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Bar Counsel Report: October 2013

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bar counsel report
October 2013
SUPREME COURT OF NEVADA
In re: Patrick McDonald Bar No.: 3526 Docket No.: 62876 Filed: July 24, 2013 ORDER OF TEMPORARY SUSPENSION
Attorney temporarily suspended from the practice of law for misappropriation from the client trust account. This is a petition by the state bar, through the Southern Nevada Disciplinary Board, for an order temporarily suspending attorney Patrick McDonald from the practice of law, pending the resolution of formal disciplinary proceedings against him. The petition and supporting documentation demonstrate that McDonald misappropriated $75,000 from his law firm’s client trust account. 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 order, with notice as the 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 McDonald poses a substantial threat of serious harm to the public, and that his immediate temporary suspension is warranted under SCR 102(4)(a). Accordingly, we hereby order attorney Patrick McDonald temporarily suspended from the practice of law pending the resolution of formal disciplinary proceedings against him. We further conclude that McDonald’s handling of funds should be restricted. Accordingly, pursuant
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to SCR 102(4)(a), (b), and (c), we impose upon McDonald the following conditions: 1. McDonald is precluded from accepting new cases and is precluded from continuing to represent existing clients, effective immediately upon service of this order; 2. All proceeds from McDonald’s practice of law and all fees and other funds received from or on behalf of his clients shall, from the date of service of this order, be deposited into a trust account from which no withdrawals may be made by McDonald except upon written approval of bar counsel; and 3. McDonald is prohibited from withdrawing any funds from all accounts in any way relating to his practice including, but not limited to, his general and trust account, except upon written approval of bar counsel. The state bar shall immediately serve McDonald with a copy of this order. Such service may be accomplished by personal service, certified mail, delivery to a person of suitable age at McDonald’s place of employment or residence or by publication.1 McDonald shall comply with the provisions of SCR 115.
In re: Dale Haley Bar No.: 571 Docket No.: 60035 Filed: August 23, 2013 ORDER APPROVING CONDITIONAL GUILTY PLEA
Stayed suspension and probation imposed for attorney who neglected clients and failed to promptly respond to the state bar. Numerous personal problems were considered in mitigation. This is an automatic review of a Southern Nevada Disciplinary Board hearing panel’s recommendation that we approve, pursuant to SCR 113, a conditional guilty plea in exchange for a stated form of discipline for attorney Dale E. Haley. Under the agreement, Haley admitted to one
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violation of RPC 1.3 (diligence), three violations of RPC 1.4 (communication) and five violations of RPC 8.l(b) (bar admission and disciplinary matters). The agreement provides for a suspension of six months and one day, with that suspension stayed for a two-year probationary period. Conditions of the probation include that Haley 1. Promptly respond to any requests from the state bar; 2. Take two hours of CLE in law office management, in addition to the standard CLE requirements; 3. Submit to clinical assessment of his psychological and emotional state in accordance with SCR 117; 4. Pay restitution totaling $4,000 to two former clients;2 and 5. Pay the costs of the disciplinary proceedings in the instant matter. Haley testified to emotional and personal problems he faced as the result of the deaths of two of his brothers and six close friends during the time of his misconduct. The hearing panel also considered Haley’s two incidents of prior discipline in reaching the plea agreement. Based on our review of the record, we conclude that the plea agreement should be approved. See SCR 113(1). As the proposed probationary period has expired, and a status report from the state bar indicates that Haley has met all the conditions of his probation, with the minor exception that, instead of law office management CLE, Haley completed two additional ethics credits, we approve the stated form of discipline to the following extent. In view of Haley’s compliance with all other conditions of his probation, we decline to impose the actual suspension of six months and one day at this time. However, within six months of the date of this order, Haley must complete two CLE units regarding law office management and provide proof of such completion to the state bar. The parties shall comply with the applicable provisions of SCR 115 and SCR 121.1. It is so ORDERED.
SAITTA, J., dissenting: I respectfully dissent from the majority’s approval of Haley’s conditional guilty plea. The state bar’s initial complaint against Haley alleged dozens of violations of the Nevada Rules of Professional Conduct, and an additional grievance was pending when the conditional guilty plea was negotiated. The allegations in the complaint describe a continuing lack of diligence and lack of responsiveness to both Haley’s clients and the state bar. The majority of the alleged violations were dismissed as part of the conditional guilty plea. However, the acts of misconduct to which Haley admitted in the conditional guilty plea alone demonstrate substantial failures to diligently represent and communicate with clients and a continuing failure to respond to the state’s bar’s inquiries regarding the grievances filed against him. See RPC 1.3 (diligence); RPC 1.4 (communication); RPC 8.1(b) (bar admission and disciplinary matters). Assuming that evidence can establish that Haley committed these acts of misconduct, such conduct constitutes a serious breach of the Rules of Professional Conduct warranting the imposition of discipline greater than that approved here. I would reject the conditional guilty plea agreement and remand this matter to the Southern Nevada Disciplinary Board for further disciplinary proceedings. See SCR 113(1); In re Kenick, 100 Nev. 273, 680 P.2d 972 (1984).
