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Bar Counsel Report: January 2013

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bar counsel report
January 2013
SUpReme CoURT oF NeVADA
in re: Le’Dell Sanders Joiner Bar No.: 10378 Docket No.: 58795 Filed: November 28, 2012 oRDeR oF DiSBARmeNT
Attorney disbarred for failure to represent three clients, and failure to participate and appear at disciplinary proceeding despite ample notice. This is an automatic review of a decision of a hearing panel of the Southern Nevada Disciplinary Board, recommending that attorney Le’Dell Sanders Joiner be disbarred from the practice of law in Nevada. See SCR 105(3)(b). The events leading up to this recommendation involve three different individuals who sought Joiner’s legal counsel. However, all three cases deal with Joiner’s failure to communicate and represent each client, to the clients’ detriment. The State Bar of Nevada filed two formal complaints against Joiner, alleging three counts of misconduct and 14 violations of the rules of professional conduct. Despite receiving ample notice of the proceedings against him, Joiner failed to defend against the charges. The panel dismissed three alleged violations and found that Joiner was guilty of the following 11 violations: Two violations of RPC 1.1 (competence), two violations of RPC 1.3 (diligence), three violations of RPC 1.4 (communication), one violation of RPC 1.16 (declining or terminating representation), and three violations of RPC 8.1(b) (bar admission and disciplinary matters). The panel also found the following aggravating factors, pursuant to SCR 102.5: dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders, refusal to acknowledge the wrongful nature of his conduct, vulnerability of victim and indifference to making restitution. Conversely, the panel found only two mitigating factors: Joiner lacked experience and had no prior discipline. The panel found that the aggravating factors outweighed the mitigating factors. Based on these findings, the panel recommended that Joiner be disbarred from the practice of law in Nevada, and that he be required to pay the costs of the disciplinary proceeding. A Southern Nevada Disciplinary Board panel’s decision to recommend disbarment is subject to automatic review by this court. SCR 105(3)(b). Although persuasive, the panel’s findings and recommendations are not binding on this court. Matter of Discipline of Droz, 123 Nev. 163, 168, 160 P.3d 881, 884 (2007). “This court must review the record de novo and exercise its independent judgment to determine whether and what type of discipline is warranted.” IL at 168,160 P.3d at 88485 (quoting In re Stuhff, 108 Nev. 629, 633, 837 P.2d 853, 855 (1992)). The panel’s findings of misconduct must be supported by clear and convincing evidence. In re Drakulich, 111 Nev. 1556, 1566, 908 P.2d 709, 715 (1995). SCR 105(2) provides that if an attorney fails to plead in response to a state bar complaint, the charges shall be deemed admitted. We conclude that the allegations in
the second complaint are deemed admitted.1 We further conclude that clear and convincing evidence supports the panel’s findings. Finally, we conclude that the state bar’s recommended discipline is appropriate in light of the nature of Joiner’s misconduct. Accordingly, we disbar Joiner from the practice of law in Nevada. Such disbarment is irrevocable. See SCR 102(1). Further, Joiner shall pay the costs of the disciplinary proceedings within 30 days of receipt of the State Bar of Nevada’s bill of costs. SCR 120.
