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Bar Counsel Report: July 2010

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bar counsel report
JULY 2010
In re: Bar No.: Docket No.: Filed: Lisa Marie Fraas 4990 55682 May 18, 2010
LETTERS OF REPRIMAND File No.: 09-297-0574
Reciprocal discipline imposed following discipline from the California State Bar.
Letter of reprimand imposed for failure to comply with advertising rules and failure to file ad with the state bar. The state bar was provided with a copy of a Spanish-language solicitation letter that Attorney sent to prospective clients. The advertisement failed to comply with Nevada’s advertising rules. Attorney’s advertisement did not contain the “Notice: This is an Advertisement!” disclaimer required by Rule of Professional Conduct (RPC) 7.3(c) (Communications With Prospective Clients; Additional disclaimer on mailers or written advertisements or communications), which states, in part, that: Direct or indirect mail envelope, and written mail communications or advertising circulars shall contain, upon the outside of the envelope and upon the communication side of each page of the communication or advertisement, in legible type that is at least twice as large as the largest type used in the body of the communication, in red ink, the following warning: NOTICE: THIS IS AN ADVERTISEMENT! The purpose of making the disclaimer conspicuous is to allow the prospective client to immediately know that the communication is from a lawyer seeking to offer them legal services. This also helps ensure that potential clients are not misled or intimidated into believing that a response to the correspondence is required. Attorney’s response to the state bar provided a revised version of the letter which contained the advertising disclaimer in Spanish. Attorney stated that the disclaimer had “in the past routinely been placed on the correspondence but apparently was not placed on this correspondence subject of the complaint. Procedures will be instituted to provide that notice will be attached to every correspondence.” A review of state bar records indicate that the solicitation letter at issue had not been previously filed with the state bar and was not filed with the state bar within 15 days of the state bar becoming aware of the advertisement. RPC 7.2A (Advertising Filing
This is a petition under Supreme Court Rule (SCR) 114 to reciprocally discipline attorney Lisa Marie Fraas, based upon discipline imposed upon her in California. Fraas did not file a response to the petition. Fraas’ California misconduct arose from her representation of a client in a divorce proceeding. It consisted of: claiming that her fee was non-refundable and failing to refund unearned fees for approximately six months, despite repeated requests to do so, in violation of California Rule of Professional Conduct 3-700(D)(2); withdrawing the disputed client funds and not maintaining them in her trust account pending resolution of the fee dispute in violation of California Rule of Professional Conduct 4-100(A)(2); disclosing confidential information during the arbitration process in violation of California Business and Professions Code section 6068(e); and misrepresenting that she had not deposited the fees into her trust account and that she had foregone other representation, including the client’s wife, in violation of California Business and Professions Code Section 6106.1 SCR 114(4) provides that this court shall impose identical reciprocal discipline, unless the attorney demonstrates, or this court finds, that one of four exceptions applies. None of the exceptions is present in this case. Accordingly, we grant the petition for reciprocal discipline. Attorney Lisa Marie Fraas is hereby suspended for one year, which suspension is stayed, with an actual suspension of 30 days. She is placed on probation for one year. Fraas is required to provide proof to Nevada bar counsel of compliance with the conditions of probation imposed upon her by California. Failure to do so constitutes a violation of probation and could subject Fraas to further discipline. Fraas and the State Bar of Nevada shall comply with SCR 115 and SCR 121.1.
Nevada Lawyer
July 2010
bar counsel report
JULY 2010
Requirements) requires that attorneys’ advertisements be submitted to the state bar within 15 days of first dissemination. As such, the state bar could not verify whether prior versions of the subject solicitation, in fact, contained the necessary disclaimer. Based upon the foregoing, Attorney was REPRIMANDED for violating RPC 7.2A (Advertising Filing Requirements) and RPC 7.3 (Communications with Prospective Clients). Further, Attorney was advised that the solicitation letter to prospective clients did not contain all the biographical disclosures required pursuant to RPC 1.4(c)(3) (Communication; Lawyer’s Biographical Data Form).
