N e V A d A L A W Y e r - Home - State Bar of Nevada · fraudulent Silver Surety Bond certificate...
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40 DECEMBER 2009 NEVADA LAWYER BAR COUNSEL REPORT DECEMBER 2009 SOUTHERN NEVADA DISCIPLINARY BOARD LETTERS OF (PRIVATE) REPRIMAND 1 File No. 09-026-2557 Letter of reprimand, advertising matter. Client and his wife were sent correspondence from Attorney dated January 14, 2009. Client noted that his wife, who received the letter, perceived it to be an official document and became very upset. It was not until Client came home that they learned that the letter did not threaten a lawsuit, but was instead a “special offer.” Neither the envelope nor the letter contained the 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 behind RPC 7.3(c) is to allow the prospective client to immediately know that the communication 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. In this instance, if the envelope had contained the appropriate disclaimer, Client’s wife would have immediately known that the letter was an advertisement. As noted above, Attorney’s letter also failed to include the required disclaimer. Instead, the bottom of the correspondence stated, in size 8 font, “Please do not be offended by this letter. We obtained your information from public records. This letter is sent to offer HELP. If you do not need our help, throw the letter away or pass it on to a friend who does. Thank you.” In his response to the State Bar of Nevada, Attorney stated that: [I]n respect to Rule 7.3, our law firm does send out “mailers.” Our office uses a mailing device which is programmed to stamp in red ink “NOTICE: THIS IS AN ADVERTISEMENT!” on every letter and enveloped mailed. Unfortunately, it appears that for a period of approximately two to three weeks in January 2009 the red-ink stamp ran out of ink and therefore several letters were mailed without the disclaimer appearing. This issue has since been corrected and our mailings (as they have in the past) all have the Rule 7.3 language in red in size 24 point type (which is larger than any telephone number in the mailings). A review of state bar records indicates 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 letter being sent as is required by RPC 7.2A (Advertising Filing Requirements). Attorney was REPRIMANDED in this matter for violating RPC 7.2A (Advertising Filing Requirements) and RPC 7.3 (Communications With Prospective Clients). File No. 08-172-2987 Letter of reprimand appropriate when Attorney filed a non-meritorious claim. This matter was referred to the State Bar of Nevada by a judge. The Attorney filed a complaint on behalf of Client, who had given a Note and Deed of Trust for purchase of a home. The homeowner defaulted when the lender required payment in full of the remaining balance. According to the judge, “the homeowner then tendered a bogus and fraudulent Silver Surety Bond certificate as payment, which the Defendant ultimately declined as this form of payment was not covered under the provision of the Note.” The lender then filed a Motion to Dismiss Plaintiff’s Complaint for Improper Foreclosure. In Attorney’s response to Bar Counsel, he explained that a prior tenant was living with the prior owner when she passed away. The property was transferred through new ownership with the tenant and his family continuing to reside in the home as rental tenants until Client purchased the property on July 26, 2006. Attorney stated that Client attended a real-estate seminar where he met an alleged specialist in foreclosure actions who informed Client about a process where distressed homeowners could apply to the United States Treasury Department for a commercial discharge or restructuring of their mortgage obligations. Upon establishing a UCC Contract Trust Account with the U.S. Treasury, the debtor can submit the mortgage debt for an application of discharge or restructuring of the debt.
Transcript of N e V A d A L A W Y e r - Home - State Bar of Nevada · fraudulent Silver Surety Bond certificate...
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SOUTHERN NEVADA DISCIPLINARY BOARD
LETTERS OF (PRIVATE) REPRIMAND1
File No. 09-026-2557Letter of reprimand, advertising matter.
Client and his wife were sent correspondence fromAttorney dated January 14, 2009. Client noted thathis wife, who received the letter, perceived it to beanofficialdocumentandbecameveryupset. ItwasnotuntilClientcamehomethattheylearnedthattheletter did not threaten a lawsuit, but was instead a“specialoffer.”
