperwork that was rejected by the immigration court. Montoya then led Bailes to believe that she would be appealing the rejection; however, Montoya missed the appeal deadline which resulted in the lapse of Bailes’ immigration status.8 Bailes was fired from her job as a registered nurse due to her lack of status. Bailes paid Montoya approximately $8,000 for her services. Subsequently, the state bar filed a complaint against Montoya in the instant matter and, despite proper notice, Montoya failed to respond to the complaint or attend the disciplinary hearing. Accordingly, we approve the panel’s recommendation in its entirety. For five years from the date of this order, Montoya is hereby enjoined from: practicing law in Nevada; appearing before any court or administrative entity in this state, including, but not limited to, all federal and state courts and administrative agencies; and from holding herself out to the public as someone who is authorized to practice law in this state. Montoya is required to petition this court to lift the injunction after the five-year period has expired. Montoya shall pay restitution to Bailes in the amount of $ 8,000. Within 15 days of the date of this order. Montoya shall provide a copy of this order to all of her current and past clients, and certify to bar counsel that she has done so. If the certification is not forthcoming, bar counsel shall notify this court. Finally, Montoya shall pay the costs of the disciplinary proceedings within 30 days of receipt of the Nevada state bar’s bill of costs. SCR120.
In re: Bar No.: Docket No.: Filed:
Vincenta E. Montoya n/a 58571 December 7, 2012
ORDER OF INJUNCTION AND GRANTING MOTION TO STRIKE
California attorney practicing immigration law in Nevada enjoined from the practice of law in the state of Nevada for five years, including maintaining an office in Nevada or appearing before any Nevada court or administrative body. Restitution was also ordered. This is an automatic review, pursuant to SCR 105(3)(b), of the Southern Nevada Disciplinary Board hearing panel’s recommendation that attorney Vicenta E. Montoya be enjoined from practicing law in Nevada for five years, including being prohibited from maintaining an office in Nevada, appearing before any court or administrative entity in Nevada and from holding herself out to the public as someone authorized to practice law in this state. The panel further recommended that Montoya pay restitution in the amount of $8,000, pay the costs of the disciplinary proceedings and provide the state bar with a list of current and past clients, from April 13, 2009, to the present.6 The panel’s recommendation was based on its conclusion that Montoya violated RPC 1.1 (competence), RPC 1.3 (diligence), RPC 1.4 (communication) and RPC 8.1(b) (bar admission and disciplinary matters). Despite receiving proper notice of the complaint and disciplinary hearing below, Montoya neither responded to the complaint nor appeared at the disciplinary hearing.7 However, Montoya did file an opening brief in this court, as allowed by SCR 105(3)(b). The state bar moved to strike the brief and Montoya failed to oppose the motion. Cause appearing, we grant the state bar’s motion to strike Montoya’s opening brief. Montoya’s opening brief, in large part, failed to comply with the requirements of NRAP 28. See SCR 105(3)(a) (“[An appeal from a decision of a hearing panel
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In re: Bar No.: Docket No.: Filed:
Robert S. Tabor 7535 59575 December 7, 2012
In re: Bar No.: Docket No.: Filed:
Toni L. Christiani 6597 59552 December 7, 2012
ORDER IMPOSING RECIPROCAL DISCIPLINE
Reciprocal discipline of three years suspension stayed, with two years actual and three years of probation, imposed on attorney for misappropriation of client funds. This is a petition under SCR 114 to reciprocally discipline attorney Robert S. Tabor, based on discipline imposed upon him in California. Tabor has not responded to the petition. The California Supreme Court approved a stipulation calling for a three-year stayed suspension, placing Tabor on probation for three years and imposing a minimum two-year actual suspension. The stipulation also requires Tabor to satisfy several conditions: he must provide proof to the California State Bar of his rehabilitation, fitness to practice law, and learning and ability in the general law; he must submit quarterly reports to the California State Bar’s probation unit; he must pass the Multistate Professional Responsibility Examination within one year; he must attend the California State Bar Ethics School; and he must pay the costs of the disciplinary proceeding. The discipline was based Tabor’s violation of California Business and Professions Code Sections 6068(i). 6068(o)(3), 6103, and 6106; and California Rules of Professional Conduct 4-100A, 4-100B(3), and 4-100(B)(4).9 Specifically, Tabor misappropriated approximately $37,000 of client funds, using them for his own personal use and benefit. In a separate instance, Tabor failed to properly respond to a civil complaint, resulting in a default judgment being entered against his client. Tabor’s client was then required to hire a separate attorney to get the default set aside. In both instances, Tabor failed to respond to the State Bar of California’s investigative inquiries. Two aggravating circumstances – misappropriation of trust fund monies and misconduct resulting in significant harm to a client – and three mitigating circumstances – no prior discipline, Tabor repaid in full the misappropriated funds and extreme emotional difficulties – were also considered. SCR 114(4) provides that this court shall impose identical reciprocal discipline unless the attorney demonstrates, or this court finds, that one of four exceptions applies. None of the exceptions are present in this case.10 Accordingly, we grant the petition for reciprocal discipline. Tabor shall be suspended for three years, with the suspension stayed, and Tabor shall be placed on probation for three years. In addition, Tabor shall serve a minimum twoyear actual suspension.11See SCR 98(13); SCR 213. Tabor shall comply with SCR 116 upon petitioning for reinstatement from the two-year suspension. Finally, Tabor shall copy Nevada Bar Counsel with proof of his rehabilitation, fitness to practice law and learning and ability in the general law; all reports submitted to the California State Bar probation unit; proof that he has attended the Ethics School; and his MPRE score. Tabor and the State Bar of Nevada shall comply with SCR 115 and SCR 121.1.
