September 2007

OFFICE OF BAR COUNSEL REPORT- September 2007

SOUTHERN NEVADA DISCIPLINARY BOARD

In re:   Mitchell Posin, Esq.

Filed July 12, 2007

Case Nos.     05-123-0653, 05-205-0653, 06-001-0653, 06-014-0653, 06-015-0653, 06-022-0653, 06-029-0653, 06-094-0653, 06-138-0653, 06-166-0653,       06-120-0653, 06-156-0653, 07-015-0653, 07-018-0653

INTERIM ORDER

Formal disciplinary proceedings involving, inter alia, multiple counts of failure to properly maintain trust account and distribute funds, continued for five months with multiple conditions, including distribution of funds and agreement not to practice. If attorney meets all conditions, the Panel will recommend a 4 month suspension with credit for time served plus costs of the disciplinary proceedings.

This matter came before a designated Screening Panel of the Southern Nevada Disciplinary Board (“Panel”) on June 25, 2007, at 9:00 a.m. for a Formal Hearing regarding MITCHELL POSIN, ESQ., (“Respondent”).  The Panel consisted of Chair, Nicholas Santoro, Esq., Thomas Ryan, Esq., Larry Lamoreux, Esq., Bruce Leslie, Esq. and Erin Beesley, Laymember.  Deputy Bar Counsel David A. Clark represented the State Bar of Nevada (“State Bar”).  Respondent was present and was represented by Frank Cremen, Esq.

After deliberating and reviewing all pleadings, exhibits, and testimony that has been received into evidence, this Panel HEREBY ORDERS:

1.               This matter is continued for five (5) months for final disposition.

2.               During that time, Respondent shall cease practicing law for a period of four (4) months, starting August 1, 2007.  This voluntary cessation of the practice of law is tantamount to a suspension for purposes of Supreme Court Rule (SCR) 118.  Respondent is also subject to the notice requirements under the new SCR 115 (Notice of change of licensure status).   A copy of this rule is attached hereto as Exhibit A.

3.               The one possible exception to cessation of the practice of law for the four (4) month time period is the matter of USA v. Chao Fan Xu, et al., case no. 2:02-CR-0674-PMP(LRL), currently pending in the United States District Court in Nevada.  Within fifteen (15) days of the Formal Hearing, Respondent shall file with this Panel a written showing of prejudice that would inure to Respondent’s client given the impending trial date.  The Panel’s decision will carve out the Xu case from the cessation of the practice for four (4) months if Respondent makes the requisite showing of prejudice.

4.               This Interim Order will be published in Nevada Lawyer magazine.

5.               Respondent shall pay restitution within five (5) to ten (10) calendar days from the date of the Formal Hearing to those parties identified by the Respondent during the Formal Hearing.  Restitution shall be made through the trust account of Respondent’s counsel.

6.               Within thirty (30) days of June 25, 2007, Respondent shall:

                    a.       Release the $500 court bond to Minerva Mouawad.

b.       Distribute all funds to the lienholders and the clients as to Nina Fair, Shane Delance, and Sharon Vidaure. 

c.       Obtain a blocked account order from the judge in the Fair matter.

d.       Rectify the overpayment in the James Hamly matter. 

e.       Provide a full accounting to the State Bar concerning The Archie Davis Revocable Living Trust.  If the State Bar determines that there is a violation, that violation will be a separate matter and not covered under the imposition of discipline in this Order.  This panel will retain jurisdiction over the Davis matter for additional adjudication of any violations that may be uncovered as a result of this accounting.

7.               Respondent shall be responsible for all costs of the proceeding.

8.               Respondent shall get an adequate bookkeeping system in place that is satisfactory to the State Bar.  When this Panel reconvenes in five (5) months, the State Bar must approve of the bookkeeping system and will continue to maintain jurisdiction for six (6) months after that to review Respondent’s bookkeeping system to avoid future problems. 

9.               At the end of five (5) months, if Respondent failed to comply with the conditions set forth in this order, or if Respondent practiced law directly or indirectly through someone else, or if other matters of a disciplinary nature have arisen with respect to Respondent’s practice of law, this panel has retained jurisdiction to suspend Respondent for a period of time, which could be six (6) months plus one (1) day or up to one (1) year.

10.           If at the end of five (5) months, it Respondent has met the conditions, this Panel will recommend that Respondent be suspended for four (4) months with credit for time served, and pay the costs of these proceedings.

          .

LETTERS OF PRIVATE REPRIMAND

Northern Nevada Disciplinary Board 

File No. N07-08-915

Letter of Reprimand and $500 fine warranted for dilatory response to State Bar’s inquiries regarding a trust account overdraft notice.