Neither the envelope nor the letter contained thedisclaimerrequiredbyRuleofProfessionalConduct(RPC) 7.3(c) (Communications with prospectiveclients; Additional disclaimer on mailers or writtenadvertisementsorcommunications),whichstates,inpart,that:
Directorindirectmailenvelope,andwrittenmailcommunications or advertising circulars shallcontain,upontheoutsideoftheenvelopeanduponthecommunicationsideofeachpageofthecommunicationoradvertisement,inlegibletypethatisatleasttwiceaslargeasthelargesttypeusedinthebodyofthecommunication,inredink,thefollowingwarning:NOTICE: THIS IS AN ADVERTISEMENT!
The purpose behind RPC 7.3(c) is to allow theprospective client to immediately know that thecommunication froma lawyerseeking tooffer themlegalservices.Thisalsohelpsensure thatpotentialclientsarenotmisledorintimidatedintobelievingthataresponsetothecorrespondenceisrequired.Inthisinstance,iftheenvelopehadcontainedtheappropriatedisclaimer, Client’s wife would have immediatelyknownthattheletterwasanadvertisement.
Asnotedabove,Attorney’sletteralsofailedtoincludethe required disclaimer. Instead, the bottom of thecorrespondencestated,insize8font,“Pleasedonotbeoffendedbythisletter.Weobtainedyourinformationfrompublicrecords.ThisletterissenttoofferHELP.Ifyoudonotneedourhelp,throwtheletterawayorpassitontoafriendwhodoes.Thankyou.”
InhisresponsetotheStateBarofNevada,Attorneystatedthat:
[I]n respect to Rule 7.3, our law firm doessend out “mailers.” Our office uses a mailing
device which is programmed to stamp in red ink“NOTICE: THIS IS AN ADVERTISEMENT!” onevery letterandenvelopedmailed.Unfortunately,itappearsthatforaperiodofapproximatelytwotothreeweeksinJanuary2009thered-inkstampranoutofinkandthereforeseverallettersweremailedwithout the disclaimer appearing. This issue hassince been corrected and our mailings (as theyhaveinthepast)allhavetheRule7.3languageinredinsize24pointtype(whichislargerthananytelephonenumberinthemailings).
Areviewofstatebarrecordsindicatesthatthesolicitationletter at issue had not been previously filed with thestatebarandwasnot filedwith thestatebarwithin15daysoftheletterbeingsentasisrequiredbyRPC7.2A(AdvertisingFilingRequirements).
AttorneywasREPRIMANDED inthismatterforviolatingRPC7.2A(AdvertisingFilingRequirements)andRPC7.3(CommunicationsWithProspectiveClients).
File No. 08-172-2987Letter of reprimand appropriate when Attorney filed a non-meritorious claim.
ThismatterwasreferredtotheStateBarofNevadabyajudge.TheAttorneyfiledacomplaintonbehalfofClient,whohadgivenaNoteandDeedofTrustforpurchaseofahome.
The homeowner defaulted when the lender requiredpayment in full of the remaining balance. According tothe judge, “thehomeowner then tenderedabogusandfraudulent Silver Surety Bond certificate as payment,which the Defendant ultimately declined as this formofpaymentwasnot coveredunder theprovisionof theNote.”ThelenderthenfiledaMotiontoDismissPlaintiff’sComplaintforImproperForeclosure.
InAttorney’sresponsetoBarCounsel,heexplainedthataprior tenantwas livingwith thepriorownerwhenshepassedaway.Thepropertywastransferredthroughnewownership with the tenant and his family continuing toresideinthehomeasrentaltenantsuntilClientpurchasedthepropertyonJuly26,2006.
AttorneystatedthatClientattendedareal-estateseminarwherehemetanallegedspecialistinforeclosureactionswho informed Client about a process where distressedhomeownerscouldapply to theUnitedStatesTreasuryDepartment foracommercialdischargeor restructuringof theirmortgageobligations.UponestablishingaUCCContract Trust Account with the U.S. Treasury, thedebtorcansubmitthemortgagedebtforanapplicationofdischargeorrestructuringofthedebt.
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Clientwassuccessful inestablishing theaccountandprovided Bar Counsel with a copy of the Motion ofIndefinite Stay filed on May 30, 2008. The economicdischarge process Client attempted with the property,if successful, would have resulted in the Defendantreceiving a treasurer’s check from the Department ofTreasury.Client’ssilverbondwasnotbeingusedasatenderofpaymentbutwas tosetupan initialdepositwith the U.S. Treasury to establish his UCC ContractTrustAccount.