ORDER GRANTING PETITION
Petition for reciprocal discipline of attorney who misappropriated client funds was granted by the Supreme Court. However, the Supreme Court found that substantial discipline was warranted pursuant to SCR 114(4)(c) and imposed two year suspension. This is a petition under SCR 114 to reciprocally discipline attorney Toni L. Christiani, based on discipline imposed upon her in California. Christiani did not file a response to the petition. Christiani was disciplined for misappropriating client funds and for using trust account funds to pay for personal and firm expenses. Specifically, Christiani was found to have violated California Rules of Professional Conduct (RPC) 4-100(A) and (B) (preserving identity of funds and property of a client), RPC 3-700(D)(1) (termination of employment), and Business and Professions Code Section 6106.12 On July 27, 2011, the California Supreme Court suspended Christiani for two years, with that suspension stayed and an actual suspension of one year imposed, and placed her on probation with conditions for three years. Christiani did not self-report this discipline to the State Bar of Nevada within 30 days as required by SCR 114(1). SCR 114(4) provides that this court shall impose identical reciprocal discipline unless the attorney demonstrates, or this court finds, that one of four exceptions applies. We conclude that one of the four exceptions exists in this matter, namely, that Christiani’s misconduct warrants substantially different discipline in this state. SCR 114(4)(c). Specifically, we conclude that the stayed suspension and the probationary period are not appropriate in Nevada. Accordingly, we grant the petition for reciprocal discipline to the following extent. Christiani is hereby suspended from the practice of law for two years.13 Christiani shall provide to the state bar proof that she has passed the MPRE and proof of compliance with the conditions of probation imposed upon her by California. Because her suspension is longer than six months, Christiani must petition this court for reinstatement pursuant to SCR 116. Christiani and the state bar shall comply with SCR 115 and SCR 121.1.
In re: Bar No.: Docket No.: Filed:
Laurence A. Hecker 3732 59585 December 7, 2012
ORDER IMPOSING RECIPROCAL DISCIPLINE
Reciprocal discipline imposed on attorney who failed to supervise non-lawyer assistants in a collection agency. The discipline imposed was one year suspension. This is a petition under SCR 114 to reciprocally discipline attorney Laurence A. Hecker, based on discipline imposed
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February 2013 upon him in New Jersey. Hecker did not file a response to the petition. Hecker’s misconduct arose from his failure to maintain a proper attorney-client relationship between his office and a collection agency. Hecker maintained an office in the agency’s facility and, in exchange for payment, loaned his name to the agency. Agency employees, supervised by Hecker, misleadingly represented that they were working for Hecker’s office. Specifically, Hecker was found to have violated New Jersey Rules of Professional Conduct (RPC) 5.5(a) (lawyers not admitted to the bar of this state and the lawful practice of law) for allowing agency employees to falsely represent that they were employees of his office and for failing to prevent their unauthorized practice of law, and RPC 8.4(c)(misconduct) by loaning his name to the collections agency and permitting the agency to send collection letters on his stationery.14 On March 10, 2011, the New Jersey Supreme Court suspended Hecker for one year and required him to reimburse the Disciplinary Oversight Committee for costs and expenses in prosecution of the matter. Hecker did not self-report this suspension to the State Bar of Nevada within 30 days, as required by 5CR 114(1). SCR 114(4) provides that this court shall impose identical reciprocal discipline unless the attorney demonstrates, or this court finds, that one of four exceptions applies. None of the exceptions are present in this case. Accordingly, we grant the petition for reciprocal discipline. Attorney Laurence A. Hecker is hereby suspended for one year.15 Hecker is required to provide proof to Nevada Bar Counsel of compliance with the conditions of suspension imposed upon him by New Jersey. Hecker and the State Bar shall comply with SCR 115 and SCR 121.1. Rule of Court 9.20(a) and (c), wherein Segal needed to notify his California clients of his suspension and provide proof of notification to the bar, no later than November 5, 2008. Segal never filed proof of compliance, per Rule 9.20(c), nor responded to any communication from the Supreme Court of California. Thus, California initiated new disciplinary proceedings and Segal was ultimately disbarred in that state on January 28, 2011. SCR 114(4) provides that this court shall impose identical reciprocal discipline unless the attorney demonstrates, or