               The State Bar received an overdraft notice regarding Attorney A’s trust account in November 2006.          Attorney A failed to respond to three letters, the latter two certified, requesting an explanation for the reported overdraft.    Accordingly, the State Bar opened a grievance file in January 2007 and personally served it.  Specifically, a Bar Counsel personally  spoke with Attorney A, who acknowledged prior receipt of notice in this matter and knowingly failing to respond as required by the Rules of Professional Conduct.

          Attorney A’s eventual response provided documentation from the Bank indicating it was a bank error and no fault of the attorney’s.

In this matter, the State Bar was required to send 4 letters, one of which was personally served, and open a grievance file before finally receiving a response which addressed the trust account overdraft.  Such conduct, of course, violates the Rules of Professional Conduct and is not acceptable.  In a self-disciplinary system it is integral to the public trust and the integrity of the legal profession that attorneys timely respond to requests from a disciplinary authority.

The reviewing Panel issued a Letter of Reprimand for violation of RPC 8.1(b)(responding to disciplinary authority)  and imposed a $500 fine.  SCR 102(6).

File No.  06-077-0044

Private reprimand issued to attorney who allowed non-lawyers as a matter of practice  to negotiate personal injury claims, including signing demand letters.   

Grievant B, a senior investigator for an insurance company,  wrote to the State Bar in May 2006 regarding Attorney C and independent contract Paralegal X.   Paralegal X was allegedly the sole point of contact regarding a claim made by Attorney C’s client. Most of the correspondence was faxed from Paralegal X’s office, including negotiation letters signed by the paralegal. Further, the initial retainer agreement was signed by a third party and not by Attorney C.

Attorney C responded that the file was initially handled by his son, who worked as his  legal assistant until December 2005, after which Attorney C hired Paralegal X. Attorney C also asserted that all work was performed under  his supervision and every piece of correspondence sent was approved beforehand.  Attorney C also claimed to have personally spoken with the adjusters and informed them that the non-lawyers had been assigned the file.

Regarding Paralegal X, Attorney C asserts the paralegal has limited mobility stemming from two motor vehicle accidents and therefore works from a home office.  The paralegal purportedly travels to Attorney C’s office every few days to discuss all claims being handled.  Attorney C further argued that neither he nor anyone else in his office ever insinuated that Paralegal X was an attorney, and,  the client is satisfied with the way the claim is being handled. 

Grievant B noted that the insurance claim handlers called Attorney C’s office seven times in an attempt to settle the claim, and insisted upon speaking to Attorney C directly.  Attorney C refused to personally return any of those calls.

The Panel found Attorney C’s arguments unpersuasive.   The operative issue is not an allegation that a paralegal was misrepresented as an attorney.  Rather, the issue is that non-lawyers are negotiating a claim, threatening to file suit, and sending counter-demands under their own signature and authority.  Non-lawyers may not make demands and negotiate claims on behalf of clients and cannot sign settlement demand letters.  Further, the Panel reminded Attorney C that an attorney needs to personally sign retainer agreements.

Based on the foregoing, Attorney C received a private reprimand for violations of SCR 187/RPC 5.3 (Responsibilities regarding nonlawyer assistants) and SCR 189/RPC 5.5 (Unauthorized practice of law). 

File No. 06-052-2573

After considering mitigating factors, private reprimand appropriate where attorney found in contempt of court for failing to appear at a hearing and vigorously represent clients.

In April 2006, a contempt hearing was held before Judge D to determine whether or not Attorney E should be held in contempt of court for failure to appear at a status hearing. 

The Judge entered an Order on May 4, 2006, finding Attorney E in contempt of court for failure to appear and vigorously represent clients.  Financial sanctions were not imposed.  However, the Judge referred this matter to the State Bar for review. 

Attorney E provided an affidavit to the court citing the reason for failure to appear as a miscommunication between Attorney E and another attorney assisting with this case. Each attorney thought the other was attending the hearing in question. 

This was not the first contempt of court hearing conducted by the Judge regarding Attorney E’s actions in this case.  The first contempt hearing resulted when Attorney E sent a paralegal to attend and/or docket the Court’s status conferences.  In the resulting Order, the Judge found Attorney E in contempt of court for failure to appear and assessed $500 in attorney’s fees for each attorney who was present at the status conference.  Additionally, the Court ordered that Attorney E “appear in human form” at all future Court ordered conferences or hearings.

The Panel took into consideration mitigating circumstances such as Attorney E’s  apology letter to the Judge, lack of public discipline in Nevada and California, and the public admonishment by the Judge in the Contempt of Court Orders.