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Letter of Reprimand imposed with $1,000 fine and restitution to the client in the amount of $3,500. Client, a resident of Washington State, retained Attorney regarding a criminal matter in Nevada. In August 2008, Client submitted a grievance complaining that Attorney failed to adequately communicate with him and represent his interests. Client further alleged that Attorney exchanged “harsh words” with the judge in his matter. In March 2008, Client stated that Attorney sent him a plea agreement and waiver of rights form which would result in a $595 fine and, possibly, one night in jail. Client questioned how the form was drafted but Attorney informed him not to worry, as Attorney had already “agreed on things” with the prosecuting attorney. Client signed the waiver of rights, and stated he did not hear from Attorney again until after he received a judgment of conviction from the court. Client stated that he unsuccessfully attempted to reach Attorney numerous times and only received a response after he left a voice message threatening to file a bar complaint. When Attorney finally contacted him, Client asked what had happened and indicated that he wanted the situation corrected. Client called again, a few days later, for an update and was informed by Attorney that it would cost $300. Client balked at the request, stating that Attorney had failed to do his job and should therefore make things right. Client spoke with Attorney one final time, wherein Attorney noted that Client’s attorney in Washington had the sentencing changed from Nevada to Washington. Client requested a refund due to his failure to
adequately represent him, which Attorney refused. Client subsequently submitted a bar complaint. Attorney’s initial response to the state bar indicated that Attorney was retained by Client in September 2007, regarding criminal charges. After Attorney explained to Client his options and defenses, Client agreed to accept a plea deal offered by the prosecution. The deal included pleading guilty to a DUI, receiving the minimum fine, attending DUI school, attending a Victim Impact Panel, and receiving credit for time served. Three other charges were to be dismissed. As Client resided in Washington State, Attorney drafted a Plea Agreement and Waiver of Rights pleading so that Client would not have to travel to Nevada. However, the court rejected the pleading as it had its own form. Client stated Attorney thereafter sent another version of the pleading to Client, who again signed it. However, the court again rejected the pleading. Attorney indicated that a third pleading was finally accepted. Attorney noted that the form Client signed included the following acknowledgement: I have not been promised or guaranteed any particular sentence by anyone. I know that my sentence is to be determined by the Court within the limits prescribed by statute. I understand that if my attorney or the State of Nevada or both recommend any specific punishment to the Court, the Court is not obligated to accept this recommendation. Attorney stated that the court used its discretion to impose a higher fine and sentence, and that Client subsequently blamed Attorney for the result. Attorney claimed he offered to file a motion for reconsideration, and Client stated that he would think about it. Attorney claimed that when Attorney’s office contacted the court to place the motion on calendar, Attorney was informed by the court that Client’s attorney in Washington had already called them to arrange for house arrest for Client. As such, Attorney believed the matter was closed and took no further action on Client’s behalf. Attorney subsequently had one final conversation with Client in which Attorney alleged that Client was “yelling, threatening me and profusely cursing at me because he couldn’t have his ‘medication’ and that I was being too cavalier.”
continued on page 50
July 2010
Nevada Lawyer
bar counsel report
JULY 2010
Attorney also denied exchanging harsh words with the presiding court. Client’s reply to Attorney’s response disputed that Attorney ever mentioned that a motion to reconsider could be filed, and that his Washington attorney contacted the court because Attorney was not returning Client’s phone calls. Client also disputed Attorney’s description of the last conversation. Client stated that after Attorney informed him that Attorney was done with his case, Client asked for his money back. When Attorney refused to issue a refund, Client claimed “I told him that I was going to turn his ass in to the state of Nevada bar association and put a lawsuit against him. I may have raised my voice, but did not threaten or profusely curse him.” In October 2008, the state bar spoke with the presiding judge in Client’s matter, who also handles the secretarial duties for her office. The judge stated that no exchange of words occurred between Attorney and the court. However, the judge believed Attorney acted negligently in Client’s matter, and faxed the state bar copies of correspondence she sent Attorney, as well as a timeline of events. The judge also noted that Attorney never personally appeared in the matter. According to the judge’s documents, after Attorney and the prosecutor had stipulated three continuances of Client’s trial, she received a faxed plea agreement from Attorney on March 2, 2008; the agreement was not in a format acceptable to the court. As a result, on March 11, 2008, the judge sent Attorney a sample copy of a Waiver of Rights and Guilty Plea Memorandum that was acceptable to the court. The judge whited-out the previous defendant’s name and certain details, such as dates. Attorney was instructed to file the plea agreement by April 3, 2008. However, Attorney did not file any pleading until April 4, 2008 and, instead of submitting a new pleading based on the sample provided by the judge, Attorney resubmitted the sample form, writing in Attorney client’s name in the whited-out sections as well as the pertinent dates. According to the judge, the pleading also contained the file stamp of the previous case. On April 11, 2008, the court issued an Order to Show Cause requiring Attorney to appear and show cause why Attorney should not be held in contempt of the court for failing to produce the requested documentation as requested in the letter dated March 11, 2008. The judge subsequently sent Attorney a letter on April 24, 2008, wherein she stated that “[h]opefully it is not Attorney’s intention to file the ‘sample’ Waiver of Rights and Guilty Plea Memorandum that Attorney faxed to this court on Client’s behalf.” 50 Nevada Lawyer July 2010