Inthiscase,thebilltenderedbyClientisnotanegotiableinstrumentbecauseitisnotmade“payabletobearerorto order” as required by section 3-104 of the UniformCommercialCode.Additionally,althoughacheckmaybeanegotiableinstrumentevenwhennotmadepayabletobearerortoorder,thebill isnotacheckbecauseitwasnotdrawnonabank.
As discussed above, Client did not tender “payment”but,rather,apieceofpaperthatwasentirelylackinginvalue.Therefore,thebilldidnotdischargehisobligationtopaythemortgage.
Attorney was REPRIMANDED for violating RPC3.1 (Meritorious Claims and Contentions), RPC 3.4(FairnesstoOpposingPartyandCounsel)andRPC4.1(TruthfulnessinStatementtoOthers).
File No. 08-226-2619Letter of Reprimand, various matters.
Attorney’sofficefaxedcorrespondencetoDefendant’snew employer. The correspondence made variousallegations and stated it was a final warning beforeAttorney would be forced to contact the police, thedistrictattorney,theStateBarofNevadaandfileacivilcomplaint inDistrictCourt.Aresponse letterwassentto Attorney by Defendant’s supervisor, who advisedAttorney thathisactionshaddisrupted theoperationsofherdepartment.Thesupervisorfurtherstatedthatinthefuture,allpersonalcorrespondenceshouldbesentdirectly toDefendant’s residenceandnotherplaceofemployment.
The testimony at the informal hearing before theSouthern Nevada Disciplinary Board was disputed.AttorneystatedthatDefendanttoldhimtofaxthelettertoherworkplace incareofhersupervisor.DefendantdeniedgivingAttorneytheseinstructions.Nevertheless,even assuming Attorney’s testimony was correct, thepanelfeltAttorneyshouldhaveknownbetterthansendsuchalettertoDefendant’swork,whichservedonlytoembarrassherinfrontofhernewemployer.
InAttorney’sresponsetothestatebar,AttorneystatedthatDefendant“hashadplentyofopportunitiestoresolvethismatteramicably.EvenasrecentlyasSeptember23,2008,Iofferedtodismisstheclaimsagainstheraslongasshepaidforthefilingandservicefees,returnedthefiledocumentspertainingtotheEstateandwithdrewherBarcomplaint.”Thispeaceofferingwasfaxedandwasgood for sevendays.Theofferwasextendedbeyonddeadlinedatetoavoidanyfurtherlitigationexpenses.
The Informal Hearing Panel agreed that Attorney’sstatement to Defendant requesting the withdrawal ofherbarcomplaintwas,inandofitself,isinviolationofRPC8.4
Attorney was REPRIMANDED for violating RPC 4.4(Respect for Rights of Third Persons) and RPC 8.4(Misconduct-EngageinConductthatisPrejudicialtotheAdministrationofJustice).
File No. 08-226-2619Attorney received a Letter of Reprimand for failure to respond to the State Bar of Nevada.
OnMay19,2008,ChiropractorcomplainedtothestatebarthatAttorneyhadfailedtopayhisliens.ChiropractorhadpreviouslytreatedoneofAttorney’sclientsregardinginjuries she sustained in two separate automobileaccidents.
Attorney’sinitialresponsetothestatebar,datedJune4,2008,acknowledgedtheliensandstatedthatAttorneywasattemptingtonegotiatethemthroughChiropractor’scounsel. However, Attorney noted that neither of theunderlyingpersonalinjurymattershadyetsettled.
ThestatebarsummarilydismissedthematteronJune24,2008,as the twopersonal injurymatterswerestillpending and, as such, Attorney could not make anydisbursements.Chiropractorwasinformedthathewasfree to contact the state bar again if he encounteredanydifficultyinreceivingpaymentaftereithercasewascompleted.
OnJuly31,2008,Chiropractor informed thestatebarthatoneofthemattershadsettledandattached“ThirdRequest”forpayment,whichreferencedpriorrequestsbeingmadeonJuly14andJuly18,2008.