this court finds, either: (a) there was a lack of due process in the other jurisdiction; (b) the decision of the other jurisdiction lacked fairness due to infirmity of evidence; (c) the misconduct deserves a punishment substantially different than that imposed by the other jurisdiction; or (d) the acts do not constitute misconduct in Nevada.16 We find that exceptions (a), (b) and (d) do not apply, but we do find that an exception based on SCR 114(4)(c) is applicable, and thus decline to order reciprocal disbarment.17 However, significant punishment short of disbarment is still warranted. The extent of punitive action required depends on an examination of mitigating and aggravating circumstances. In aggravation, we cannot overlook the five prior victims of Segal’s poor representation in 2005, nor can we forget that Segal has been delinquent in fulfilling his CLE requirements for nearly seven years.18 But in mitigation, we do not gloss over the fact that, if it is true that Segal had zero California clients when the order was issued, his act of noncompliance may not have been calculated or malevolent. Given these considerations, coupled with the fact that Segal has already been suspended from practice for so long that he must re-take and pass the bar examination and petition for reinstatement per SCR 116(2) and (5), we order that: (1) any petition for reinstatement filed by Segal must demonstrate proof that he has taken and passed the Nevada Bar Examination within the two years preceding the petition; and (2) any petition for reinstatement filed by Segal must include some offer of tangible proof, in the form of an affidavit, or otherwise demonstrate that he did not have any clients who were California residents as of August 27, 2008. Should Segal not furnish the required proof as part of his petition for reinstatement, we note that this court will be disinclined to approve any recommendation of reinstatement. However, should Segal offer such proof to the satisfaction of the hearing panel, and should reinstatement be recommended and granted, Segal’s reinstatement will still be subject to the following conditions: (1) he will be on probation for three years from the date of reinstatement, with the terms and conditions of probation to be decided by Bar Counsel; and (2) during the three-year term of probation, he must complete double the yearly requirement of CLE credits and submit proof of same to Bar Counsel. Segal and the State Bar of Nevada shall comply with all requirements of SCR 115 and SCR 121.1. It is so ORDERED. HARDESTY, J., with whom DOUGLAS, J, agrees, dissenting: I respectfully dissent from the majority’s order denying reciprocal discipline. continued on page 52
In re: Bar No.: Docket No.: Filed:
Gary Michael Segal 3220 59574 December 7, 2012
ORDER DENYING RECIPROCAL DISCIPLINE
Supreme Court declined to impose reciprocal discipline imposed on attorney who failed to comply with terms of probation in California. This is a petition under SCR 114 to reciprocally discipline attorney Gary Michael Segal, based on discipline imposed upon him in another state. Segal was disbarred in California based on failure to comply with terms of that state’s bar suspension order. Segal has filed an opposition to the petition. Segal’s California misconduct arose from his failure to adhere to reciprocal discipline requirements in that state based on an underlying Nevada disciplinary matter. Specifically, in March 2005, Segal was ordered suspended from practicing law in Nevada for six months and one day. In re: Discipline of Gary Segal, Docket No, 44401 (Order of Suspension, March 25, 2005). In August 2008, California ordered reciprocal discipline based on the Nevada conduct, but with different terms. California stayed a two-year suspension, imposed an actual suspension of 90 days, and placed Segal on probation with one of the conditions being an order to comply with California
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February 2013 Per SCR 114(4)(c), the majority concludes that Segal’s misconduct deserves a punishment substantially different than that imposed by the other jurisdiction, primarily because in California, disbarment is not a permanent end to an attorney’s ability to practice law, whereas in Nevada, disbarment is irrevocable. SCR 102(1). Since disbarment means two different things in each state, the majority believes that disbarment in our state would not be true reciprocal discipline. To overcome the differences, the majority has fashioned an extensive supervision program to accommodate a lawyer who does not deserve to be accommodated, having violated the Rules of Professional Conduct of both Nevada and California. While I acknowledge the technical differences in our two state’s rules, I do not agree with the majority that the two disbarments represent punishment that is not reciprocal. While the result of a California disbarment may differ from the result of a Nevada