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.
If you have any questions about this article please call or email Joshua P. Gilmore at 702-562-8820 or JGilmore@BaileyKennedy.com. Additional resources can be found at www.baileykennedy.com/category/articles/
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/
Recently, in Walker v. Second Judicial District Court ex rel. County of Washoe, Nev. Adv. Op. 80, 476 P.3d 1194 (Dec. 10, 2020), the Nevada Supreme Court provided clarification regarding the requirements which must be met to seek extraordinary writ relief regarding an issue for which the district court has been entrusted to exercise its discretion. Specifically, writ relief is not appropriate to correct every error or abuse of discretion alleged to have been committed by the district court. At a minimum, a party must be able to demonstrate a manifest abuse of discretion by the lower court, as well as an impending, irreparable harm that will occur if the party must await entry of a final judgment before seeking appellate review.
While most issues are appropriate for review on appeal at the end of a case, after entry of a final judgment, there are some issues, like the invocation of a privilege, which may warrant immediate review by the Nevada Supreme Court. In such circumstances, a party can file a petition for extraordinary writ relief to request that the Supreme Court exercise its discretion to review the issue prior to entry of a final judgment in the case.
The most common writ relief sought in civil cases is a writ of mandamus by which the Supreme Court can order any government official or office to perform one or more of its legal duties. In most instances, this means that the Supreme Court can order a district court judge to perform an act which it is legally obligated to do—i.e., issue an order protecting a party’s attorney-client privileged documents from disclosure during discovery, dismiss an action where a claim cannot be stated by the plaintiff as a matter of law, or sanction a party for a failure to comply with a court order.
To obtain issuance of a writ of mandamus or any other extraordinary writ, like a writ of prohibition (which can be used to prohibit a district court judge from taking some action), a party must be able to demonstrate the following:
First, the petitioner must show that the district court manifestly abused its discretion or acted arbitrarily or capriciously. Merely contending that the district court committed an error is not sufficient. An appeal is more than an adequate remedy for most errors that may have been committed in the case. Rather, writ relief is only appropriate when the lower court: (1) acts contrary to the law; (2) misapplies the law; (3) takes an action that is manifestly unreasonable; or (4) exercises partiality, prejudice, bias, or ill will. In sum, a petitioner must show that the district court manifestly abused its discretion by taking an action or making a decision “in the absence of a clearly established factual and legal basis to do so.” Id. at 1197.
Second, the petitioner must show that no other plain, speedy, or adequate legal remedy is available to correct the alleged error. Essentially, a party must be able to demonstrate that some impending, irreparable harm will occur if the Supreme Court does not remedy the district court’s error before entry of final judgment. It is not sufficient merely to claim that extraordinary writ relief would be easier or more expeditious than awaiting the right to appeal. Id. at 1198.
Disclaimer
The information provided in this article does not, and is not intended to, constitute legal advice. All information, content, and materials available in this article are for general informational purposes only. The information in this article may not constitute the most up-to-date legal information. Any links to third-party websites included in this article are only made for the convenience of the reader, and the author of this article does not recommend or endorse the contents of the third-party sites.
Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter. No reader of this article should act or refrain from acting on the basis of information in this article without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein — and your interpretation of it — is applicable or appropriate to your particular situation. Use of, and access to, this article, or any of the links or resources contained herein do not create an attorney-client relationship between the reader and author.
All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed. The content of this article is provided “as is;” no representations are made that the content is error-free.
Several of Nevada’s Rules of Civil Procedure require parties, and non-parties, to produce all documents, electronically stored information, and tangible things that are within their “possession, custody, or control.” However, until recently, neither the Rules of Civil Procedure nor the Nevada Supreme Court had defined the scope of this phrase. On July 9, 2020, the Nevada Supreme Court issued a new opinion clarifying that the phrase pertains to all documents, electronically stored information and tangible things: (1) that are within a party’s or non-party’s actual possession; or (2) that the party or non-party has a legal right to obtain. State, Dep’t of Taxation v. Eighth Jud. Dist. Ct. ex rel. Cnty. of Clark, 136 Nev. Adv. Op. 42, 466 P.3d 1281 (July 9, 2020).
Specifically, NRCP 16.1(a)(1)(A)(ii) requires a party to disclose copies “of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or
defenses . . . .” Similarly, NRCP 34(a)(1), requires a party to produce copies of all documents, electronically stored information, and tangible things which are within the party’s “possession, custody, or control” and responsive to the adverse party’s written discovery request. Moreover, NRCP 45(a)(1)(A)(iii) requires a non-party to produce all documents, electronically stored information, and tangible things which are within the non-party’s “possession, custody, or control” and are responsive to a subpoena served on the non-party.
There has been much debate over the definition of the phrase “possession, custody, or control” and the lengths parties or non-parties must go to in order to obtain relevant documents that are beyond their physical possession. Often, parties and non-parties relied on federal law for guidance on this issue; however, federal law was not very instructive as there was a split of authority among the federal courts. Several Circuit Courts of Appeal, including the Ninth Circuit Court of Appeal, interpreted the phrase to mean documents in a party’s or non-party’s actual possession, as well as documents that the party or non-party had a legal right to obtain. See, e.g., In re Citric Acid Litig., 191 F.3d 1090, 1107-08 (9th Cir. 1999). Other Circuit Courts of Appeal, like the Second Circuit Court of Appeal, defined the phrase to mean documents within a party’s or non-party’s actual possession or documents that the party or non-party had a “practical ability to produce,” even if there is no legal right to such documents. Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 138 (2d Cir. 2007).