The letter further stated that “[y]ou cannot possibly expect this or any other court to file a document which has violations, names and dates blacked out, for purpose of example, then penciled in for Attorney’s client; not to mention a document that has a stale filing date from some other matter signed by an attorney other than Attorney. If Attorney cannot provide the proper documentation required by this court Attorney will be expected to appear [on] April 30, 2008. ...” According to the judge, Attorney did not respond or appear on April 30, 2008. On May 20, 2008, the judge sent Attorney a letter noting that the court does not have to accept a written plea agreement and noted that “since for whatever reason an original plea cannot be complied with[,] Attorney and Client must personally appear as set forth in the Order Setting Hearing for Entry of Plea and Sentencing.” The Order required Attorney and Client to appear on July 1, 2008. The letter warned Attorney that, should Attorney and Client fail to appear, she would issue a bench warrant against Client and refer Attorney to the state bar. On June 16, 2008, Attorney faxed the judge a proposed Plea Agreement based on a pleading from a City of Las Vegas Municipal Court matter. Attorney’s fax cover sheet asked the judge if the form was acceptable and, if so, Attorney would forward a version with his client’s signature. On June 17, 2008, the judge sent Client a letter stating that: You have been provided with a sample format of a Written Guilty Plea Memorandum that is acceptable and failed to return it in a timely manner and, further, you have repeatedly ignored requests and notices issued by this court thereby forfeiting the discretionary option of filing a plea memorandum. The letter further stated that if Attorney and Client failed to appear at the hearing scheduled for July 1, 2008, bail would be forfeited and a bench warrant would issue. Attorney failed to appear before the court on July 1, 2008. Instead, Attorney submitted a third Plea Agreement on July 2, 2008, which the judge accepted because she blamed Attorney and not the defendant for the delays in the matter. That same day, a judgment of conviction was entered which included Client being sentenced to 90 days in the county jail, commencing on July 28, 2008. However, Client’s attorney in Washington was able to convince the court to amend the imprisonment order from 90 days in the county jail to a 90-day work release/electric supervised home monitoring program in Washington. Despite Client’s requests, Attorney provided him with no refund. Client provided the state bar with receipts
bar counsel report
JULY 2010
indicating that he paid Attorney $3,500 to handle his matter. Based upon the foregoing, Attorney was REPRIMANDED for violating RPC 1.1 (Competence), RPC 1.3 (Diligence), RPC 1.4 (Communication), RPC 3.4 (Fairness to Opposing Party and Counsel), and RPC 8.4 (Misconduct; Conduct Prejudicial to the Administration of Justice). In addition, pursuant to Supreme Court Rule 102(6) (Types of Discipline), the panel imposed a FINE in the amount of $1,000 and also ordered that Attorney pay RESTITUTION to Client in the amount of $3,500.
Letter of Reprimand warranted for failure to safekeep third-party funds. Client hired Attorney to represent him in a personal injury matter stemming from a traffic accident in June 2004. Attorney eventually received settlement funds on Client’s behalf and held them in trust.
However, Attorney was unable to successfully negotiate a medical bill for Client from Reno Diagnostic Center. Therefore, in or about July 2008, Attorney released the remaining funds, $5,338.91, in Attorney’s trust account to Client. In his response to the state bar, Attorney acknowledged giving the money to Client. Attorney said, however, that Client told him that he was in serious financial distress and said that he would deal directly with Reno Diagnostic Center regarding his bill. The outstanding bill for Reno Diagnostic subsequently led to the filing of a civil complaint in Reno Justice Court. In September 2009, the court granted a judgment for $4,653, plus interest and costs, against Client. A judgment lien on Client’s home was recorded with the Washoe County Recorder’s on Oct. 19, 2009. Pursuant to Rule of Professional Conduct 1.15 (Safekeeping Property) and Achrem vs. Expressway Plaza Ltd. Partnership, 112 Nev. 737, 937 P.2d 447 (1996), Attorney should have kept the disputed money in trust and filed an interpleader action which requested a court to direct the fund’s distribution. Accordingly, Attorney was REPRIMANDED for violating RPC 1.15 (Safekeeping Property).
1. Nevada’s counterparts are RPC 1.6 (Confidentiality of Information); RPC 1.15 (Safekeeping Property); RPC 1.16 (Declining or Terminating Representation); and RPC 8.4 (Misconduct).
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): 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 REPRIMAND – Lowest level of discipline. Not published, but disclosed upon request under the 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.
July 2010
Nevada Lawyer

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