in re: James G. Wolff Bar No.: 6537 Docket No.: 59565 Filed: November 28, 2012 oRDeR impoSiNG ReCipRoCAL DiSCipLiNe AND DiSBARRiNG ATToRNeY
Reciprocal discipline imposed on Attorney following disbarment in North Dakota. This is a petition under SCR 114 to reciprocally discipline attorney James G. Wolff, based on discipline imposed upon him in North Dakota.2 Wolff was ultimately disbarred in North Dakota and the issue before this court is whether he should be disbarred in Nevada. Wolff did not file a response to the petition. Wolff’s North Dakota misconduct arose from three disciplinary matters, which consisted of nine counts of professional misconduct, involved six different clients and entailed other matters.3 On September 20, 2010, the North Dakota Supreme Court accepted the findings of fact, conclusions of law, and recommendations from a hearing panel of the disciplinary board regarding the following three petitions filed against Wolff. In the first matter, Wolff was charged with billing work to the files of four clients, who were represented by another attorney in his firm, for work that was not actually done or was of no value to the clients. When confronted, Wolff either refunded the money to the client or said he intended to credit the payment for the entries on a final bill. He was served with, and admitted service of, the petition for discipline in May 2008. The hearing panel thereafter concluded that Wolff charged and collected unreasonable fees, in violation of North Dakota Rule of Professional Conduct 1.5(a); failed to hold property of a client or third person in his possession separate from his own property, in violation of North Dakota Rule of Professional Conduct 1.15(a); and failed to deposit legal fees and expenses into the client trust accounts that were paid in advanced and to be withdrawn only as fees were earned and expenses incurred, in violation of North Dakota Rule of Professional Conduct 1.15(c). In the second matter, Wolff was charged with entering into a fee agreement with a client, which provided, in part, that Wolff would receive one-third of any recovery as an attorney fee, and directed how a dispute between Wolff and his client would be resolved, and in such a case, who would be entitled to attorney fees and costs. Wolff allegedly did not discuss these provisions with his client. Thereafter, he entered into a settlement on behalf of his client where he deposited the settlement money into his trust account and informed the client that an accounting of the recovery left nothing for
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January 2013 her after the deduction of the attorney fees and costs. Wolff allegedly never disclosed statements or a trust ledger to his client or to Bar Counsel upon request. Wolff was served the petition for discipline and admitted such service in August 2008. The hearing panel concluded that Wolff entered into an agreement prospectively limiting his liability for malpractice, in violation of North Dakota Rule of Professional Conduct 1.8(h); failed to maintain, on a current basis, sufficient records of compliance, in violation of North Dakota Rule of Professional Conduct 1.15(h); and knowingly made a false statement of material fact or failed to disclose a fact necessary to correct a misapprehension, in violation of North Dakota Rule of Professional Conduct 8.1. With respect to the third matter, Wolff was charged with asking his client to obtain cocaine, paying for the illegal substance, and subsequently being charged with criminal conspiracy to unlawfully possess a controlled substance (cocaine), a class C felony.4 Wolff was served the petition for discipline and accepted such service in August 2009. The hearing panel found that Wolff counseled a client to engage in conduct that he knew was criminal, in violation of North Dakota Rule of Professional Conduct 1.2(d); misconduct, in violation of North Dakota Rule of Professional Conduct 8.4(b); and committed a criminal act that reflected adversely on his honesty, trustworthiness, or fitness as a lawyer, in violation of North Dakota Rules of Lawyer Discipline 1.2(02) and (11). The North Dakota Supreme Court ordered Wolff suspended from the practice of law in North Dakota for one year for his misconduct in the first and second matters, discussed above, and disbarred him from the practice of law in North Dakota for his misconduct in the third matter.5 He was also ordered to pay costs and expenses of the disciplinary proceedings. Wolff failed to inform Nevada Bar Counsel of the discipline, as required by SCR 114(1). SCR 114(4) provides this court shall impose identical reciprocal discipline unless the attorney demonstrates, or this court finds, either: (1) there was a lack of due process in the other jurisdiction; (2) the decision of the other jurisdiction lacked fairness due to infirmity of evidence; (3) the misconduct deserves a punishment substantially different from that imposed by the other jurisdiction; or (4) the acts do not constitute misconduct in Nevada. Disbarment is an extreme consequence that this court does not consider lightly. Nothing in the record evidences a lack of due process or such an infirmity of proof that would establish unfairness such that reciprocal discipline should not be imposed. Indeed, the record establishes that Wolff was served notice of the three North Dakota disciplinary proceedings, affirmed service of the petitions for discipline and filed responses. A one-year suspension is a reasonable response to Wolff’s misconduct involving charging of unreasonable attorney fees, mishandling of client property, limiting prospective malpractice liability, making false statements of material fact and failing to maintain current records. With respect to his criminal misconduct, disbarment is a reasonable response, particularly given that the nature of the criminal misconduct reflects adversely on his honesty, trustworthiness, and fitness as a lawyer, and due to his prior disciplinary history. In addition, the established misconduct does not suggest that substantially different discipline is warranted in Nevada. Wolff s actions would constitute misconduct under Nevada’s Rules of Professional Conduct. The equivalent Nevada rules which correspond to Wolff’s misconduct are Nevada Rules of Professional Conduct 1.2(d) (scope of representation and allocation of authority between client and lawyer); 1.5(a) (fees); 1.8(h) (conflict of interest, prohibited transactions); 1.15(a) and (c) (safekeeping property); 8.1 (bar admission and disciplinary matters); 8.4(b) (misconduct); and SCR 101 (grounds for discipline). Aggravating circumstances include a pattern of misconduct, multiple offenses and substantial experience in the practice of law. Mitigating circumstances include an absence of prior discipline and possible personal or emotional problems. However, Wolff has failed to respond to the petition currently before the court, or to any other matter relating to his license to practice law in Nevada since his suspension in Nevada in 2009. Consequently, Wolff has not demonstrated that substantially different discipline is warranted. Therefore, identical discipline is required under the rule. Accordingly, we grant the petition for reciprocal discipline. Attorney James G. Wolff is hereby disbarred from the practice of law in this state. Wolff and the state bar shall comply with SCR 115 and 121.1.
