July 2008 Nevada Lawyer

July 2008 Nevada Lawyer

JULY 2008-BAR COUNSEL REPORT

SUPREME COURT OF NEVADA

In re: Troy A. Baker

Bar No: 5862

Docket No: 51381

Filed May 23, 2008

ORDER OF DISBARMENT BY CONSENT

Attorney consented to disbarment after repeatedly lying to his client concerning the settlement of her case, when her case had actually been dismissed for failure to prosecute. Attorney agreed to pay restitution to his client in the amount of $115,000 plus costs of the disciplinary proceeding ($2,500).

The Southern Nevada Disciplinary Board has filed, under SCR 112, a petition for attorney Troy A. Baker’s disbarment by consent. The petition is supported by Baker’s affidavit, stating that he freely and voluntarily consents to disbarment, after having had the opportunity to consult with counsel. Baker acknowledges in the affidavit that he violated SCR 151 (competence), SCR 153 (diligence), SCR 154 (communication), SCR 157 (conflict of interest), SCR 171 (expediting litigation), SCR 203(3) (misconduct involving dishonesty, fraud, deceit, or misrepresentation), RPC 1.1 (competence), RPC 1.3 (diligence), RPC 1.4 (communication), RPC 1.7 (conflict of interest), RPC 1.15 (safekeeping property), RPC 3.2 (expediting litigation), and RPC 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation),¹ by repeatedly lying to his client concerning the settlement of her case and failing to prosecute the case, resulting in its dismissal. Baker admits that he could not successfully defend against a disciplinary complaint. Baker further agrees to pay restitution to the client harmed by his conduct in the amount of $40,000 (in addition to the $75,000 that he has already paid) and to pay the disciplinary proceedings’ costs in the amount of $2,500.

SCR 112 provides that an attorney who is the subject of a proceeding involving allegations of misconduct may consent to disbarment by delivering an affidavit to the appropriate disciplinary board, which must file it with this court. Baker’s affidavit meets the requirements of SCR 112(1), and we conclude that the petition should be granted. Accordingly, Baker is disbarred. The provisions of SCR 115 and SCR 121.1 governing notice and publication of orders of disbarment shall apply to this order. Baker shall pay costs and restitution as set forth above.

NORTHERN NEVADA DISCIPLINARY BOARD

In Re: Douglas W. Nicholson, Esq.

Bar No.: 3654

Case Nos.: N06-18-361, N06-22-361

Issued: April 9, 2008

Public reprimand and costs ($484.05) warranted where attorney failed to communicate with his clients, expedite litigation and was dilatory in responding to the state bar.

PUBLIC REPRIMAND:

TO: DOUGLAS W. NICHOLSON, ESQ.

You represented grievant Ronald Davis (“Davis”) in a divorce proceeding. As part of the divorce settlement, Davis was to execute, within 30 days of the decree, quitclaim deeds pertaining to three time-shares awarded to his ex-wife. Davis stated that he attempted to effectuate his deeds, but his ex-wife refused to sign them, stating they were faulty.

Over the next year and a half, you received several letters from Davis’ ex-wife, through her attorneys, requesting assistance in completing the quitclaim deeds; nonetheless, you failed to complete the task. Left with no alternative, opposing counsel filed an Ex-Parte Application of Court to Execute Deeds and Related Documents and served a copy on you on or about September 16, 2004. You did not provide a response to the Ex-Parte Application.

Opposing counsel then filed a Motion and Order to Show Cause and Request Costs, which was granted as you again did not file a response. A hearing on the motion was held, but you were not in attendance; nor was your client, who was unaware of the proceeding.

On November 3, 2005, the court entered its order finding Davis in contempt of court and issued a bench warrant for Davis’ arrest. According to Davis, you never notified him of the warrant. The condition set for bail on the warrant included payment of $860 relative to the contempt charge and a fee and cost award to his ex-wife’s attorneys in the amount of $2,000.67.

Davis claimed that he signed the time-share documents for the second time, with some hesitance, in mid-to-late October 2005, at your request. Davis also noted that the first set of documents, which he signed in July 2004 and subsequently gave to you, were found in his file after it was turned over to his new attorney, Egan Walker (“Walker”), in March 2006.

Davis retained Walker on or about January 2006, then contacted your office and advised you that he no longer required your services. He asked that his file be sent to Walker; however, you did not relinquish the file until March 4, 2006.

In mid-January 2006, Walker spoke telephonically with opposing counsel and was informed of the warrant as well as the unanswered pleadings that had been served upon you. Walker then contacted Davis and asked him if he was aware of the warrant, filings or the missed hearing dates. Davis was not. Following this conversation with Walker, Davis called you and left a voice mail message regarding his conversation with Walker. According to Davis, you left him a voice message admitting fault on or about January 20, 2006.

Judge Elliot lifted the bench warrant for Davis on January 27, 2006, when you paid the $2,860.67 in fees that had been awarded at the August 18, 2005, hearing.

