Opinion
No. 33875.
January 19, 2000.
ORDER OF SUSPENSION
This is an automatic appeal from a recommendation of a hearing panel of the Southern Nevada Disciplinary Board to suspend attorney Michael V. Stuhff for six months and one day. The panel also recommended that Stuhff be required to pay restitution to the client harmed by his conduct.
This disciplinary complaint arose out of Stuhff's representation of Barbara Melvin in connection with two actions. In 1991, Stuhff was retained to represent Melvin in an action against the Las Vegas Metropolitan Police Department for civil rights violations stemming from a search of Melvin's apartment. Melvin claimed that the apartment was ransacked, and that she was harassed and humiliated during the course of the search. Stuhff filed an action in federal court on Melvin's behalf. In December 1992, the action was dismissed for lack of prosecution based on Stuhff's failure to pursue the matter. Stuhff asserts that at least part of the reason for the dismissal was Melvin's failure to cooperate in responding to discovery requests.
Melvin also requested that Stuhff file an action to recover damages for injuries sustained in a car accident. Melvin's medical bills were approximately $7,700. Stuhff, however, failed to file the complaint before the statute of limitations expired.
In August 1993, Stuhff wrote a letter to Melvin in which he admitted his negligence in failing to file the complaint before the limitations period expired, and advised her to seek independent counsel. Stuhff also gave Melvin $1,500 so that she would have funds to retain other counsel.
Stuhff filed a personal bankruptcy petition sometime in 1993. In November 1993. Melvin retained counsel, who filed a creditor's claim in Stuhff's bankruptcy case. Stuhff agreed to make payments to Melvin through the bankruptcy trustee pursuant to his bankruptcy plan. Stuhff also agreed to make additional payments to Melvin "outside the plan" as a nondischargeable debt. It appears that Stuhff made the payments required by the bankruptcy plan to the trustee; however, the trustee misapplied the funds owed to Melvin and distributed them to another purported creditor.
In February 1994, Stuhff entered into a mentoring agreement with the state bar for the monitoring of his practice by an experienced attorney who would provide guidance to Stuhff. This agreement arose out of another disciplinary complaint arising from conduct in 1992-93. Pursuant to this agreement, attorney Cal Potter was appointed to mentor Stuhff. This agreement was entered into as a disciplinary diversion, and was intended to resolve all pending disciplinary matters. The mentoring was to continue for at least one year, through February 1995, when Potter was to file a report indicating whether further monitoring was required. In addition to mentoring, Stuhff was fined and a public reprimand was issued, and Stuhff was ordered to pay the costs of the disciplinary proceeding.
In March 1995, Melvin filed a grievance against Stuhff with the state bar based on Stuhff's mishandling of both the civil rights case and the personal injury case. The grievance was forwarded to Stuhff, and he responded in May 1995 by candidly admitting his negligence.
In April 1996, the bar presented Melvin's grievance to a screening panel. The screening panel recommended formal proceedings, and a formal complaint was filed by the state bar on May 22, 1996. Stuhff repeatedly requested and obtained several stipulations for extensions of time to respond to the complaint. Finally, Stuhff moved to dismiss the complaint and also filed a petition for a writ of prohibition with this court, arguing that the complaint was barred by the mentoring agreement. This court denied the petition, and it appears that the state bar denied the motion to dismiss, as Stuhff eventually filed an answer to the complaint after having obtained several additional extensions of time.
A hearing was held in January and February of 1999. At the hearing, bar counsel asked for a public reprimand. The hearing panel rejected Stuhff's argument that this matter was covered by the mentoring agreement. The panel further concluded that Stuhff had violated SCR 151 (competence), SCR 153 (diligence), SCR 154 (communication) and SCR 171 (expediting litigation). The panel found two aggravating circumstances: (1) an extensive discipline history (four private reprimands and three public reprimands), and (2) experience in the practice of law. The panel identified no mitigating circumstances. Based on these factors, the panel recommended a suspension of six months and one day.