The Nevada Supreme Court has ultimately chosen to adopt the Ninth Circuit’s interpretation of the phrase “possession, custody, or control (actual possession or a legal right to obtain). The Court reasoned that requiring a party to produce documents, electronically stored information, or tangible things that it had the “practical ability” to obtain with good faith efforts would often prove futile where the party lacked the legal right to such documents.
Disclaimer
The information provided in this article does not, and is not intended to, constitute legal advice. All information, content, and materials available in this article are for general informational purposes only. The information in this article may not constitute the most up-to-date legal information. Any links to third-party websites included in this article are only made for the convenience of the reader, and the author of this article does not recommend or endorse the contents of the third-party sites.
Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter. No reader of this article should act or refrain from acting on the basis of information in this article without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein — and your interpretation of it — is applicable or appropriate to your particular situation. Use of, and access to, this article, or any of the links or resources contained herein do not create an attorney-client relationship between the reader and author.
All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed. The content of this article is provided “as is;” no representations are made that the content is error-free.
On May 28, 2020, the Nevada Supreme Court issued an opinion which impacts the scope of the attorney-client privilege. Specifically, in Canarelli v. Eighth Judicial District Court ex rel. County of Clark, 136 Nev. Adv. Op. 29, 2020 WL 2777371 (May 28, 2020), the Court determined: (1) that a client’s notes made in preparation for or contemporaneously with an attorney-client communication are privileged regardless of physical delivery of the notes to counsel; and (2) that there is no fiduciary exception to the privilege in Nevada.
In Canarelli, the beneficiary of an irrevocable trust filed a petition seeking to compel the trustee to produce all information relating to a purchase agreement the trustee entered into to sell off trust assets, as well as an inventory and accounting of the trust. The trustee retained counsel and spoke to his counsel on the phone regarding his response to the petition. During discovery, the trustee’s counsel inadvertently disclosed the trustee’s notes that he composed in preparation for his phone call with his counsel, as well as the notes he made contemporaneously memorializing the defense strategies discussed during the call. The trustee’s counsel attempted to claw back the documents claiming the notes were attorney-client privileged and work product. Id. at *1-2.
The discovery commissioner determined that the notes were discoverable because of the fiduciary exception and common interest exceptions to the attorney-client privilege and the substantial need exception to the work product doctrine. The district court adopted the discovery commissioner’s findings; however, the district court also determined that the attorney-client privilege did not apply because it could not be assumed that the trustee’s notes had been communicated to his counsel. Id. at *2.
In the subsequent writ proceedings, the Supreme Court examined for the first time whether a client must deliver his notes to his attorney in order for the notes to constitute a “communication” for the purposes of the attorney-client privilege. The Court decided to follow federal precedent and concluded that physical delivery is not necessary for attorney-client privilege protection. “[S]o long as the content of the notes was previously or is subsequently communicated between a client and counsel, the notes constitute communications subject to the attorney-client privilege. Holding otherwise would discourage a client from diligently preparing for a conversation with counsel and undermine a client’s ability to confidently memorialize any legal advice received.” Id. at *4. Moreover, in order to assert the privilege, the client does not have to prove that he “spoke each and every word written in his or her notes to counsel verbatim.” The client need only submit his counsel’s billing records and their declarations to prove that the content of the notes was communicated to his counsel. Id. at *5.
Further, the Court examined for the first time the applicability of a fiduciary exception to the attorney-client privilege. Id. In the context of trust disputes, many jurisdictions have held that a fiduciary, like a trustee, cannot assert the attorney-client privilege against beneficiaries on matters of trust administration. See Murphy v. Gorman, 271 F.R.D. 296, 305 (D.N.M. 2010). This exception has been applied to other fiduciary relationships beyond that of a trustee and beneficiary. See Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970) (applying the fiduciary exception in a stockholder derivative action, and holding that “[w]hen stockholders sue a corporation for acting contrary to the stockholders’ interests, the stockholders may obtain otherwise-privileged materials where they can show cause why the attorney-client privilege should not be invoked in the particular case”). However, because the Nevada legislature enacted a privilege statute with only five specifically defined exceptions to the attorney-client privilege, and these five exceptions do not include the fiduciary exception, the Supreme Court refused to create a sixth exception by judicial fiat. Canarelli, 136 Nev. Adv. Op. 29, at *5-6. Therefore, the Supreme Court upheld the well-known rule of statutory construction that “‘the expression of one thing is the exclusion of another.’” Id. at *5 (quoting Galloway v. Truesdell, 83 Nev. 13, 26, 422 P.2d 237, 246 (1967)).
Disclaimer
The information provided in this article does not, and is not intended to, constitute legal advice. All information, content, and materials available in this article are for general informational purposes only. The information in this article may not constitute the most up-to-date legal information. Any links to third-party websites included in this article are only made for the convenience of the reader, and the author of this article does not recommend or endorse the contents of the third-party sites.
Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter. No reader of this article should act or refrain from acting on the basis of information in this article without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein — and your interpretation of it — is applicable or appropriate to your particular situation. Use of, and access to, this article, or any of the links or resources contained herein do not create an attorney-client relationship between the reader and author.
All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed. The content of this article is provided “as is;” no representations are made that the content is error-free.