Share |

Bar Counsel Report: July 2009

Embedded Scribd iPaper - Requires Javascript and Flash Player
J U LY 2 0 0 9
NEVADA LAWYER
SuPreMe court oF nevada
in re: Bar no: docket no: Filed: Joshua M. landish 289 53144 May 11, 2009
PuBlic rePriMand: TO: GLEN LERNER, ESQ. Respondent, and/or his law firm, Glen Lerner & Associates, represented Mario Lino in a criminal matter wherein Lino was charged with murder, as it was alleged that he killed his wife’s lover. Lino was arrested on April 27, 2007. On July 30, 2007, Lino’s Justice Court case was ordered to stand trial in the Eighth Judicial District Court. On August 14, 2007, Respondent’s associate attorney, Carl Arnold (“Arnold”), was present in District Court with Lino when he pleaded not guilty and waived his right to a speedy trial. The trial was scheduled for January 22, 2008, with a calendar call of January 15, 2008. Arnold filed a motion to suppress Lino’s confession and a request for an evidentiary hearing on November 8, 2007. The hearing on the suppression motion and the evidentiary hearing were both scheduled for January 18, 2008. Arnold filed a motion to withdraw as counsel of record on December 24, 2007. This hearing was scheduled for January 8, 2008. In the body of the motion, Arnold identified the wrong client but did reference Lino in the affidavit and certificate of mailing. According to the transcripts of the hearing on the motion to withdraw, District Judge Michelle Leavitt stated that the motion filed by Arnold did not deal with defendant Lino, but another plaintiff in another matter. She further stated that she needed more than just “an impasse” to grant a withdrawal of counsel. The motion was denied. Lino informed the court during that hearing that he had only seen Arnold one time. Arnold countered that by stating that he had seen Lino three to four times. Arnold then informed the court that this case was actually the matter of his supervising attorney, Glen Lerner. A calendar call was held on January 15, 2008. Neither Arnold nor Respondent appeared at the hearing. According to the transcript of the hearing, Deputy District Attorney Shannon Clowers stated that Arnold was not returning her telephone calls and Lino informed the court that neither Respondent nor Arnold visited him at Clark County Detention Center as previously ordered. The court ordered that the trial date of January 22, 2008, stand. All matters previously calendared for January 18 were to be heard on January 22. On January 22, the trial was scheduled to begin and
bAr COunSEL rEPOrT
50
order oF tranSFer to diSaBility inactive StatuS and reFerral For eXaMination By QualiFied Medical eXPert Attorney transferred to disability inactive status. Bar counsel for the State Bar of Nevada and attorney Joshua M. Landish have jointly petitioned this court for an order transferring Landish to disability inactive status. Having reviewed the petition and its attachments, we conclude that Landish should be transferred to disability inactive status pending further determination by a qualified medical expert of Landish’s capacity to practice law. Accordingly, Joshua M. Landish is transferred to disability inactive status until further order of this court. Any pending disciplinary proceedings against Landish are suspended. Pursuant to SCR 117(2) and (3), within 30 days from the date of this order, Landish shall submit to examination by a Nevada-licensed medical expert (i.e., psychologist or psychiatrist) for determination of his capacity to continue to practice law. The medical expert’s report regarding Landish’s capacity to practice law shall be filed by Landish’s counsel in this matter within 40 days from the date of this order. The state bar shall effect notice of this order as required under SCR 121.1. Bar counsel shall provide this court with proof that notice has been served.
JULY 2009
Southern nevada diSciPlinary Board
in re: Glen lerner, esq. Bar no.: 4314 case no: 08-014-0781 issued: May 15, 2009 Public reprimand warranted where attorney failed to appear on the first day of a criminal trial and failed to communicate with his client.
NEVADA LAWYER
J U LY 2 0 0 9
the motions were to be heard. Appearing for Lino was attorney Daniel Ingrassia, an associate from Lerner’s firm. Respondent and Arnold were not present. According to the transcript of the hearing, Ingrassia informed the court that Arnold was in Phoenix for a deposition and had not yet returned. The court asked Ingrassia why he was there and if he was prepared to try the case. Ingrassia stated that he was not there to try the case and had no criminal experience. He explained that Respondent was in Pennsylvania on family business that he could not get out of. Ingrassia explained that he was appearing to get a continuance. Leavitt explained that that no one asks for a continuance on the day of trial. She stated that there were 56 members of the community waiting for jury selection. Further, Leavitt stated that she was under the impression that Arnold was counsel-of-record because he appeared at every hearing, not Respondent. Respondent had not made an appearance in District Court but was present for the Justice Court preliminary hearing. Clowers informed the court that she spoke with Arnold after the calendar call and Arnold informed Clowers that Respondent would be ready to go forward with the trial. Arnold also informed her that Respondent would be withdrawing the motion to suppress. This conversation was memorialized in a letter that was sent to the court by Clowers. Chief Deputy District Attorney Roy Nelson stated that he had been in contact with Respondent regarding negotiations. Nelson provided the court with a voice-mail message