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Bar Counsel Report: March 2011

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bar counsel report
March 2011
SUPREME COURT OF NEVADA
In re: Bar No.: Docket No.: Filed: Robert S. Beckett 3383 57280 December 30, 2010
SOUTHERN NEVADA DISCIPLINARY BOARD
LETTER OF REPRIMAND
File No.: 10-037-2930
Letter of Reprimand imposed for failure to promptly distribute settlement funds to third party. Client complained to the State Bar of Nevada in August 2009 that she never saw or heard from Attorney after retaining his firm in March 2004. Client’s underlying matter apparently concerned medical problems resulting from mold exposure. Client lodged several complaints against the firm, including that it committed malpractice along with a general lack of communication from the firm. Client was upset about a $31,271.94 arbitration award, which she deemed low. She blamed the firm’s neglect of her matter for the result. Client’s grievance noted that Attorney was the attorney assigned to her matter. Attorney responded for himself as well as on behalf of the firm. Attorney’s first response to the state bar dated August 11, 2009, indicated that Attorney had contacted Client, who allegedly informed Attorney that she did not intend to complain about Attorney. Attorney’s response also claimed that the situation had been remedied. In early October 2009, Client informed the state bar that she had yet to receive any of the $36,000 awarded to her even though Attorney had informed her three months earlier that the funds had been received. Client again complained of a lack of communication concerning the firm. Prior to receiving Client’s October 2009 correspondence, the state bar had asked Attorney for a substantive response to Client’s grievance. Attorney’s response of October 8, 2009, detailed the facts of Client’s mold exposure case, which apparently occurred during her employment. Attorney’s response indicated that Attorney took over the case in July 2008. Attorney stated that both Attorney and the prior attorney handling the matter informed Client of the weaknesses in her case. The parties eventually agreed to binding arbitration with a minimum award of $25,000 and a maximum award of $100,000, which constituted the last two offers made at a previously-held mediation. Prior to arbitration, the opposing party offered $50,000 to settle the matter, which Client rejected. Attorney’s letter did not discuss the result of the arbitration proceeding. In regard to Client’s claim that no discovery was conducted, Attorney noted that the opposing party conceded mold exposure, and thus the sole question at issue was damages, and that her medical records were considered at the arbitration. Attorney indicated that an expert was obtained, but the report the expert provided did not include a review of Client’s medical records. Attorney concluded that Client’s grievance stemmed from a frustration over the amount of her arbitration award rather than any wrongdoing on Attorney’s part. Client’s reply maintained that the firm did little discovery in her matter, and stated that Attorney refused a request by the opposing side to retain an expert for the arbitration and split costs, and did nothing about the apparently faulty expert witness report. Apparently, Client’s family doctor testified at the hearing, but admitted her limitations. On December 29, 2009, the state bar sent both Attorney and the firm a follow-up letter asking of the disposition of the $36,000
ORDER OF TEMPORARY SUSPENSION AND REFERRAL TO DISCIPLINARY BOARD
Temporary suspension warranted following attorney’s conviction of a “serious crime” as defined by SCR 111. Bar Counsel for the State Bar of Nevada has filed a petition with this court pursuant to SCR 111 to report that attorney Robert S. Beckett has been convicted of obstructing a public officer. The petition is supported by documentation indicating that on November 2, 2010, in the Justice Court of Pahrump Township in Nye County, Nevada, Beckett entered a plea of no contest to the charge of obstructing a public officer, a misdemeanor in violation of NRS 199.280.1 Pursuant to SCR 111, temporary suspension and referral to the appropriate disciplinary board are mandatory when an attorney has been convicted of a “serious crime.” See SCR 111(6)-(8). “Serious” crime includes a crime less than a felony a necessary element of which is, as determined by its statutory or common-law definition, “interference with the administration of justice.” SCR 111(6). NRS 199.280 defines Beckett’s crime as the willful obstruction of a public officer in discharging or attempting to discharge any legal duty of his or her office, and his involves interference with the administration of justice. Accordingly, it is a serious crime requiring that he be temporarily suspended and referred for disciplinary proceedings. Accordingly, pursuant to SCR 111(7), we hereby temporarily suspend attorney Robert S. Beckett from the practice of law in Nevada. Furthermore, pursuant to SCR 111(8), we refer this matter to the Southern Nevada Disciplinary Board for the initiation of formal disciplinary proceedings in which the sole issue to be determined shall be the extent of the discipline to be imposed.
