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Bar Counsel Report: October 2009

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OCTOBER 2009
NEVADA LAWYER
SUPREME COURT OF NEVADA
In re: Bar No: Docket No: Filed: Alex B. Ghibaudo 10592 54164 August 7, 2009
bAR COunSEL REPORT
ORDER OF TEMPORARY SUSPENSION
Attorney temporarily suspended from the practice of law pending resolution of formal disciplinary proceedings. This is a joint petition filed by the Southern Nevada Disciplinary Board chair and Alex B. Ghibaudo, Esq., for an order temporarily suspending attorney Ghibaudo from the practice of law, pending the resolution of formal disciplinary proceedings against him. The petition and supporting documentation demonstrate that Ghibaudo appears to have: (1) repeatedly abandoned clients; (2) not provided an accounting of funds received from clients despite requests from clients and the State Bar of Nevada; (3) failed to respond to the Office of Bar Counsel after repeated requests regarding multiple grievance files; and (4) made numerous unprofessional and demeaning telephone calls to two other attorneys. SCR 102(4)(a) provides, in pertinent part: On the petition of a disciplinary board, signed by its chair or vice-chair, supported by an affidavit alleging facts personally known to the affiant, which shows that an attorney appears to be posing a substantial threat of serious harm to the public, the Supreme Court may prescribe the attorney’s immediate temporary suspension or may impose other conditions upon the attorney’s practice. In addition, SCR 102(4)(b) provides that we may place restrictions on an attorney’s handling of funds. We conclude that the documentation before us demonstrates that Ghibaudo poses a substantial threat of serious harm to the public, and that his immediate temporary suspension is warranted.1 We further conclude that Ghibaudo’s handling of funds should be restricted.2
Accordingly, Ghibaudo is temporarily suspended from the practice of law, pending the resolution of formal disciplinary proceedings against him.3 In addition, Ghibaudo is prohibited from withdrawing any funds from any and all accounts relating in any way to his law practice, including but not limited to his general and trust accounts, except upon written approval of bar counsel or by order of a court of competent jurisdiction.4 The state bar shall immediately serve Ghibaudo with a copy of this order. Such service may be accomplished by personal service, certified mail, delivery to a person of suitable age at Ghibaudo’s law office or residence, or by publication. When served on either Ghibaudo or a depository in which he maintains an account, this order shall constitute an injunction against withdrawal of the proceeds except in accordance with the terms of this order.5 It is so ORDERED.6
OCTOBER 2009
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: (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 member resigned pursuant to this rule: Melvin Bowers, Jr. Bar No. 2541 Order 54022 Filed 07/21/09 Darren Elias Bar No. 5293 Order 54018 Filed 07/21/09 Timothy Edward Elliott Bar No. 8440 Order 54020 Filed 07/21/09
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NEVADA LAWYER
OCTOBER 2009
SOUTHERN NEVADA DISCIPLINARY BOARD
LETTERS OF (PRIVATE) REPRIMAND7 File No. 08-127-1810
Attorney received a letter of reprimand and was fined $1,000 for failing to respond to the State Bar of Nevada. Attorney paid the fine. Client retained Attorney to represent him in a personal injury matter that occurred in February 2003, when he was struck by a drunk driver while walking on the sidewalk. Client grieved to the State Bar of Nevada that his case settled for $15,000 and he did not receive “one penny” from Attorney. Client also alleged that he gave Attorney $300 to handle a traffic ticket but he never heard from Attorney about that, either. Attorney provided a copy of an “Acknowledgment of Uninsured/Underinsured Motorist Payment/Reservation of Subrogation Rights Retained” that was signed by Client on July 12, 2004. Attorney also provided a settlement memorandum, signed by Client on the same date, which details the distribution of the settlement proceeds. Attorney received $16,637 in attorney’s fees and costs, leaving no money to pay liens or the client. On September 10, 2008, the state bar sent a letter to Attorney requesting that Attorney provide a copy of Attorney’s retainer agreement and an explanation of the breakdown of the costs that Attorney assessed Client, including $4,750 in legal research, $1,725 in lien/ subrogation analysis and $1,775 for legal research for liability dispute. Attorney was also asked to explain what happened to Client’s traffic ticket. Attorney provided his retainer agreement on October 3, 2008. It stated that costs in the minimum of $250 would be charged as “overhead” for reimbursement of general office expenses such as copies, postage and overnight mailing fees. However, Attorney charged Client $500 in overhead, plus extra copies, litigation costs, overnight package and suit prep services. Attorney further explained that Client’s case was not a single-issue case. Attorney stated that Attorney attempted to locate the at-fault party to hold the tortfeasor accountable but the driver was a Texas resident and could not be located. Client also asked Attorney to assist