Davis filed a grievance with the State Bar of Nevada on February 23, 2006, after which a grievance file was opened. You did not respond to the four pieces of correspondence sent to you via certified mail from the state bar despite being informed that failure to do so would be considered a violation of SCR 200(2) (bar admission and disciplinary matters).

On June 21, 2006, the Office of Bar Counsel received a facsimile letter from you apologizing for the delay and stating that a response would be in the office within the next two (2) weeks. No response was received by the state bar within this time period.

On September 22, 2006, the bar received a letter from you indicating that you had sent a response to the state bar on or about August 27, 2006, but the letter was returned, although you were not sure as to why, and that you had been out of the office from August 28 to September 19, 2006. Attached to the September 22 correspondence was a letter to the state bar dated August 18, 2006, responding to Davis’ grievance.

The August 18 letter apologized for the delay in getting your response to the bar. You stated that your life had been in utter chaos since September 2005 due to the breast cancer diagnoses of both your sister-in-law and a close friend.

You further stated that you did not notify Davis of the show-cause hearing because, until the morning of the hearing, you believed that the issue had been resolved and the hearing would be vacated. You further stated that you had paid the attorney’s fees imposed in the August 2005 order because it was not Davis’ fault you had misunderstood the arrangement with opposing counsel.

You also stated that you believed that you had left Davis a message after learning of the warrant. However, you did not indicate that you took any steps to quash the bench warrant after learning of its issuance.

You ended your response acknowledging that you certainly could have been more diligent in your follow-up calls to Davis, and apologized to Davis for the anguish he experienced.

In a second matter, Shari Johnson (“Johnson”) retained you in February 2005 with regard to her divorce proceeding. After her divorce was finalized in July 2005, she asked you to withdraw from the matter, which you failed to do.

In April 2006, Johnson’s ex-husband filed a Motion to Modify Child Support and served a copy upon you, as you were still listed as Johnson’s attorney-of-record. You failed to file a response to the Motion to Modify Child Support. As a result, an Order Modifying Support in favor of the ex-husband was entered on July 6, 2006.

On August 1, 2006, Johnson filed a grievance with the State Bar of Nevada and a file was opened. You did not respond to the three pieces of correspondence sent to you via certified mail from the state bar despite being informed that failure to do so would be considered a violation of SCR 200(2) (bar admission and disciplinary matters). You were further advised that failure to respond would result in the matter being presented to a screening panel of the Northern Nevada Disciplinary Board with the assumption that Johnson’s allegations were true.

Attached to the September 22, 2006, correspondence was a letter to the state bar dated August 27, 2006, requesting an extension of 30 days in which to respond to Johnson’s grievance. It was not until a January 10, 2008 meeting with bar counsel that you provided a response to Johnson’s grievance.

In light of the foregoing, your conduct violated SCR 153 (diligence), SCR 154 (communication) and SCR 200(2)/RPC 8.1(b) (bar admissions and disciplinary matters) with respect to the Ronald Davis grievance and SCR 153 (diligence) and SCR 154 (communication) with respect to the Shari Johnson grievance. You are hereby PUBLICLY REPRIMANDED.

SOUTHERN NEVADA DISCIPLINARY BOARD

LETTERS OF (PRIVATE) REPRIMAND²

File No. 07-189-1865

Private reprimand appropriate where attorney failed to act diligently in an immigration matter and failed to promptly return the balance of the client’s retainer. Restitution in the amount of $875 was also ordered by the panel.

Client A retained Attorney B to obtain an H2B work visa. Client A paid a $3,500 retainer and spoke with Attorney B on the phone, stressing the urgency of his matter and the requirement that his documents needed to be filed immediately. When Client A did not receive any communications for over a month, and his documents were yet to be filed, he terminated Attorney B’s services and demanded a refund. Client A retained a new lawyer in Montana, who handled his immigration needs.

Attorney B agreed give the client a full refund, but initially paid only half the amount due ($1,750). Over one year later, Attorney B failed to remit the balance. Attorney B also ignored communications from the client and his new attorney requesting a status of the balance.

A bar complaint was filed in late October 2007. The State Bar of Nevada opened a file and within a week of receiving the state bar’s letter, Attorney B remitted another $875 to the client, promising him and the state bar that the balance of $875 would be delivered within a month. More than six months later, Attorney B failed to do so.

Attorney B was reprimanded for violating RPC 1.2 (scope of representation), RPC 1.3 (diligence) and RPC 1.15 (safekeeping property).

The panel also directed that Attorney B pay the remaining $875 as restitution to Client A within 30 days of the issuance of the Reprimand. Attorney B was advised that failure to pay the amount would result in a separate disciplinary action for failing to obey a prior disciplinary order.

The restitution was paid by Attorney B within the time period allotted.

File No. 06-172-1810

Private reprimand appropriate where attorney failed to promptly pay liens in a personal injury case.

Client C retained Attorney D to represent her for a personal injury which was the result of a motor vehicle accident that occurred on October 21, 2001. While treating for her first accident, Client C was involved in a second motor vehicle accident on November 12, 2002. Attorney D represented her for this matter as well.