disbarment, California still dealt out its harshest possible punishment. Thus, we too should deal our harshest possible punishment. By ordering the highest level of punishment, we would, in fact, be reciprocating California’s punishment. I do not believe a permanent end to Segal’s ability to practice law is too extreme a consequence given his prior conduct. Segal has been subject to two prior suspensions from this court, one for failing to meet CLE obligations and one for poorly representing five clients. Segal never made attempts to catch up on his CLE requirements in seven years. Further, Segal’s California discipline was itself reciprocal punishment for misconduct committed in our jurisdiction. If he wanted to practice in Nevada, he should have been painstakingly precise in complying with the California bar requirements. In my mind, the ability to apply for reinstatement should be earned, and by failing to take steps to rectify his CLE situation and by not being exact in his California compliance, Segal did not earn this right. Therefore, due to his prior disciplinary record, I believe disbarment is appropriate. Since I disagree with the majority’s conclusions, I have no alternative but to dissent. Hardesty, J. I concur. Douglas, J. Conditional guilty plea Under the agreement, Lobello pleaded guilty to one count against him and admitted to violating RPC 8.4(b) (misconduct: committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer). In exchange, the State Bar of Nevada agreed to dismiss an additional count against Lobello. The agreed-upon discipline provides that Lobello (1) be suspended for two years, retroactive to the original date of suspension, December 3, 2008, which was imposed by this court; and (2) pay the actual costs of the disciplinary proceeding. Having reviewed the record, we approve the conditional plea agreement. Lobello shall comply with all of the other conditions in the agreement. Reinstatement On December 3, 2008, this court temporarily suspended Lobello from the practice of law. See In the Matter of Discipline of Mark A. Lobello, Docket No. 52777 (Order of Temporary Suspension, December 3, 2008). Lobello has filed a petition for reinstatement pursuant to SCR 116. On March 21, 2011, a hearing was held before a Southern Nevada Disciplinary Board reinstatement hearing panel, which issued its findings of fact, conclusions of law, and recommendation on April 20, 2011. Following the reinstatement proceedings, the panel concluded that Lobello had demonstrated by clear and convincing evidence that he has the moral qualifications, competency, and learning in law required for admission to practice law and that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar, to the administration of justice, or to the public interest. The panel recommended that Lobello’s petition be granted, subject to conditions that Lobello: (1) be enrolled in a mentoring program that shall be administered and approved by the Office of Bar Counsel for a period of three years, (2) take and pass the Multistate Professional Responsibility Examination and provide proof of successful passage to the office of bar counsel within one year of being reinstated to the practice of law, and (3) complete the 12 required CLE hours, which includes a minimum of six hours of CLE ethics hours. Further, Lobello shall pay the costs of the reinstatement proceedings within 30 days of receipt of the state bar’s billing. SCR 116(2) requires that an attorney seeking reinstatement must: Demonstrate[e] by clear and convincing evidence that he or she has the moral qualifications, competency and learning in law required for admission to practice law in this state, and that his or her resumption of the practice of law will not be detrimental to the integrity and standing of the bar, to the administration of justice or to the public interest. Having reviewed the record, we conclude that clear and convincing evidence supports the panel’s findings and conclusions. We therefore approve the panel’s recommendation that the petition be granted subject to conditions. Accordingly, Mark A. Lobello is hereby reinstated to the practice of law, subject to the conditions set forth above, including payment of the cost of the proceedings.
In re: Bar No.: Docket No.: Filed:
Mark A. Lobello 3994 58394 November 29, 2012
ORDER APPROVING CONDITIONAL GUILTY PLEA AGREEMENT AND REINSTATEMENT TO THE PRACTICE OF LAW
Attorney suspended for two years for a conviction of a serious crime as defined in SCR 111, was reinstated with conditions, including passing the Multistate Professional Responsibility Examination and enrollment in a mentoring program. This matter involves an automatic review of the Southern Nevada Disciplinary Board Hearing panel’s recommendation to approve attorney Mark A. Lobello’s conditional guilty plea in exchange for a stated form of discipline pursuant to SCR 113 and a petition for reinstatement to practice law under SCR 116.
