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Bar Counsel Report: March 2013

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bar counsel report
March 2013
In re: Bar No.: Docket No.: Filed: Richard L. Crane 9536 59168 January 10, 2013
Attorney suspended for three years after conviction of coercion (sexually motivated). This is an automatic review, pursuant to SCR 105(3)(b), of a Southern Nevada Disciplinary Board hearing panel’s findings that attorney Richard L. Crane violated one rule of professional conduct, and its recommendation that he be suspended from the practice of law for six months and one day. The underlying facts in this matter provide that Crane was convicted, pursuant to a guilty plea, of coercion (sexually motivated), a felony in violation of NRS 207.193 and NRS 175.547, on October 4, 2010. Crane was given a suspended sentence and placed on probation for an indeterminate period not to exceed five years. On October 7, 2010, Crane self-reported his conviction to the state bar pursuant to SCR 111(2). The state bar filed a petition pursuant to bar counsel’s reporting requirements as detailed in SCR 111, and this court ordered Crane temporarily suspended on November 15, 2010. In re: Discipline of Crane, Docket No. 57121 (Order of Temporary Suspension and Referral to Disciplinary Board, November 15, 2010). During the formal disciplinary hearing, Crane admitted to communicating with what he believed to be a 15-year-old minor, agreeing to and arriving at an in-person meeting and being arrested by officers at that time. Evidence regarding those communications confirms that significant portions were sexual in nature. The disciplinary panel found that Crane violated RPC 8.4(b) (misconduct). 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 re Stuhff 108 Nev. 629, 633, 837 P.2d 853, 855 (1992). We conclude that clear and convincing evidence supports the panel’s findings and that Crane violated RPC 8.4(b) (misconduct). SCR 105(2)(e). The panel further recommended that Crane be (1) suspended from the practice of law for six months and one day from July 8, 2011; and (2) required to submit full payment for the costs of the disciplinary proceeding pursuant to SCR 120 within 30 days of receipt of the State Bar of Nevada’s bill of costs. Having reviewed the record, we agree that the panel’s recommendation of suspension is an appropriate discipline tailored to these circumstances. However, we conclude that the seriousness of Crane’s offense warrants a three-year suspension, retroactive to the date of his initial suspension on November 15, 2010. Further, we order that any petition for reinstatement must demonstrate proof that Crane has (1) continued to seek psychosexual therapy with Mr. John Pacult, a licensed clinical social worker, or a similarly situated professional; (2) met all the requirements and conditions of his criminal probation;
and (3) abstained from any further criminal or professional misconduct. Should Crane 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. If, however, Crane offers such proof and reinstatement is to be granted, Crane’s reinstatement will still be subject to the condition that he be on probation for two years from the date of reinstatement, with the terms and conditions of probation to be decided by state bar counsel. Crane shall also pay the costs of the disciplinary proceedings within 30 days of receipt of the State Bar of Nevada’s bill of costs. See SCR 120. Crane and the state bar shall comply with all requirements of SCR 115 and SCR 121.1. It is so ORDERED.