he received on January 18 from Arnold, wherein he read an e-mail from Respondent. According to the voice-mail of Arnold, the e-mail stated that the defendant was overcharged and Respondent would accept a plea of 20 years. Nelson stated that he informed Arnold that they would not accept the plea and would see Arnold and Respondent in court. Arnold informed Nelson that Respondent would not be there. On the day before the trial, Nelson received a subsequent voicemail from Respondent wherein he reiterated his offer of 20 years. The transcript stated that Lino was asked by Leavitt if Respondent had told him that he was not showing up for trial. Lino stated that he had not spoken with Respondent or Arnold. Leavitt asked him if he wanted Respondent to continue representation or if he wanted to be referred back to the public defender office. Lino chose the latter. Leavitt issued an order to show cause to both Respondent and Arnold. The matter was also referred to the State Bar of Nevada for investigation by bench order
by Leavitt on January 18, 2008. The show cause hearing was scheduled for February 4, 2008, but was continued to March 14, 2008. Attorney Dominic Gentile represented Respondent and Arnold. A joint response to the show cause order was filed stating that the failure to appear at the trial was not intended to disrespect the court but due to a conflict between Respondent and Lino; failure to calendar the trial; and miscommunication between Respondent and Arnold. Further, Respondent and Arnold stated that because the motion to suppress was to be heard on that date, they were working under the assumption that the trial would not proceed. Declarations were attached to the response. Respondent stated in his declaration that as of November 2007, he was in Pennsylvania on a sabbatical but had contact with his office on a regular basis and returned to Las Vegas every two weeks. At the show cause hearing, the court accepted the apologies of Respondent and Arnold and found them to be sincere. The court found that there was failure to give reasonable attention and failure to appear at calendar call. The court ordered sanctions in the amount of $2,240 payable to Jury Services for the 56 prospective jurors who reported to the court, $250 to the State of Nevada as to their expenses of bringing out-ofstate witnesses to the first day of trial, and the sum of $9,600, which represents reasonable attorney fees as a result of the Public Defender’s Office having to step in, and $2,500 to the Clark County Public Defender’s office for the appearance of Dr. Paglini. The fines were to be paid to the Clark County General Fund. Thereafter, Respondent has made complete payment regarding all these sanctions. The order regarding order to show cause why defense counsel should not be held in contempt of court for failure to appear for their client’s murder trial was filed on September 2, 2008. In it, Leavitt found that Respondents’ actions were not intended to disrespect the court or diminish the dignity of its proceedings and further found that the actions did not constitute contempt of court. Pursuant to SCR 102.5(2) (Aggravation and Mitigation), the mitigating circumstances that were considerations or factors are as follows:
COnTInuEd On PAgE 52
bAr COunSEL rEPOrT
51 13
JULY 2009
J U LY 2 0 0 9
NEVADA LAWYER
bAr COunSEL rEPOrT
a. Respondent has been cooperative with the State Bar of Nevada during its investigation of this matter. b. Monetary and public sanctions already have been imposed upon Respondent by the Eighth Judicial District Court and have been satisfied. c. The court did not find that Respondent was in contempt of court for failure to appear at the murder trial. To the contrary, the court found that Respondent’s actions were not intended to disrespect the court or diminish the dignity of the proceedings. Based on the foregoing, Respondent violated Rule of Professional Conduct (“RPC”) 1.3 (Diligence), RPC 1.4 (Communication), and RPC 3.2(a) (Expediting Litigation) and is hereby PuBlicly rePriManded.
(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: arthur G. noxon Bar No. 981 Order 53496 Filed 05/20/09 erin e. ehlert Bar No. 6282 Order 53495 Filed 05/20/09 lilli c. hitt Bar No. 7383 Order 53188 Filed 05/20/09
1. See SCR 121 (Confidentiality) as amended eff. March 1, 2007.
northern nevada diSciPlinary Board
letterS oF (Private) rePriMand2 File no. 08-134-2924 Letter of reprimand appropriate when attorney failed to file an appeal in a workers compensation matter. Client hired Attorney in connection with a workers’ compensation matter. On or about May 27, 2008, Client received an adverse decision and order from the state hearing officer considering his matter. The order affirmed the prior denial of Client’s claim by his insurer. Although the May 27 order clearly stated that deadline for appealing the decision was 30 days, Attorney did not file an appeal. In his response to the State Bar of Nevada, Attorney acknowledged that his office did not file the appeal even though the deadline date of June 26, 2008, had been placed onto the calendars of his and his secretary. In fact, Attorney explained to the state bar that, “We believed the appeal had been filed.” Attorney was reprimanded for violating Supreme Court Rule/Rule of Professional Conduct 1.3 (Diligence). reSiGnationS (voluntary, no diSciPline PendinG)
S.C.R. 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:
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): http://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.
JULY 2009
52

Published under a Creative Commons License By attribution, non-commercial
AttachmentSize
NevLawyer_July_2009_BarCounsel.pdf278.67 KB