RESIGNATIONS (VOLUNTARY, NO DISCIPLINE PENDING)
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: Andrew Spalding Bar No. 9196 Case No. 57333 Filed 12/22/10
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bar counsel report
March 2011 that Client alleged was received on her behalf, especially in light that the arbitration had a minimum award of $25,000. On January 20, 2010, Attorney acknowledged that the firm had received a settlement check in the matter for approximately $30,000. However, the file was closed and sent to storage prior to any distribution being made. Attorney took full responsibility for the error, which Attorney deemed wholly unintentional. In a supplemental response dated April 6, 2010, Attorney explained that Client’s award was $31,271.94, plus reasonable costs and prejudgment interest. Of the amount, $4,229 was for past medical expenses. Attorney stated that the firm was currently seeking to determine the amounts owed to the medical providers and was awaiting information from other sources, such as a lien, which apparently had a subrogation interest in the litigation proceeds. After being contacted by the state bar seeking an update about the distribution on July 19, 2010, Attorney submitted another supplemental response on that same day describing Attorney’s efforts to resolve the lien. Attorney’s letter also indicated that Attorney alone should be held accountable for failing to promptly disburse Client’s settlement funds, and neither the firm nor anyone else in the office was to blame. Assistant Bar Counsel spoke with Attorney on September 23, 2010. Attorney indicated that Attorney’s office was still negotiating with the lienholder to reduce a subrogation lien which amounted to approximately $3,000. When asked whether any other funds were being contested, Attorney informed Assistant Bar Counsel that the entire amount was being held in trust pending resolution of the lien. However, no other funds were in dispute. After being informed that RPC 1.15(e) requires an attorney to promptly distribute all portions of funds which are not contested, Attorney indicated that Attorney would distribute all uncontested funds and forward the disbursement sheet to the state bar. Based upon the above, Attorney was REPRIMANDED in this matter for violating RPC 1.3 (Diligence), RPC 1.4 (Communication) and RPC 1.15 (Safekeeping Property). Attorney’s firm received the check in question in or about July 2009 but took no further action in Client’s matter until after the state bar requested an update in late December 2009. In fact, Attorney allowed the file to be closed without distributing the funds and only discovered so because of the state bar’s intervention. The issue would likely have been avoided if Attorney had been communicating with the client. had to pay a $500 sanction within 15 days or file the opening brief and appendix within 10 days. Attorney filed a motion for extension of time after the 10-day period in which to file the brief and appendix had expired. The court noted that Attorney did not pay the $500 sanction. On May 7, 2010, the court ordered Attorney to file and serve the opening brief and pay the sanction within 30 days. On June 11, 2010, Attorney filed the opening brief and appendix. However, the $500 sanction remained unpaid, resulting in the Supreme Court referring Attorney to the state bar on July 6, 2010. Attorney’s response to the state bar indicated that Attorney and another attorney took over the underlying case at trial level in an ultimately unsuccessful attempt to save it from being dismissed due to the five-year rule. The appeal followed. Attorney acknowledged Attorney’s delays in filing the opening brief with the Supreme Court. Attorney stated that, due to Attorney’s relative lack of appellant experience, Attorney relied on advice from the former attorney. Relying on this advice, Attorney awaited transcripts of all the court proceedings prior to filing the brief. Despite filing a request with the court, Attorney had not received them at the time Attorney responded to the state bar. However, after receiving the Supreme Court’s March 1 notice, Attorney again spoke with the former attorney, who advised Attorney to file a motion for enlargement of time in which to file the brief. Attorney waited for the former attorney to provide Attorney with a template form to use for the motion, which was ultimately filed on April 22, 2010. Attorney noted that, in the interim, that the Supreme Court issued its conditional sanctions order. The Supreme Court denied Attorney’s motion on May 7, 2010, and gave Attorney 30 days in which to file the opening brief. The brief was mailed to the Supreme Court on June 8, 2010, although the transcripts had not yet been received despite repeated attempts to obtain them. Attorney realized that Attorney had to file an electronic copy of the brief and appendix, and figured out how to do so in spite of Attorney’s limited experience with computers. The electronic version of the brief, as well as the $500 sanction, was sent to the Supreme Court and the Supreme Court Library, respectively, on July 6, 2010, which was the same day the Supreme Court referred Attorney to the state bar. In Attorney’s conclusion, Attorney took full responsibility for his actions and stated that Attorney would never do anything meant to disrespect the courts or the state bar. Attorney also attached copies of the documents cited in his response, including the front and back of the $500 check to the Supreme Court library dated July 6, 2010, which had been negotiated by the Supreme Court Library. Based upon the above, Attorney was REPRIMANDED in this matter for violating Rule of Professional Conduct (RPC) 3.4(c) (Fairness to Opposing Party and Counsel; knowingly disobeying and obligation under the rules of a tribunal). The panel noted that, although a formal hearing is usually held for any matters referred by the Supreme Court, in this instance, Attorney complied, although belatedly, with all the Supreme Court’s directives prior to Attorney receiving notice of the Supreme Court’s referral and the state bar’s investigation. Discipline Key on page 52
1. For purposes of SCR 111, Beckett’s plea of no contest qualifies as a “conviction” even though the terms of the plea agreement provide that the matter may be dismissed without an adjudication of guilt if Beckett completes an alcohol treatment program. See SCR 111(1). Beckett did not inform bar counsel of the conviction as required by SCR 111(2).
LETTER OF REPRIMAND
File No.: SG10-0199
Letter of Reprimand imposed for failure to promptly comply with Supreme Court orders. On July 6, 2010, the Nevada Supreme Court referred Attorney to the state bar for investigation and possible disciplinary action pursuant to SCR 105 for the Attorney’s action during a pending appeal. The Supreme Court’s July 6 order noted that on November 18, 2009, the appeal was removed from the Supreme Court’s settlement program and the appellants were given 90 days in which to file and serve the opening brief and appendix. On March 1, 2010, the Supreme Court issued a notice giving appellants 15 days in which to have the opening brief and appendix filed. However, the July 6 Order noted that Attorney did not respond to the notice. As a result, on March 31, 2010, the Supreme Court conditionally imposed sanctions. Attorney either
March 2011
Nevada Lawyer
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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.
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Nevada Lawyer March 2011
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