In re: Bar No.: Docket No.: Filed:
Ramon Dy-Ragos 10343 62094 January 25, 2013
Attorney temporarily suspended following a conviction of a “serious crime” as defined in SCR 111. Bar counsel for the State Bar of Nevada has filed a petition pursuant to the reporting requirements of SCR 111 regarding attorney Ramon Dy-Ragos. The petition is supported by documents indicating that on June 13, 2012, Dy-Ragos pleaded guilty to conspiracy to commit disorderly conduct, a gross misdemeanor under NRS 269.215 and 199.480.1 Dy-Ragos was given a suspended sentence and placed on probation for an indeterminate period of time not to exceed two years. He informed bar counsel of the conviction as required by SCR 111(2). 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). A “serious” crime includes a felony and “any crime less than a felony a necessary element of which is… misrepresentation, fraud… or a conspiracy or solicitation of another to commit a ‘serious crime.’” SCR 111(6). Dy-Ragos was convicted of one gross misdemeanor count of conspiracy to commit disorderly conduct in violation of NRS 269.215 (authority to prevent, punish and restrain any disorderly conduct) and NRS 199.480 (conspiracy to commit disorderly conduct) as he and two other individuals promoted a foreclosure defense firm in which they misrepresented to the public their ability to prevent individual home foreclosures, required large up-front fees and performed little or no work in connection with the services promised. Under NRS 199.480(d) and (g), a person is guilty of gross misdemeanor conspiracy when that person conspires with at least one other individual to “cheat or defraud another out of any property by unlawful or fraudulent means,” or “accomplish any criminal or unlawful purpose, or to accomplish a purpose, not in itself criminal or unlawful, by criminal or unlawful means.” Having reviewed the petition and supporting documentation submitted by bar counsel, we conclude that DyRagos falsely promoted his company, misrepresented services to his clients and conspired with two other individuals in the
Nevada Lawyer March 2013
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March 2013 commission of this misconduct. This constitutes a serious crime as defined under SCR 111(6). Accordingly, we temporarily suspend Dy-Ragos from the practice of law in Nevada 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 shall be the extent of the discipline to be imposed. SCR 111(7), (8). It is so ORDERED. transaction with a client, charging an unreasonable fee to client, and charging client for defending the state bar action. TO: RODNEY SUMPTER ESQ. Your client (Client) was experiencing financial hardships, including the foreclosure on his home. You claim that the various real estate transactions involving Client came about in the following manner: Client inherited two properties from a long-time partner, who died while the two gentlemen were residing in Canada. Client wished to further develop the properties and secured financing from some private investors; these private investors were placed on the deeds to the properties on March 2, 2007. The investors eventually failed to make the mortgage payments, sending the property into foreclosure. After the private investors were placed on the deed, they borrowed against the property’s equity and paid Client a portion of the proceeds. Client then placed $20,000 in a trust account with your office, intending the money to be used for future land development and associated fees. When the bank foreclosed on the property, Client, then faced with eviction, approached you asking if he could use your credit to purchase the property back from the bank. On August 8, 2008, two deeds and corresponding deeds of trust were recorded, placing you exclusively on the titles of both your residence and the adjoining property. In order to satisfy your ability to assume the obligation, Client advised you that he had secured a third person of appropriate age to obtain a reverse mortgage so that, after the property was reacquired, the reverse mortgage would be put in place. You were to take out a loan which would then be satisfied by the proceeds from the reverse mortgage. Because the reverse mortgage required the elderly person to be on the title of her residence, you caused her name to be added to the deed on January 16, 2009. As a condition, you requested a deed to re-convey the property in the event of a default or a failure to perform. The transaction involved you obtaining a loan, which you did for $90,000, secured by the two properties. On August 8, 2008, the transaction was consummated through an escrow account at Ticor Title and your office paid closing costs from the monies held in trust for Client at his request. Client then asked you to prepare a deed in which the elderly person would appear as a joint tenant for her property. This was accomplished on January 16, 2009; however, they were unable to secure the reverse mortgage that was the motivation for all of the real estate transactions. The $90,000 loan that you obtained for the benefit of Client was to be paid off by August 8, 2009, with the proceeds from the reverse mortgage that was never obtained. A one-year extension (a copy of which was included with grievance) was granted by the lender for $90,975. Client provided several responses requesting that the bar demand you relinquish the properties to them and replenish the $20,000 in trust money. Client maintains that you were never instructed to take legal fees out of the trust money and should have held that money for your client’s future rental/mortgage payments and living expenses. continued on page 46
In re: Bar No.: Docket No.: Filed:
Vincent Savarese, III 2467 62046 January 10, 2013
Attorney reinstated with conditions from disability inactive status. This is a petition under SCR 117 for reinstatement from disability inactive status by attorney Vincent Savarese, III. In March 1994, this court transferred Savarese to disability inactive status.2 See In re: Disability of Vincent Savarese, III, Docket No, 25379 (Order of Transfer to Disability Inactive Status, March 14, 1994). A hearing regarding reinstatement was held before a panel of the Southern Nevada Disciplinary Board. The record of the hearing panel’s proceedings has been filed with this court.3 The hearing panel found that Savarese demonstrated by clear and convincing evidence that his disability has been removed and that he is fit to resume the practice of law. See SCR 117(4), (5). The hearing panel recommended that Savarese be reinstated to practice law and that he attend meetings of Lawyers Concerned for Lawyers twice a month for the first year of his reinstatement. Having reviewed the record, we conclude that clear and convincing evidence supports the panel’s findings that Savarese’s disability has been removed, and that he is fit to resume the practice of law. See SCR 117(4), (5). We further approve the recommendation that Savarese attend two meetings of the Lawyers Concerned for Lawyers every month for the first year of his reinstatement. He shall pay the costs of the reinstatement proceedings within 30 days of the date of this order. We further direct that any disciplinary proceedings against Savarese may resume. See SCR 117(4).