All of Client C’s medical bills were placed on liens, including the insurance subrogation of her husband’s health care coverage.

The at-fault driver of first accident did not have insurance coverage. With her permission, Attorney D settled Client C’s first personal injury claim with her uninsured motorist coverage for $15,000 in early 2003.

Client C alleged that Attorney D “removed” himself as attorney of record for the second accident, leaving her to settle the second claim on her own.

When Attorney D responded to Client C’s grievance, he stated that the complaint was “financially motivated” as the client had requested that the attorney reduce his fees on the second accident.

Attorney D stated that after recovering the $15,000 in uninsured motorist coverage in the first accident, letters were sent to the lien holders requesting a pro-rata distribution of the net proceeds of the settlement. The lien-holders were not amendable to this resolution. The client instructed the attorney to wait until the second accident was concluded to pay the liens.

Client C received the settlement check for her second accident, which was made payable to both the attorney and the client. Attorney D refused to sign this check because of the pending bar grievance. This check had not been negotiated at the time the panel convened.

According to the attorney, since the second accident had settled, he would be able to follow the client’s original instruction and negotiate the liens. However, the attorney stated that this can be done only after Client C pays the attorney fee.

Attorney D argued to the State Bar of Nevada that the client’s duties to her lien holders were her own responsibility and were a separate contractual relationship between the client and her medical providers. Further, the attorney stated that the attorney-client relationship does not place a duty upon the attorney to pay all of the bills, where there are insufficient insurance coverages to pay them.

The state bar understood that Attorney D was holding in his trust account $10,000 to pay the lien holders, which is the balance of the first $15,000 settlement after payment of attorney fees. Attorney D had not made any payments to the lien holders, but the client stated that she had paid some of them out of her own pocket to keep the account(s) from going to collections.

The screening panel directed Attorney D to distribute Client C’s funds and provide proof of distribution to bar counsel. Because the dispute over the settlement funds could not be resolved, Attorney D filed a complaint for declaratory judgment, interpleader and other relief in the Eighth Judicial District Court on July 2, 2007, thereby taking steps to resolve the situation.

Attorney D was informed by the state bar that he had a duty under RPC 1.15 to promptly deliver funds that are held in an attorney trust account to the client or interested third party and should a dispute arise during the course of distribution of settlements funds, there are legal alternatives, such as filing an interpleader action in district court.³ Third party funds can not remain in an attorney client trust account indefinitely.

Attorney D was reprimanded for violating RPC (RPC) 1.3 (diligence) and RPC 1.15 (safekeeping property).

File No. 07-141-2048

Private reprimand and fine of $500 appropriate where attorney failed to respond to the state bar.

Client E sought to retain Attorney F in or about March 2002 in connection with a dispute involving watches which the client had purchased. In the State Bar of Nevada grievance, Client E made several allegations regarding the attorney’s purported representation of her.

The state bar sent three letters (May 3, June 7 and July 3, 2007, with the latter two letters sent via certified mail with signed receipts returned to the state bar) to Attorney F requesting a response to the grievance. When no response was forthcoming, a grievance file was opened. In a certified letter dated July 31, 2007, the state bar informed Attorney F that a grievance file had been opened and again requested that a response be provided within 10 days. However, no response was provided.

On December 19, 2007, as this matter was being prepared for screening, Attorney F’s legal assistant called the Office of Bar Counsel and stated that the response would be provided by December 20, 2007. The legal assistant followed up with a facsimile reiterating that a response would be provided by December 20. However, a response was not provided by that date.

On January 9, 2008, the Office of Bar Counsel left a message with the attorney’s office explaining that this disciplinary matter was being prepared for presentation to a screening panel of the Southern Nevada Disciplinary Board. The attorney was informed that if a response was not provided, this matter would be presented with a recommendation for a formal hearing.

At approximately 6:30 p.m. on January 9, 2008, a response was sent to the state bar via facsimile.

In this matter, the state bar was required to send Attorney F a total of four letters, open a grievance file and leave a message with the attorney’s office before finally receiving a response to the grievance. Such conduct violates the Rules of Professional Conduct and is not acceptable.

Attorney F was reprimanded for violating RPC 8.1(b) (bar admission and dDisciplinary matters) and the screening panel also imposed a $500 fine pursuant to SCR 102(6) (types of discipline).

ENDNOTES

1. The rules governing professional conduct were substantially revised effective May 1, 2006. Some of Baker’s conduct occurred before these revisions became effective, and some occurred after the effective date. The disciplinary complaint in this matter properly charged violations of the rules in effect at the time of the particular misconduct, which Baker has admitted.

2. See SCR 121 (Confidentiality) as amended eff. March 1, 2007.

3. See Achrem v. Expressway Plaza Limited, 112 Nev. 737, 917 P.2d 447 and Michel v. Eighth Judicial District Court, 117 Nev. 145, 17 P.3d 1003.