In Re: Reinstatement Of Terry L. Wike ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF No. 83296
REINSTATEMENT OF TERRY L.
WIKE, BAR NO. 721 1. MLA)
- FEB 24 2022
BY
HIEF EPUTY CLERK
ORDER OF CONDITIONAL REINSTATEMENT
This is an automatic review of a Southern Nevada Disciplinary
Board hearing panel's recommendation to reinstate suspended attorney
Terry L. Wike with certain conditions.'
In October 2020, this court suspended Wike from the practice
of law for six months and one day. In re Discipline of Wike (Wike It), No.
81340, 2020 WL 5988543 (Nev. Oct. 8, 2020) (Order of Suspension). The
discipline order also required that Wike pay the disciplinary proceeding
costs by November 7, 2020, and provided that upon his reinstatement, in
addition to any other conditions recommended by the hearing panel, Wike
would be subject to the remainder of the stayed portion of his suspension
and the corresponding conditions set forth in In re Discipline of Wike (Wike
1), No. 79305, 2020 WL 970354 (Nev. Feb. 27, 2020) (Order of Suspension)
(suspending Wike for 24 months with all but the first 3 months stayed).
Wike II, 2020 WL 5988543 at *4. Wike petitioned for reinstatement after
completing his suspension and having complied with nearly all of the
requirements in the disciplinary order.
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this matter.
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Based on our de novo review, we agree with the panel's
conclusions that Wike has satisfied his burden in seeking reinstatement by
clear and convincing evidence. SCR 116(2) (providing that an attorney
seeking reinstatement must demonstrate compliance with reinstatement
criteria "by clear and convincing evidence"); Application of Wright, 75 Nev.
111, 112-13, 335 P.2d 609, 610 (1959) (reviewing a petition for
reinstatement de novo). As to Wike's failure to comply with the suspension
order's requirement that he pay the disciplinary proceedings costs, we agree
with the panel that he has "present[ed] good and sufficient reason why [he]
should nevertheless be reinstated." SCR 116(2); see SCR 116(2)(a)
(requiring full compliance with the terms of all prior disciplinary orders for
reinstatement). In particular, the record supports the panel's finding that
Wike had financial difficulties since his suspension and was unable to pay
the cost assessments during his suspension.
Wike has agreed to reinstatement on a probationary status but
disputed below and continues to dispute in his briefing in this court, the
requirement that he pay the costs for the disciplinary proceedings as a
condition of his reinstatement. In particular, he argues that his debt to the
State Bar for the cost assessment was discharged in bankruptcy. The panel
disagreed with Wike's argument, concluding that SCR 120 costs owed to the
State Bar are excepted from discharge in bankruptcy under 11 U.S.C. § 523because they constitute fines, penalties, or forfeitures payable to a
governmental agency, and are punitive, deterrent, and rehabilitative in
nature.
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(0> 1947A 491104,
Wike provided no evidence that the bankruptcy court
discharged the cost assessment,2 but the issue here is whether his
reinstatement may be conditioned on the payment of those costs. We
conclude that it may regardless of whether the cost assessment in the
discipline order was discharged in bankruptcy. The primary purposes of
attorney discipline are to promote an attorney's rehabilitation, deter
misconduct, and protect the public. E.g., State Bar of Nevada v. Claiborne,
104 Nev. 115, 756 P.2d 464 (1988); In re Findley, 593 F.3d 1048, 1052-54
(9th Cir. 2010); In re Feingold, 730 P.3d 1268, 1275 (11th Cir. 2013);
Brookrnan v. State Bar of California, 760 P.2d 1023, 1026 (Cal. 1988). As
such, the recommended condition of reinstatement does not run afoul of 11
USC § 525 because its purpose is not to penalim Wike for having obtained
a discharge of his debt. The California Supreme Court reasoned similarly
when it rejected an attorney's argument that 11 1JSC § 525 prohibited
requiring him to repay the client security fund for restitution the fund paid
to the attorney's client after the attorney obtained a discharge of the
restitution order. Brookman, 760 P.2d at 1025. In so doing, the court
observed that "the purpose of attorney discipline is not to penalize petitioner
merely for having obtained a discharge of his debt in bankruptcy. Instead,
it is to protect the public from specified professional misconduct . . and at
the same time to rehabilitate the errant attorney." Id. at 1025-26; see also
2Wike's bankruptcy petition was pending when the reinstatement
proceedings took place. In his briefing in this court, he claims that the
bankruptcy court has since issued an order of discharge. He has not,
however, provided a copy of any such order.
3
Hippard v. State Bar, 782 P.2d 1140, 1145 (Cal. 1989 (extending
Brookrnan's reasoning to petitions for reinstatement).3
We therefore approve the panel's recommendation to reinstate
Wike to the practice of law with a 24-month probation supervised by the
State Bar, subject to the conditions set forth by the panel, summariwd as
follows:
1. Wike will be subject to the conditions imposed in
Wike 1.
2. Wike must obtain a mentor who practices in
personal injury law and has experience and
training in firm accounting and client trust
accounts.
3. Wike must submit quarterly reports to his mentor
and the State Bar and be subject to periodic audits
by the State Bar.
4. Wike must pay $21,138.15 in fees and costs for the
previous disciplinary proceedings.4
in addition to the probation conditions, Wike must pay the costs of the
reinstatement proceeding, including $2,500 under SCR 120, within 30 days
of this order, if he has not done so already. With these conditions, we hereby
3We are not persuaded by Wike's argument that 13rookman is
distinguishable because it dealt with restitution instead of disciplinary
costs. Other courts have concluded that the reasoning in Kelly v. Robinson,
479 U.S. 36 (1986), that was central to Brookrnan, extends to disciplinary
costs. E.g., Feingold, 730 F.3d at 1275; Richmond v. New Hampshire
Supreme Ct. Cornrn. on Pro. Conduct, 542 F.3d 913 (1st Cir. 2008).
4The record indicates that the panel contemplated that Wike would
have the 24-month probationary period to pay the costs, and we agree that
timefrarne is reasonable under the circumstances.
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reinstate Terry L. Wike to the practice of law in Nevada effective on the
date of this order. See SCR 116(5) (allowing conditions to reinstatement).
it is so ORDERED.
Parraguirre
, J. , J.
Hardesty Stiglich
6,PA) , J. J.
Cadish Silver
, J.
Pickering Herndon
cc: Chair, Southern Nevada Disciplinary Board
Law Offices of Terry L. Wike
Bar Counsel, State Bar of Nevada
Executive Director, State Bar of Nevada
Admissions Office, U.S. Supreme Court
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