PUBLIC REPRIMAND In re: Bar No.: File No.: Filed: Rodney Sumpter, Esq. 899 N10-20-332 October 10, 2012
Public Reprimand imposed for failure to obtain a written disclosure or agreement before entering into a business
March 2013 Nevada Lawyer
bar counsel report
March 2013 You paid your law firm from the trust account for legal fees and costs which were incurred as a result of the various real estate transactions including fees to defend the instant bar complaint. Rule of Professional Conduct (RPC) 1.8(a) provides: A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: 1. The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; The client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and The client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction. for two unrelated claimants involved in vehicle accidents with one of company’s insured drivers. Both letters provided, as follows: Please be advised that this office represents our client . . . for personal injuries and property damage arising from the collision. This office has a lien on our client’s cause of action and any recoveries thereunder. Please include our name, Zhengyi Law Group, Ltd., as payee on any and all settlement drafts and advances, whether or not this office still represents our client at the time of settlement or resolution of the subject claim. Please provide written confirmation of coverage to this office at your earliest convenience If you have any questions please do not hesitate to contact me. Very Truly Yours /s/ Xin Wang, Esq. Such conduct constitutes the unauthorized practice of law. See, In re Discipline of Lerner 124 Nev. 1232, 1241-2, 197 P.3d 1067 (2003) (Practice of law includes decision to represent a particular client, negotiating claims with insurance companies, speaking on clients’ behalf and preparing and signing demand letters); In re: Jackman, 761 A2d 1103 (NJ. 2000) (Non-licensed attorney engaged in practice of law when he interviewed and counseled clients, prepared and signed documents to or on behalf of clients, and negotiated with lawyers). The hearing panel found in aggravation the fact that you have been previously disciplined for the same rule violation. The panel considered in mitigation the facts that the second discipline sanction was issued shortly after you wrote the letters above. In addition, the panel noted that you have acknowledged the error of your conduct, have cooperated in the disciplinary proceedings and have instituted changes in your law practice to ensure that such conduct is not repeated. Based upon the foregoing, you are hereby PUBLICLY REPRIMANDED for violation of Rule of Professional Conduct 5.5 (Unauthorized practice of law).
You violated this rule, as there were no written disclosures or agreements with Client satisfying any of the requirements in RPC 1.8. You further violated RPC 1.5 by charging an unreasonable fee, by failing to account to Client for the fees charged and for billing Client for fees you incurred in defending the state bar action. In light of the forgoing, you have violated Rule of Professional Conduct (RPC) 1.8 (a) (Conflict of Interest: Current Clients; Specific Rules) and RPC 1.5 (b) (Fees).
