It’s Tuesday. After lunch, you grab the mail and sort through it. You see an envelope from the State Bar of Nevada. You ask yourself, “Why is the Bar sending me a letter?” You open the envelope and find a letter from an investigator for the Bar. [Gulp…] The opening paragraph indicates that the Bar has received correspondence from your former client and, as such, “A grievance file has been opened.” Great; there goes the rest of your week….
What happens next? This article offers a glimpse into the attorney discipline process as viewed through the eyes of someone who has defended attorneys through the process for more than a decade.
First, if the grievance involves client funds, the Bar will likely subpoena your bank for records involving your client trust account. The Bar may also subpoena records involving your operating account. The Bar will do so under the authority of SCR 110(1). No big deal; right? Perhaps, but keep in mind that the Bar will not tell you that it is issuing a subpoena for those records. You will learn of the subpoena only after the fact, particularly if the Bar finds accounting discrepancies in those records and starts asking questions.
Second, after the Bar completes its investigation, which will include reviewing your written response and supporting documents—being forthright, responsive, and cooperative in this context is well taken, see SCR 102.5(2)(e)—it will make recommendations for handling the grievance to a screening panel. The screening panel has several options available to it, one of which includes issuing a letter of reprimand. SCR 105(1)(a). If that happens, you will get another letter in the mail, this time notifying you of the outcome and of your right to accept or reject the reprimand pursuant to SCR 105(1)(b). Instinctively, you may want to object, if for no other reason than to avoid seeing your name appear in next month’s Bar Counsel Report for the Nevada Lawyer. That’s fine, but the decision to do so is not without risk; indeed, the Bar will likely advocate for greater discipline at the formal hearing.
Third, if the Bar files a Complaint against you, there is limited discovery that will occur before the formal hearing. You may feel confident about defending your position, intending to describe how you skillfully handled your client’s case with appropriate vigor while thoroughly responding to each and every question in a timely manner. Although your testimony may be enough, you may also choose to retain an expert witness to buttress your defense. See In re Assad, 124 Nev. 391, 185 P.3d 1044 (2008).
Fourth, prior to the formal hearing, you must disclose what evidence you intend to use and which witnesses you intend to call. The Bar will do the same. Do not let the deadline to object to the Bar’s final disclosures lapse without taking any action. Unless you timely object to the Bar’s evidence based on foundation and authenticity, those objections will be deemed waived; meaning, the Bar will be able to admit into evidence any document contained within its files without the need for a live witness—irrespective of how the Bar came into possession of the document. DRP 28-29.
Finally, the formal hearing consists of two basic parts: (i) Determining whether you violated the RPCs; and (ii) Determining what form of discipline, if any, you should receive for the violations. Although the default is to handle those two parts simultaneously, you may want to bifurcate the hearing. In re Discipline of Seegmiller, No. 45537 (Nev. Dec. 8, 2005); see also ABA Standards for Imposing Lawyer Sanctions § 9.1. Doing so avoids putting you in the precarious position of having to simultaneously defend yourself on the merits and ask for forgiveness. Bifurcation has the added bonus of eliminating the risk of any prior discipline that you may have serving as impermissible character evidence. NRS 48.045(2).
A disciplinary proceeding is neither civil nor criminal in nature; it is sui generis. Because the process is unique in many respects, consider the old adage about a lawyer who represents himself having a fool for a client before responding to that initial inquiry letter from the Bar.
Joshua P. Gilmore is a partner at Bailey Kennedy. Alongside defending attorneys subject to possible disciplinary action, he advises attorneys on ethics and compliance-related issues that arise in the course of their practices, including permissive advertising and marketing, conflicts, lawyer departures, and charging liens.
This article was originally published in COMMUNIQUÉ, the official publication of the Clark County Bar Association (June/July 2021).” It is also available at https://clarkcountybar.org/about/member-benefits/communique-2021/communique-june-july-2021/