him with a lawsuit that was filed by Farmer’s Insurance against Client. Lastly, Attorney was asked to help Client in a subrogation claim that his insurance company may have against any settlement that was obtained from a third party. These issues were all researched by Attorney via Westlaw and were charged against Client’s file. Attorney stated that initially the UM/UIM carrier balked at settling the matter but after researching the matter, they agreed to settle the claim for the $15,000 policy limits. “Thus, this extra work proved valuable to Mr. Client. Cost $4,750.00. Benefit, $15,000.” However, the extra work only appears to have benefited Attorney. Pursuant to SCR 102.5, the screening panel considered as aggravation his prior discipline, including the prior Letter of Reprimand Attorney received in November 2007 for overcharging a client for fees. The panel was very disturbed by the pattern of misconduct and contemplated a recommendation of a formal hearing. The panel was also very disturbed that Attorney never responded to the state bar regarding the status of Client’s traffic ticket, even after receiving two letters requesting the same. However, the panel also considered in mitigation that this case occurred during the same time period as the prior matter in which Attorney have already been disciplined. Further, the prior Formal Hearing Panel took into consideration at that time Attorney’s ill health and this screening panel acknowledged that in this matter. Accordingly, Attorney was reprimanded and fined $1,000 for violating Rule of Professional Conduct (RPC) 1.5 (Fees) and RPC 8.1(b) (Bar Admission and Disciplinary Matters: knowingly fail to respond to a lawful demand for information).
bAR COunSEL REPORT
OCTOBER 2009
File No. 09-061-1953
Letter of reprimand appropriate when Attorney allowed his nonlawyer assistant to engage in the unauthorized practice of law. Restitution in the amount of $725 was awarded to the Client. In March 2008, Client retained Attorney regarding a Chapter 7 bankruptcy petition, which was filed. Client successfully obtained a discharge of the matter in December 2008. However, Client claimed that the only
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time she met with Attorney was at the trustee meeting for her matter. At all other times, her contact was solely with Attorney’s nonlawyer assistant. According to Client, she had previously contacted Attorney’s office regarding keeping her vehicle and was informed by the nonlawyer assistant that she could keep the vehicle and continue making payments until the car was fully paid. However, on January 15, 2009, Client’s car was repossessed. She subsequently was informed that she had never returned either of the reaffirmation agreements that had been sent to Attorney’s office. Client claimed that she was never informed by Attorney’s office that a reaffirmation agreement was required in order for her to keep her vehicle. After her car was repossessed, Client contacted Attorney’s office, and the nonlawyer assistant informed her to sign the reaffirmation agreement. Client subsequently signed the agreement and provided it to Attorney’s office. Client submitted her grievance to the State Bar of Nevada on February 6, 2009, claiming that her car was currently at auction, and the reaffirmation agreement still had not been filed as of the date of her letter. Attorney’s response to the state bar indicated that Attorney was retained in March 2008 and that Client successfully received a discharge. After the Client’s car was repossessed, Attorney filed a motion to reopen the Chapter 7 case on January 23, 2009. On February 9, 2009, the motion to reopen was granted and the reaffirmation agreement was subsequently filed. Client apparently regained possession of her vehicle on February 11, 2009. Attorney’s response did not state whether Attorney ever informed or advised Client that a reaffirmation agreement was required to keep her vehicle, nor did Attorney’s letter dispute that Attorney did not meet with Client when she retained his firm. Client’s reply to Attorney’s response to the state bar maintained that she was never informed that she needed to sign a reaffirmation agreement, and as a result, her vehicle was repossessed, causing her to lose $265 because she missed three days from work. In addition, Client had to pay $60 in storage fees, a $25 handling fee and a $375 repossession fee. Client provided receipts for these three charges.