PUBLIC REPRIMAND In re: Bar No.: File No.: Filed: Xin Q. Wang, Esq. New York Bar No. 4157079 SG10-0820 September 12, 2012
PUBLIC REPRIMAND In re: Bar No.: File No.: Filed: Kurt D. Elkins, Esq. California Bar No. 241562 SG10-0060 January 23, 2013
Public Reprimand imposed on New York lawyer for engaging in unauthorized practice of law in the State of Nevada. TO: XIN Q. WANG ESQ. You are a licensed attorney in the state of New York. You maintain offices in Nevada and practice Immigration law and handle federal matters. At no time have you ever been licensed to practice law in the state of Nevada or authorized to practice or appear in any court, pursuant to Nevada Supreme Court Rules. On September 23 and 24, 2010, you wrote two separate letters of representation to an Insurance adjuster
Public Reprimand imposed on California lawyer for making a false statement of material fact to the State Bar of Nevada regarding representation of a Nevada client. TO: KURT D. ELKINS, ESQ. California attorney Paul J. Molinaro filed a grievance with the State Bar of Nevada in January 2010, against you, in connection with a loan modification concerning his client (Client), of Las Vegas, Nevada. Client retained Greenleaf Modify, Inc. d/b/a U.S. Homeowners’ Relief (Greenleaf) to assist him in obtaining a loan modification. Client was told by Greenleaf employees that you
Nevada Lawyer March 2013
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March 2013 would be the attorney representing Client in his efforts to obtain a modification. Molinaro provided records to support his assertions including an Engagement Agreement between Client and Greenleaf, evidence of payments to Greenleaf in the amount of $4,250, an invoice from US. Homeowners Relief to the Client and correspondence he forwarded to U.S. Homeowners Relief, demanding the return of the funds paid. Molinaro also produced a copy of a letter dated February 5, 2009, sent, on your letterhead with your signature, to Countrywide Home Loans, regarding Client’s Nevada property. The letter stated that your “investigations have revealed several potential violations of law, including, among others, common law fraud and constructive fraud, in violation of the Real Estate Settlement Procedures Act (RESPA).” The letter went on to state that “it is clear that the broker breached his fiduciary duty to the lender” and suggested a modification of the terms of the existing loan and asked that Countrywide contact your office to discuss this matter in detail. Client did not receive a loan modification and his efforts at obtaining a refund were refused. In January of 2010, Molinaro contacted you on behalf of Client regarding the failure to secure a loan modification for Client’s Nevada property. You told Molinaro that you never represented Client. On or about June 2010, Bar Counsel sent correspondence to your attention, asking for an explanation of this matter. You sent a letter in response stating that you had never represented Client, that your identity was stolen, your signature was forged and that you had made a police report on the identify theft. Bar Counsel obtained a copy of the police report, which did allege that Greenleaf had improperly used your identity. However, the police report also confirmed that you did perform work for U.S. Homeowners’ Relief from January to April 2009. This was the period during which the letter in question was drafted. The February 5, 2009, letter to Countrywide Home Loans regarding Client was sent via facsimile. The facsimile line on the letter notates it was sent from Power Brokers (714) 2790011 on February 13, 2009, at 5:21, a company you formed. In subsequent communications following the filing of the complaint, you stated that you had been doing general counsel work for a few modification companies, including Greenleaf. You stated that when you responded to the state bar, you had confused the timeline for your association with Greenleaf and conceded that the letter in question was issued by your office as part of your representation of Greenleaf. You confirmed that no fee agreement had been entered into between your law firm and Elder, no funds had been paid by Elder to your law firm and that you had never met with or spoken to Elder. You stated that you were not aware that Greenleaf employees were using your law firm name in their advertising materials or misrepresenting to their customers that you were their retained counsel. You stated that you examined files and prepared letters as requested by Greenleaf and had no contact with any of the customers of Greenleaf directly. In light of the foregoing, you violated Rule of Professional Conduct 1.3 (Diligence) and RPC 8.1(a) (Bar Admission and Disciplinary Matters) and are hereby PUBLICLY REPRIMANDED.
1. For purposes of SCR 111, Dy-Ragos’s guilty plea qualifies as a “conviction” regardless of whether or not he has received a signed judgment of conviction. See SCR 111(1). 2. SCR 117 became effective on February 15, 1979, and has been amended and the subsections renumbered since that time. The amendments do not change the substance of our analysis; for clarity, the citations in the text are to the current SCR 117. 3. A medical assessment dated May 3, 2012, and a lab report dated April 16, 2012, were filed under seal.
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):
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.
March 2013 Nevada Lawyer

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