SOUTHERN NEVADA DISCIPLINARY BOARD
LETTERS OF REPRIMAND File No. SG11-0266
Letter of Reprimand appropriate when attorney failed to communicate with his client and respond to the state bar. In the summer of 2010 Client retained Attorney services to negotiate a loan modification with Bank. Client made five monthly installments toward Attorney’s retainer fee of $2,500. After three months, Client stated Attorney led him to
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believe that Bank was unwilling to negotiate a loan modification. Client stated Attorney told him that he could find an investor to purchase his property through short sale and he would avoid foreclosure by filing bankruptcy. Client filled out paperwork for the filing of a Chapter 7 bankruptcy and appeared before the bankruptcy trustee on October 13, 2010. Client stated the court informed attorney and him that his matter was not on the docket and it was rescheduled for November 16, 2010. The court did not receive financial management paperwork and moved the 341 hearing to December 13, 2010. Client returned to bankruptcy court with Attorney on December 13, 2010, the trustee asked why Attorney had not received the signed paperwork prior to the appearance. The trustee stated he could not review the file until he had received the signed paperwork. Client stated Attorney apologized and asked him to again fill out paperwork. The first buyer for Client’s home fell through, however he found a new buyer for his home. Client stated the new buyer and agent began direct negotiation with the bank. Client stated reaching Attorney by phone was impossible and made the negotiation process even more stressful and unorganized. Client stated that from January through February 2011, Attorney’s phone went directly to voicemail. He tried numerous times to contact Attorney by email and text but received no response. On February 18, 2011, Client submitted his grievance to the State Bar of Nevada. On May 25, 2011, the State Bar of Nevada sent correspondence to Attorney’s SCR 79 address requesting he provide a written response within 10 days. No response was received. On July 14, 2011, the State Bar of Nevada sent certified correspondence to Attorney’s SCR 79 address requesting he provide a written response within 10 days. No response was received. On July 26, 2011, the State Bar of Nevada sent certified correspondence to Attorney’s secondary mailing address requesting he provide a written response within 10 days. No response was received. On September 8, 2011, the State Bar of Nevada sent certified correspondence to Attorney’s SCR 79 address requesting he provide a written response within 10 days.
In Attorney’s response to the state bar, he expressed that every effort was made towards the goal of a loan modification for Client, however the bank did not proffer a modification of his mortgage. Attorney explained the meeting with the 341 trustee did not go as smoothly as they would have liked, to Attorney’s recollection there was some miscommunication between his office and the office of the trustee. Multiple meetings were necessary to complete the meeting with the creditors. Attorney stated that Client was correct in that he did extend apologies for his having to reappear at additional meeting times, however the extensions did not harm Client’s bankruptcy. Attorney stated that Client had his office and personal cell phone numbers and that his office was located no more than eight miles from Client’s home. Attorney alleged Client began calling his office five times a day, each time with increased anger. Attorney explained the bankruptcy procedures to Client and stated that he began calling incessantly and on one occasion created such a disturbance at his office that the next week his assistant quit. As part of the state bar’s investigation, Attorney’s written response was forwarded to Client for review. Client stated that contrary to Attorney’s response, which incidentally is unbelievable, his phone was not accepting calls from mid- December through January 2011. Client stated that the “crunch time” came for him when he needed a document from Attorney in order for his wife to obtain health insurance for him through her employment. Client stated he pleaded with Attorney, through telephone messages, to fax the document to him. When he could not get a response from Attorney, he had no choice but to go into the office directly to obtain the paperwork. Upon arriving at Attorney’s office he was told Attorney was not there and that the secretary did not have the document he required for the insurance. Client waited for Attorney to return from court in the lobby of the office. When Attorney did return, Attorney told Client that his secretary cannot give out any documents and that he had, in fact, already e-mailed the document to Client. Client stated that if he had received the documents there would be no reason for him to be standing in Attorney’s office. Attorney reassured Client that he would email the document and Client left Attorney’s office. The document was there once Client got home.
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Client’s bankruptcy matter required the filing of two additional documents. Client stated he tried numerous times to reach you so that the documents could be filed and the bankruptcy discharged. Client stated he obtained the documents from the bankruptcy court himself, signed them and returned them to the court without any assistance from Attorney. In conclusion, Client stated that what he went through, the state of Attorney’s office and disorganized chaos, Attorney’s inability to simply communicate and Attorney’s mishandling of his case: “when a person is suffering a great stress like a bankruptcy and losing one’s house, that person shouldn’t have to worry that his/her attorney is part of the problem.” Based upon the foregoing, the Panel of the Southern Nevada Disciplinary Board was concerned with Attorney not responding to the state bar’s numerous correspondences. The panel was troubled by the fact that Attorney had difficulties communicating with his clients and his lack of diligence once he is retained to represent clients. Accordingly, Attorney was REPRIMANDED for violating RPC 1.3 (Diligence), RPC 1.4 (Communication) and RPC 8.1 (Bar Admission and Disciplinary Matters).
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
1. When served on either McDonald 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. See SCR 102(4)(b). 2. Haley was to pay $3,000 to Marisela Perez and $1,000 to Denise Pieper.
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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