ThestatebarsubsequentlyaskedAttorneytoprovideanupdateregardingthepersonalinjurymattersbyAugust14,2008.Noresponsewasreceived,however,andtworeminderlettersweresenttoAttorneyonSeptember17
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DISCIPLINE KEYResignation with charges pending: SCR 98(5)(b) Types of possible discipline listed generally: SCR 102Attorneys convicted of crimes: SCR 111Conditional guilty plea agreements (discipline by consent): SCR 113Reciprocal discipline: SCR 114Disbarred/Suspended attorneys: SCR 115Reinstatement: SCR 116Disability Inactive: SCR 117
Supreme Court Rules (SCRs): www.leg.state.nv.us/CourtRules/SCR.html
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 PRIVATE REPRIMAND – Lowest level of discipline. Not published, but disclosed upon request under the new rules. May also include up to a $1,000 fine. Remains eligible to practice.
ADMINISTRATIVE SUSPENSION/INACTIVE STATUS – Attorneys may be administratively suspended for failure to pay bar fees (SCR 98(12)), and/or placed on CLE inactive status 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.
andDecember10,2008,bothsentviacertifiedmailwithreturnreceiptrequested.
Prior to the December 10 reminder letter being issued,thestatebarhadspokenwithAttorney,onNovember5,2008,toconfirmAttorney’scurrentaddressasAttorney’spriorfirmhadrecentlydissolved.Duringtheconversation,AttorneywasinformedthatanupdatehadbeenrequestedregardingChiropractor’sgrievance.
Attorney provided an update on December 20, 2008,claiming that he was waiting for the second personalinjury matter to resolve before paying Chiropractor infull for both cases. Attorney’s letter expressed concernthatifChiropractorwerepaidinfullforthefirstcase,Chiropractorwouldnotbecooperativeinreducingthesecondlien,whichwasforasmallerdollaramount.
Attorneyalso informed thestatebar that thesecondmatter recently settled and that his client would besigningthereleasewithinthenextfewdays.Assuch,AttorneyanticipatedpayingChiropractorbytheendoftheyear.
OnJanuary12,2009,Chiropractorinformedthestatebar that he had yet to receive any payment fromAttorney. The state bar asked Attorney to updateregardingthetwomattersbyJanuary30,2009.
However, Attorney failed to respond. Two reminderlettersweresubsequentlysenttoAttorneyonFebruary3andFebruary24,2009,bothsentviacertifiedmailwithreturnreceiptrequested.ThelatterletterinformedAttorneythatfailuretorespondwouldbeconsideredaviolationofRPC8.1(BarAdmissionandDisciplinaryMatters). Attorney again failed to respond and theinstantgrievancefilewasopenedonMarch17,2009.
AttorneyfinallyupdatedthestatebaronApril3,2009,indicatingthatthesecondcheckhadissuedinJanuary2009,butwasmadepayabletotheincorrectfirm.Theinsurance company reissued the check in February2009,andwasdepositedonMarch10,2009.
Attorney’s April 3 letter also attached a copy of acheck made payable to Chiropractor, in the amountof $7,564.13, dated March 22, 2009. The amountappearstobethetotalforthetwoliens.However,asofJune22,2009,Chiropractormaintainedthathehadnotreceivedthecheck.
AlthoughChiropractorwasaggressiveinhiscollectionefforts,itdoesnotabsolveAttorneyofhisobligationsto respond to a lawful demand for information fromthestatebarpursuanttoRPC8.1(b)(BarAdmissionand Disciplinary Matters). The panel, in considering
Attorney’sfailuretotimelyresponsetotheStateBarofNevada,notedthatAttorneyhadbeenpreviouslyissuedaPublicReprimandinMarch2007forfailingto comply with deadlines in regard to four ordersfromtheSupremeCourtofNevadainanappellatecaseinwhichhewascounsel-of-record.
Attorney was REPRIMANDED in this matter forviolatingRPC8.1(b)(BarAdmissionandDisciplinaryMatters).
1. See SCR121(Confidentiality)asamendedeff.March1,2007.
