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Bar Counsel Report: September 2009

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SEPTEMBER 2009
NEVADA LAWYER
suPREME CouRt oF nEVaDa
In re: Bar no: Docket no: Filed: Mitchell Posin 2840 53711 July 8, 2009
bAR COUnSEL REPORT
oRDER oF REInstatEMEnt
Attorney reinstated following a one-year suspension. This is a petition for reinstatement to the practice of law by suspended attorney Mitchell Posin. On July 2, 2008, this court suspended Posin from the practice of law for one year. In the Matter of Discipline of Mitchell Posin, Docket No. 51207 (Order of Suspension, July 2, 2008). On January 23, 2008, Posin filed with the state bar a petition for reinstatement pursuant to Supreme Court Rule (SCR) 116. On March 5, 2009, a hearing was held before a Southern Nevada Disciplinary Board reinstatement hearing panel, which issued its findings of fact, conclusions of law and recommendation on April 24, 2009. The panel found that Posin has complied with the prior disciplinary panel’s recommendations, and concluded that he had demonstrated by clear and convincing evidence that he had the moral qualifications, competency and learning in law required for admission to practice law and that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar, to the administration of justice or the public interest. The panel recommended that Posin’s petition be granted, subject to conditions that Posin: (1) submit to the state bar, prior to resuming the practice, an office-management plan and procedure which should include, and not be limited to, his procedure for calendaring of matters, file maintenance, maintaining a trust account and reports, and engagement and disengagement procedures with clients; (2) enroll in a mentoring program for two years with a mentor, other than his prior mentor, who is a managing partner of a law firm or has at least 15 years of experience and who shall submit quarterly reports to the state bar regarding Posin’s calendaring procedures, filemaintenance procedures, trust account reporting procedures, engagement and disengagement with client procedures, client communication procedures, the number of files Posin is handling, his areas of practice, and his communications with clients; (3) be on probation during the two-year mentoring period; and (4) pay the costs of the proceedings within 30 days of this court’s order directing him to do so. SCR 116(2) requires that an attorney seeking reinstatement must: demonstrate[e] by clear and convincing evidence that he or she has the moral qualifications,
competency, and learning in law required for admission to practice law in this state, and that his or her resumption of the practice of law will not be detrimental to the integrity and standing of the bar, to the administration of justice, or to the public interest. Having reviewed the record, we conclude that clear and convincing evidence supports the panel’s findings and conclusions. We therefore approve the panel’s recommendation that the petition be granted subject to conditions. Accordingly, Mitchell Posin is hereby reinstated to the practice of law, subject to the conditions set forth above, including payment of the cost of the proceedings within 30 days of the date of this order.
soutHERn nEVaDa DIsCIPlInaRY BoaRD
In Re: Bar no.: Case no: Issued: Randal R. leonard, Esq. 6716 08-230-2143 July 16, 2009
SEPTEMBER 2009
Public reprimand warranted where attorney failed to comply with multiple Supreme Court orders.