The Office of Bar Counsel contacted Client regarding her allegations that she only met with Attorney once at the trustee meeting for her bankruptcy matter, and specifically asked her with whom she met when retaining Attorney’s firm. Client stated that she met with nonlawyer assistant at the initial consultation when she retained Attorney’s services. Although Attorney was able to assist Client in regarding possession of her vehicle, the issue could have been avoided if Attorney had initially met with Attorney’s client, and communicated directly with Attorney’s client regarding the legal issues involved in her matter, instead of delegating Attorney’s responsibilities to a nonlawyer assistant. The practice of law is involved when an activity requires the exercise of judgment in applying general legal knowledge to a client’s specific problem. As such, the decision of whether to represent a particular client calls for an exercise of professional judgment and cannot be delegated to a nonattorney. Accordingly, the attorney/ client relationship must be formed with an attorney, and any legal analysis for the client’s case must be performed by an attorney. See, e.g., In re Lerner, __ Nev. __, 197 P.3d 1067, 1074 (2008) (delegating exercise of professional judgment to paralegal with respect to such matters as entry of contract with client and evaluation of client’s claim deemed to be aiding nonlawyer in the unauthorized practice of law). Attorney was hereby reprimanded in this matter for violating RPC 1.4 (Communication), RPC 5.3 (Responsibilities Regarding Nonlawyer Assistants) and RPC 5.5 (Unauthorized Practice of Law). Given that the circumstance of Attorney’s improper delegation of authority to Attorney’s assistant was largely, if not entirely, responsible for Client’s predicament, the panel also ordered that Attorney pay restitution to Client in the amount of $725 pursuant to Supreme Court Rule 102(6) (Types of Discipline).
bAR COunSEL REPORT
OCTOBER 2009
File No. 08-060-2819
Attorney received a letter of reprimand for failure to return the file to Client after representation was terminated. Restitution in the amount of $1,000 was also ordered. Client retained Attorney to assist her with eviction and foreclosure matters as well as various contractual matters concerning her properties. Client alleged that during an
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eviction hearing in August 2007, Attorney showed up looking like Attorney had just rolled out of bed with a stench of alcohol and was shaking. During that same hearing, Client alleged she provided Attorney with an outline of the events that had taken place and while holding the paperwork Attorney continued to shake. Client stated that she asked for her files to be mailed directly to her in order for her to obtain new counsel. The files were mailed to Client; however, she claims some paperwork was missing from the files. In Attorney’s response to the State Bar of Nevada, Attorney stated the entirety of the file was sent to Client when his legal relationship was terminated. The same correspondence explained that numerous attempts were made to locate the file materials that Client alleged as missing but those documents were no longer in Attorney’s possession. However, it was Attorney’s candid response in the second correspondence sent to the Office of Bar Counsel that addressed the concerns regarding the allegations of a drinking problem. The closing statement in Attorney’s correspondence to the state bar stated “I am aware that I had problems during my representation of Client and that they may have affected my representation of her. I was in denial about that fact for some time and I regret that immensely. Simply put, I did not realize I had a problem until it was too late. As such, I humbly request leniency from the Disciplinary Board regarding this matter…. I am beginning to turn things around. Again, I am not looking to make excuses, but I do want the Board to understand my situation.” The Office of Bar Counsel wanted to convey to Attorney that they respect and appreciated his candor regarding his alcoholism. Information regarding Lawyers Concerned for Lawyers was also provided to Attorney. Attorney was reprimanded for violating RPC 1.3 (Diligence), RPC 1.16(d) (Terminating Representation, Return of File) and assessed to pay restitution in the amount of $1,000 to Client.
1. See SCR 102(4)(a). 2. See SCR 102(4)(b). 3. Under SCR 102(4)(c), Ghibaudo is immediately prohibited from accepting new clients and precluded from continuing to represent existing clients. Any fees or other funds received by Ghibaudo from or on behalf of clients shall be deposited in a trust account, from which no withdrawals may be made except upon written approval of bar counsel or by order of a court of competent jurisdiction. Id. 4. See SCR 102(4)(b). 5. See id. 6. Ghibaudo shall comply with SCR 115. 7. See SCR 121(Confidentiality) as amended eff. March 1, 2007.
bAR COunSEL REPORT
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 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.
OCTOBER 2009
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