The Judge’s Contempt Order is not considered a form of discipline under the Supreme Court Rules and therefore does not preclude disciplinary action.  Attorney E was Privately Reprimanded for violating Supreme Court Rules 153 (Diligence), 171 (Expediting litigation), 173(3) (Fairness to opposing party and counsel:  knowingly disobey an obligation under the rule of a tribunal) and 187 (Responsibilities regarding nonlawyer assistants).

LAWYER ADVERTISING

Don’t forget all advertisements that are being run after September 1, 2007 (except tombstones¹ and websites) must be filed with the State Bar Advertising Administrator on or before September 17, 2007.

Visit the website for forms, applications and fees for advance committee advisory opinions, the complete Advertising Committee Rules, FAQs, and other information such as guidelines for preparing the Biographical Data Form:

http://www.nvbar.org/SCLA/scla.htm

The Advertising Administrator, paralegal Louise Watson, CLA, may be reached at (702) 317-1433, Louisew@nvbar.org, or fax (702) 382-8747.    You may send scanned documents concerning lawyer advertising to Ms. Watson’s email.     

COMMITTEE & BOARD VACANCIES

ADVERTISING REVIEW COMMITTEES   

On April 26, 2007, the Nevada Supreme Court enacted revisions to the lawyer advertising rules which created new standing advisory committees.  The new rules go into effect Sept. 1, 2007.  To review the complete order, visit either the State Bar or Supreme Court website.  The Board of Governors is in the process of formulating bylaws, guidelines, policies, and fee schedules* (*NB: fees apply to optional advance opinion requests only).

These working Committees shall meet at least once per month to (1) review all advertisements submitted pursuant to rule RPC 7.2A as amended and (2) render advance advisory opinions upon request.  Because review & communication will largely be accomplished though electronic mediums, Committee members should be proficient with computers, email, and Internet use.

Interested persons should send: (1) a cover letter, (2) C.V., (3)  references, and (4) level of computer proficiency to:  State Bar of Nevada: attn:  AD Committee, 600 E. Charleston Blvd., Las Vegas, NV 89104, or via e-mail louisew@nvbar.org, or call (702) 317-1433 for more information.   Lawyers will also need to fill out a State Bar Committee Application form.

DISCIPLINARY BOARD VACANCIES

The Southern Nevada Disciplinary Board needs volunteer non-lawyer professionals to review allegations of attorney misconduct.  No prior training or legal experience is required. 

The Northern Disciplinary Board has vacancies for attorney volunteers. Specific hearing panel assignments are flexible and will work around your schedule.

Interested persons should send a cover letter, c.v., and references to:  State Bar of Nevada: OBC, 600 E. Charleston Blvd., Las Vegas, NV 89104, or via e-mail tarad@nvbar.org.  Lawyers will also need to fill out a State Bar Committee Application form.

ENDNOTE

1.         Advertising Committee Rule (ACR) 2(o) subparagraphs (1) and (3)  provide, in pertinent part, that the following advertisements are exempt from filing under RPC 7.2A:   

1.   Tombstone. Advertisements which are limited to the following information shall be considered “tombstone” advertisements which are exempt from filing under this Rule:

(a)  The name of the lawyer or firm and lawyers associated with the firm, with office addresses, telephone numbers, office and telephone service hours, telecopier numbers, e-mail and website information, and a designation of the profession such as attorney, lawyer, law office, or firm;

(b)  The fields of law in which the lawyer or firm advertises a certification, limited practice, or specialty, and required related information as set forth in RPCs 7.2 and 7.4,  provided the lawyer is otherwise qualified to make those statements in compliance with those Rules;

(c)  The date of admission of the lawyer or lawyers to the State Bar of Nevada, to federal courts, and to the bars of other jurisdictions;

(d)  Technical and professional licenses granted by this state and other recognized licensing authorities;

(e)  Foreign language ability;

(f)  Identification of prepaid or group legal service plans in which the lawyer participates provided the participation is otherwise compliant with SCR 42.5;

(g)  The acceptance or nonacceptance of credit cards; and

(h)  In addition to the exceptions listed in subparagraphs (a)-(g) above, listings in a regularly published law list; newsletters or other similar publications directed primarily to other lawyers and legal professionals; and announcements limited to change of address, affiliation, or staffing are exempt from filing.    

….

3.         Websites.   Websites are exempt from mandatory filing until further directive of the Board of Governors.  This subject may be revisited as part of the first advertising program review or sooner as the Board deems necessary and proper.  This waiver from filing shall not be construed to exempt websites from compliance with the substantive Rules of Professional Conduct. Further, websites may also be voluntarily submitted for RPC 7.2B advisory opinions.