PuBlIC REPRIManD:
TO: RANDAL R. LEONARD, ESQ. Respondent represented Steven Taylor and Veronica Toro in a civil matter that was appealed to the Nevada Supreme Court in September 2007. However, Respondent failed to (1) file a case appeal statement and (2) submit the filing fee with the notice of appeal as required by the Nevada Rules of Appellate Procedure. On September 25, 2007, the Supreme Court issued notices which directed Respondent to file the case appeal statement and submit the filing fee by October 5, 2007. However, Respondent did not comply with the order of the Supreme Court. Therefore, on February 21, 2008, the Supreme Court entered an order that conditionally imposed sanctions upon Respondent for failure to file the case appeal statement and submit the filing fee. The order also noted that Respondent had failed to file the required docketing statement, which had been due by October 10, 2007. The Supreme Court directed Respondent to, within 15 days, pay $500 to the Supreme Court Law Library and provide proof of payment to the court. However, the sanction would be automatically vacated if the appellants, within 10 days, submitted the filing fee or filed a motion to extend time. Finally, the order noted that because the settlement judge had filed a report indicating that the parties had agreed to a settlement of the pending appeal, Respondent was directed to, within 30 days, file a motion or stipulation to dismiss the appeal, or to
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NEVADA LAWYER
SEPTEMBER 2009
inform the court of the appeal’s status. The Supreme Court cautioned Respondent that failure to provide information regarding the appeal’s status could result in it being dismissed as abandoned. On August 22, 2008, the Supreme Court entered an order which noted that Respondent had not submitted the filing fee, filed the appeal statement or paid the sanction of $500 to the Supreme Court Law Library. However, Respondent filed a motion to voluntarily dismiss the appeal. The Supreme Court, citing Nevada Rule of Appellate Procedure 42(b), noted that an appeal cannot be dismissed until all appropriate fees have been paid. Accordingly, the Supreme Court deferred any ruling on the motion to dismiss and ordered Respondent to pay the filing fee of $250 and the sanction of $500 to the Supreme Court Law Library within 15 days. The Supreme Court also warned Respondent that failure to comply could result in additional sanctions and referral to the State Bar of Nevada for investigation. On December 3, 2008, the Supreme Court entered an order dismissing the appeal and referring Respondent to the state bar for investigation. In its order, the court noted that Respondent submitted the filing fee on October 14, 2008. However, the $500 sanction had not been paid to the Supreme Court Law Library. In his response to the state bar, Respondent stated that on or about August 28, 2008, his office prepared separate checks to pay the above-referenced filing fee and sanctions. However, Respondent claimed that the checks were not mailed until late September or early October 2008. Respondent also stated that the check for $250 was negotiated. However, Respondent claimed that the check for $500 was not deposited and that Respondent later discovered that it had been sent to the wrong address. Respondent subsequently reissued a second check for $500 and sent it to the Supreme Court Law Library. The state bar subsequently confirmed that on December 29, 2008, the Supreme Court Law Library had received his check. In mitigation, Respondent cooperated with the state bar and, in a response to the state bar, Respondent “accepted full responsibility” for his actions in connection with the appeal underlying this disciplinary matter, and his failure to comply with procedures and multiple orders from the Supreme Court. In light of the foregoing, Respondent violated Rule of Professional Conduct (RPC) 1.3 (Diligence), RPC 3.4(c) (Fairness to Opposing Party and Counsel: Knowingly disobeying an obligation under the rules of a tribunal) and RPC 8.4(d) (Misconduct: Engaging in conduct prejudicial to the administration of justice) and is hereby PuBlIClY REPRIManDED.
lEttERs oF (PRIVatE) REPRIManD1 File no. 08-134-2924
Attorney received a letter of reprimand and was fined $1,000 for allowing a non-lawyer to sign up a new client. Attorney paid the fine. Client was involved in a car accident on April 2, 2004. At the recommendation of a college instructor, she called Attorney’s office. She was then contacted by a non-lawyer. The non-lawyer said he would come to the Client’s house to get all the information for Attorney. Client agreed because she trusted her instructor’s opinion of Attorney. The non-lawyer provided Client with the retainer agreement that contained many charges in addition to a contingency fee. She was informed by the non-lawyer that “all attorneys did this now…” Client signed the retainer agreement. This occurred in July 2004. On or about July 8, 2004, Client received an introductory letter from Attorney’s firm thanking her for choosing his office. It is a detailed two-and-a-half page letter and is signed “Attorney/KH.” Client e-mailed Attorney on July 12, 2004, but never heard back from Attorney. Client alleged that she finally spoke with another non-lawyer from Attorney’s office in mid-January 2005. On March 21, 2005, Client contacted Attorney and was told that her case had settled with Progressive Insurance on March 18, 2005. The distribution sheet that was provided by Attorney’s office revealed overhead charges in the amount of $400, $44 in runner charges, a charge for “Clt. Sign-up” in the amount of $176.25, and two separate charges in the amount of $55 for “Fed Ex Demand.” Client’s grievance was sent to Attorney by the State Bar of Nevada on March 31, 2008. Attorney’s response, dated April 14, 2008, stated that Client was aware of the settlement, as she had signed the settlement agreement. She had also signed the settlement memorandum and agreed to the charges. Attorney stated that Client retained another attorney to handle the UM/UIM portion of the claim. Attorney had asserted a lien on this portion of the case but released it following the complaint to the state bar. Pursuant to SCR 102.5, the screening panel considered as aggravation Attorney’s prior discipline, including the prior Letter of Reprimand Respondent 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. However, the panel also considered in mitigation that this case occurred during the same time period as the prior matter in which Attorney had already been disciplined. Further, the prior formal hearing panel took into consideration Attorney’s ill health and this screening panel acknowledged that in this matter.