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1. 2. 3. Neither Chandler nor the state bar submitted a brief challenging the panel’s findings and recommendation. Chandler was publically reprimanded by this court in a case with similar facts to the one now before the court for violations of RPC 1.3 (diligence), RPC 1.4 (communication), and RPC 8.1(b)(bar admission and disciplinary matters). See In re: Discipline of Travis Chandler, Docket no. 55625 (Order Imposing Public Reprimand, July 27, 2011). We recognize that Chandler is currently suspended in Nevada for failure to pay his bar dues. The suspension in the instant matter is separate from and in addition to Chandler’s existing bar dues suspension. The suspension in the instant matter shall not begin until Chandler resolves his bar dues suspension. Francis filed a response to the petition and bar counsel filed a reply. Although such filings are not expressly permitted by the rules, we have considered both in resolving this matter. As a result of his conviction, Francis was sentenced to 45 days in jail; ordered to stay out of trouble: ordered to attend a Victim Impact Panel, a DUI program, and a Coroner’s DUI program; and was assessed fines and costs. Montoya was, at all times pertinent to this matter, licensed to practice law in California. At no time pertinent to this matter was Montoya a licensed attorney in Nevada. This court has jurisdiction to impose discipline upon Montoya, despite the fact that she was, and is not a member of the State Bar of Nevada. See SCR 99(1); Matter of Discipline of Droz, 123 Nev. 163, 167-68, 160 P.3d 881, 884 (2007). As a result of this failure, the hearing panel deemed the allegations in the complaint admitted. See SCR 105(2). Montoya was issued a letter of private reprimand in Nevada in 2004, and assessed a fine, of $500 for violations of former SCRs 152 (scope of representation), 153 (diligence), 154 (communication), 187 (responsibilities regarding nonlawyer assistants), and 189 (unauthorized practice of law). In this particular immigration matter, Montoya’s secretary prepared a motion and signed. Montoya’s name to it and, after learning of this misconduct, Montoya dialed to take action to bring it to the court’s attention. Further, Montoya failed to file the opening brief in an appeal to the Board of Immigration Appeals, resulting in the dismissal of the appeal and the issuance of an order of deportation for her client Montoya received a public reprimand in California for this same conduct. Nevada’s counterparts are RPC 1.15 (safekeeping property), RPC 3.4(c)(fairness to opposing party and counsel), RPC 8.1(b) (bar admission and disciplinary matters), RPC 8.4 (misconduct), and SCR 114 (reciprocal discipline). SCR 114(1) requires attorneys licensed in this state to inform Nevada Bar Counsel if they are subjected to professional disciplinary action in another jurisdiction. Tabor failed to do so here. We note that Tabor is currently suspended in Nevada for failure to fulfill CLE requirements and for failure to pay his bar dues. The suspension in the instant matter is separate form and in additional to Tabor’s existing suspensions. The suspension in the instant matter shall not begin until Tabor has resolved both his CLE and bar dues suspensions. Nevada’s counterparts are, respectively, RPC 1.15 (safekeeping property), RPC 1.16 (declining or terminating representation), and RPC 8.4 (misconduct). We note that Christiani is currently suspended in Nevada for failure to pay her bar dues. The suspension in the instant matter is separate from and in addition to Christiani’s existing bar dues suspension. The suspension in the instant matter shall not begin until Christiani resolves her bar dues suspension. Nevada’s counterparts are RPC 5.5(a) (unauthorized practice of law) and RPC 8.4(c) (misconduct). We note that Hecker is currently suspended in Nevada for failure to fulfill CLE requirements. The suspension in the instant matter is separate from and in addition to Hecker’s existing CLE suspension. The suspension in the instant matter shall not begin until Hecker has resolved his CLE suspension. 16. The Nevada equivalent of California Rule of Court 9.20 is SCR 115. 17. Unlike in California, disbarment in Nevada is irrevocable. SCR 102(1). 18. Segal was suspended separate and apart from the conduct discussed in this order for failing to meet his yearly continuing legal education requirements In re: Continuing Legal Education, Docket No. 43912 (Order Granting Petition, September 2, 2005).
4. 5.
6.
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 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.
7. 8.
9.
10.
11.
12. 13.
14. 15.
February 2013 Nevada Lawyer
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