in re: Stephen R. harris Bar No.: 1463 Docket No.: 61942 Filed: November 8, 2012 oRDeR oF ReiNSTATemeNT
Attorney reinstated to the practice of law after three year suspension, with two years and nine months stayed. This is a petition for reinstatement to the practice of law by suspended attorney Stephen R. Harris. On February 24, 2012, this court suspended Harris from the practice of law for 3 years, with 2 years and 9 months stayed if Harris complied with certain conditions. In the Matter of Discipline of Stephen R. Harris, Docket No. 57507 (Order of Suspension, February 24, 2012). On May 24, 2012, Harris filed with the state bar a petition for reinstatement pursuant to SCR 116. On July 13, 2012, a hearing was commenced before a Northern Nevada Disciplinary Board reinstatement hearing panel. The hearing was continued to, and concluded on, September 27, 2012. The panel issued its findings of fact, conclusions of law and recommendation on October 16, 2012. The panel found that Harris had complied with the prior disciplinary panel’s recommendations, and concluded that he 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 Harris’s petition be granted, subject to the continuing terms and conditions of the previously-entered order of suspension. The panel further recommended that Harris be ordered to pay the costs of the proceedings within 30 days of Harris’ receipt of the state bar’s bill of costs. continued on page 44
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January 2013 Further, in a stipulation entered into by Harris and the state bar, Harris agreed to the imposition of two additional conditions: (1) that upon conclusion of the three-year suspension, if Harris is restored to access to a client trust account, that he will notify the state bar in writing of that fact; and (2) that Harris will continue to abstain from the use of alcohol for so long as he remains a licensed attorney in the state of Nevada. 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 previously imposed in the order of suspension. Accordingly, Stephen R. Harris is hereby reinstated to the practice of law, subject to the conditions set forth above, including payment of the cost of the proceedings within thirty days of the date of this order.
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.
1. Joiner filed an unverified answer to the first complaint denying any misconduct but failed to reply to the state bar’s motion to strike the unverified answer, attempt to file a verified answer or attend the disciplinary hearing. Nevertheless, this court reviewed the answer prior to deciding this matter. 2. Wolff has been suspended from the practice of law in Nevada for nonpayment of bar dues since June 29, 2010. 3. On June 24, 2009, Wolff was placed on interim suspension under North Dakota Rules for Lawyer Discipline 4.1 (criminal conduct) and 3.4(B) (threat of public harm); and North Dakota Rule of Professional Conduct 1.2(d) (counseling a client to engage, or assist a client, in conduct that a lawyer knows is criminal) because he had been charged with criminal conspiracy – unlawful possession of a controlled substance (cocaine). As discussed below, Wolff entered a guilty plea to attempted possession of controlled substance (cocaine), a Class A misdemeanor in January 2010. On June 7, 2010, Wolff’s interim suspension was continued under North Dakota Rule of Lawyer Discipline 4.1(C) and (D) based on his conviction for issuing a bank check with insufficient funds, a Class C felony. The initial interim suspension and the continuation of the interim suspension were imposed until final disposition of the disciplinary proceedings. It does not appear that Wolff notified bar counsel regarding these criminal matters, in violation of SCR 111(2). 4. The record reflects that on January 20, 2010, Wolff entered a guilty plea to attempted possession of controlled substance (cocaine), a Class A misdemeanor. 5. In North Dakota, a disbarred attorney can petition for reinstatement after five years from the effective date of the disbarment. In Nevada, disbarment is irrevocable. SCR 102(1).
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.
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