Stuhff admits that his conduct was in violation of ethical rules, but argues that the panel failed to consider mitigating circumstances, and that the suspension is too severe. Stuhff submits that no more than a public reprimand is warranted. Stuhff also asserts that the entire proceeding was precluded by the mentoring agreement, and that this proceeding should be abated because of the long delay in bringing the matter to a hearing. Stuhff does not contest the panel's recommendation that he pay restitution to Melvin.
The state bar argues that Stuhff failed to show mitigating circumstances by clear and convincing evidence, and that the recommended suspension is appropriate given Stuhff's extensive discipline history. The bar also argues that this proceeding was not precluded by the mentoring agreement, nor should any delay abate the proceeding.
Initially, we conclude that any delay in this disciplinary proceeding should not abate the proceeding. SCR 119(2) states that, unless specifically stated otherwise, time in the disciplinary rules is directory and not jurisdictional, and that a failure to meet a time limit in a particular rule will not justify abatement of the proceeding. Additionally, it appears that at least several months of the delay were occasioned by Stuhff's own actions in seeking no less than eight extensions of time to answer, and his actions in filing the motion to dismiss below and the writ petition in this court.
Additionally, we conclude that this proceeding was not encompassed by the prior mentoring agreement. The agreement was entered into as part of a conditional plea agreement for a specific, unrelated disciplinary complaint. While the conduct which gave rise to the instant complaint had occurred at the time the mentoring agreement was entered into, Melvin had not yet filed her grievance. In no way could Melvin's grievance be said to have been pending at the time the mentoring agreement was executed.
We conclude that clear and convincing evidence supports the panel's conclusion that Stuhff violated SCR 151 (competence), SCR 153 (diligence), SCR 154 (communication), and SCR 171 (expediting litigation). See In re Stuhff, 108 Nev. 629, 837 P.2d 853 (1992) (holding that the degree of proof required in attorney disciplinary proceedings is clear and convincing evidence); SCR 105(2)(e). We further conclude that a suspension is appropriate given Stuhff's extensive disciplinary history. It appears that reprimands, whether public or private, have not motivated Stuhff to conform his conduct to the standard required of attorneys licensed in this state. However, we conclude that a six month and one day suspension, which would require Stuhff to petition for reinstatement pursuant to SCR 116, is too harsh. See SCR 116(1) (attorney suspended for more than six months may not resume practice until reinstated by this court).
Additionally, we note that the mentoring reports in the record indicate that although Stuhff is a capable trial lawyer, his law practice management skills were marginal even at the conclusion of the mentoring period. The record reflects that Stuhff is once again operating as a solo practitioner, with no support in this regard. We therefore conclude that, upon the conclusion of Stuhff's suspension, some form of monitoring of his law practice is appropriate.
Accordingly, we hereby suspend Stuhff from the practice of law for a period of sixty (60) days. Upon the expiration of his suspension, Stuhff shall participate in the state bar's law office management program, if available, for a one-year period. Alternatively, if the law office management program is not available, Stuhff shall cooperate with the state bar in establishing a mentorship program so that his law practice can be monitored for a one-year period. Additionally, Stuhff must continue restitution payments to Melvin until she receives the entire amount agreed to in the bankruptcy proceedings, and must pay the costs of this disciplinary proceeding.
The parties shall comply with the notice provisions of SCR 115.
ROSE, C.J.
SHEARING, J.
LEAVITT, J.
I would prefer we restrict the discipline in this matter to a public reprimand. Suspension would, in my view, serve very little purpose, given that Stuhff underwent a comprehensive mentoring program in connection with other disciplinary issues years after the offenses that are the subject of this particular proceeding.
However, to insure that the less severe suspension be imposed, I concur with ROSE, C.J., SHEARING and LEAVITT, JJ.
Had I not concurred as indicated, the vote on the discipline would have been deadlocked.
I would approve in its entirety the recommendation of the hearing panel. Accordingly, I dissent.