COnTInUEd On PAgE 46
bAR COUnSEL REPORT
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SEPTEMBER 2009
SEPTEMBER 2009 Accordingly, Attorney was REPRIMANDED AND FINED $1,000 for violating RPC 1.5 (Fees), RPC 5.3 (Responsibilities Regarding Nonlawyer Assistants), and RPC 5.5 (Unauthorized Practice of Law).
NEVADA LAWYER
File no. 08-235-0092
Letter of reprimand appropriate when Attorney entered into a loan agreement with Client and failed to have Client seek the advice of independent counsel. Client (Wife) retained Attorney to represent her in a legal separation. Attorney filed the complaint on August 17, 2005, and the trial was held on March 23, 2007. The Decree of Legal Separation was entered on May 14, 2007, wherein the husband was ordered to pay spousal support in the amount of $700 per month. Attorney was also awarded attorney’s fees in the amount of $3,500. Client stated that Attorney gave her a loan in the amount of $1,200 in December 2007. Client further alleged that when the loan was repaid, the alimony checks stopped being paid by the husband. Client requested that her retainer of $1,000 be refunded because it should not have taken four years for this matter to conclude. Attorney responded by stating that she performed the services in which she was retained. A legal separation was entered and the matter was concluded in June 2007 after entry of the order. Attorney stated that Client began calling Attorney in November 2007, asking for a loan. Attorney agreed and loaned Client $1,200 in December 2007. In order to get her funds back, Attorney arranged to have a writ of execution attach to the husband’s wages for the arrears he owed and the attorney’s fees. The execution went into effect in May 2008. Attorney stated that she could have kept the entire amount garnished as the husband owed her attorney’s fees but Attorney kept only a portion to apply to the loan balance and gave Client the remainder, which was usually $200. Attorney stated that when the writ expired Attorney explained to Client that she could not represent her in obtaining a writ of garnishment for current spousal support because Attorney was not competent to do executions. The prior writ was prepared by someone else who had since passed away. Client replied to Attorney’s response by stating that the separation was not completed as she still had to obtain the retirement benefits from the Culinary Union. Client alleged that Attorney gave her a copy of the legal separation in October 2008, with the instruction that she needed to see someone else about the retirement benefits. However, the copy of the envelope Client provided to the state bar is postmarked October 2007, not 2008. Therefore, it appears that Attorney did provide the documents to Client 4 months after her separation and not over a year later as Client alleged.
Accordingly Attorney was REPRIMANDED for violating RPC 1.7 (Conflict of Interest: Current Clients) for obtaining the writ of execution to satisfy Attorney’s loan repayments and RPC 1.8 (Conflict of Interest: Current Clients: Specific Rules) for failing to have Client seek independent counsel before entering into a business transaction with Attorney and failing to put the terms of the transaction in writing.
bAR COUnSEL REPORT
unautHoRIZED PRaCtICE oF laW
CEasE anD DEsIst lEttERs
Under NRS 7.285(3), the State Bar of Nevada may seek a civil injunction against a person or entity engaged in the unauthorized practice of law (UPL). The state bar also issues cease and desist letters to aid in UPL enforcement. While such letters are not court orders and attach no penalty, they put the recipient on notice of activity which constitutes UPL and allows the recipient to amend business practices to conform to Nevada law. The state bar uses cease and desist notices in subsequent litigation. The state bar issued the following cease and desist letter on the date listed: Kay Butler June 8, 2009
1. See SCR 121 (Confidentiality) as amended eff. March 1, 2007.
SEPTEMBER 2009
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.
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