In Re: Discipline of Edmund Botha ( 2015 )

 Nev. 629, 633, 837 P.2d 853, 855 (1992). 2 We therefore "must examine the
record anew and exercise independent judgment," but the disciplinary
panel's recommendations nonetheless are persuasive. In re Discipline of
Schaefer, 117 Nev. 496, 515, 25 P.3d 191, 204 (2001). The State Bar
generally has the burden of showing by clear and convincing evidence that
an attorney committed the violations charged, In re Discipline of
Drakulich, 111 Nev. 1556, 1566, 908 P.2d 709, 715 (1995), but where, as
here, the attorney fails to respond to a complaint, "the charges shall be
deemed admitted," SCR 105(2). 3 The issue before this court therefore is
the appropriate level of discipline Botha did not file an opening brief;
therefore, this appeal stands submitted for decision on the record. SCR
105(3)(b).
In determining the appropriate discipline, this court has
considered four factors to be weighed: "the duty violated, the lawyer's
mental state, the potential or actual injury caused by the lawyer's
misconduct, and the existence of aggravating or mitigating factors." In re
Discipline of Lerner, 124 Nev. 1232, 1246, 197 P.3d 1067, 1077 (2008).
The purpose of attorney discipline is to protect the public, the courts, and
2 SCR 105(3)(b) has been amended to give deference to a disciplinary
panel's factual findings, but that amendment is not yet effective. See In re
Amendments to Court Rules Regarding Attorney Discipline, Specifically,
SCR 105, ADKT 0505 (Order Amending Supreme Court Rule 105,
November 5, 2015) (providing that amendment is "effective 30 days from
the date of this order").
3 Botha responded to the first complaint, which was based on his
criminal conviction, but he did not respond to the second complaint, which
was related to his conduct following his temporary suspension. The
allegations in the first complaint are established by virtue of the federal
conviction.
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the legal profession, not to punish the attorney. State Bar of Nev. v.
Claiborne, 104 Nev. 115, 213, 756 P.2d 464, 527-28 (1988).
Absent mitigating factors, disbarment generally is the
appropriate discipline for criminal conduct that involves elements of fraud
or misrepresentation, ABA Standards for Imposing Lawyer Sanctions,
Compendium of Professional Responsibility Rules and Standards,
Standard 5.11(a) (2015), such as Botha's felony tax evasion conviction, see
U.S. v. Daniel, 956 F.2d 540, 542 (6th Cir. 1992) (noting that elements of
tax evasion under 26 U.S.C. § 7201 are "the existence of a tax deficiency,
willfulness, and an affirmative act constituting an evasion or an
attempted evasion of the tax"). Similarly, the misappropriation of client
funds may warrant disbarment absent mitigating factors. Compare ABA
Standards, Standard 4.11 ("Disbarment is generally appropriate when a
lawyer knowingly converts client property and causes injury or potential
injury to a client."), with id. Standard 4.12 ("Suspension is generally
appropriate when a lawyer knows or should know that he is dealing
improperly with client property and causes injury or potential injury to a
client."). And while it is not entirely clear whether Botha's unauthorized
practice of law caused "serious or potentially serious injury" to a client
that would warrant disbarment rather than suspension, compare id.
Standard 7.1, with id. Standard 7.2., that misconduct aggravates the other
violations, see SCR 102.5 (providing that "pattern of misconduct,"
multiple offenses," and "bad faith obstruction of the disciplinary
proceeding by intentionally failing to comply with . . . orders" are
aggravating factors).
Here, the hearing panel found a single mitigating factor: no
prior disciplinary record. We agree with the hearing panel that this single
mitigating factor• does not warrant discipline less than disbarment,
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particularly considering the aggravating factors found by the hearing
panel (dishonest or selfish motive, bad faith obstruction of the disciplinary
proceeding by intentionally failing to comply with rules or orders, refusal
to acknowledge the wrongful nature of conduct, vulnerable victims,
substantial experience in the practice of law, and illegal conduct). While
we are mindful that disbarment in Nevada is irrevocable, SCR 102(1),
Botha's misconduct and his demonstrated indifference to this court's
temporary suspension order and the disciplinary proceedings indicate that
disbarment is necessary in this instance to protect the public, the courts,
and the legal profession.
Accordingly, we disbar attorney Edmund C. Botha from the
practice of law in Nevada Such disbarment is irrevocable. SCR 102(1).
Botha shall pay the costs of the disciplinary proceedings, including bar
counsel and staff salaries, within 30 days from the date of this order. See
SCR 120(7). The parties shall comply with the relevant provisions of SCR
121.1.
It is so ORDERED.
ntt , C.J.
Hardesty
- D.1/221 I m'd J.
Parraguirre Douglas,
Cherry Saitta
J.
Gibtons Pickering
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cc: Chair, Southern Nevada Disciplinary Board
Edmund C. Botha
Stan Hunterton, Bar Counsel, State Bar of Nevada
Kimberly Farmer, Executive Director, State Bar of Nevada
Perry Thompson, Admissions Office, U.S. Supreme Court
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