In re Discipline of Serota ( 2013 )

129 Nev., Advance Opinion &Co
IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF DISCIPLINE OF I No. 57960
RONALD N. SEROTA, BAR NO. 7904.
IN THE MATTER OF DISCIPLINE OF I No. 59551
RONALD N. SEROTA, BAR NO. 7904.
IN THE MATTER OF DISCIPLINE OF No. 60719
RONALD N. SEROTA, BAR NO. 7904.
FILED
OCT 0 3 2013
Automatic review of a Southern Nevada Disciplinary Board
hearing panel's recommendation that attorney be disbarred from the
practice of law in Nevada (Docket No. 57960); original petition by bar
counsel to report attorney convicted of crime (Docket No. 59551); original
petition by attorney for dissolution of order temporarily suspending him
from the practice of law (Docket No. 60719).
Recommendation approved (Docket No. 57960); petitions
denied as moot (Docket Nos. 59551160719).
Ronald N. Serota, Las Vegas,
in Proper Person.
David Clark, Bar Counsel, and Glenn Machado, Assistant Bar Counsel,
Las Vegas,
for the State Bar of Nevada.
9 4'5,
BEFORE PICKERING, C.J., GIBBONS, HARDESTY, PARRAGUIRRE,
DOUGLAS, CHERRY and SAITTA, JJ.
OPINION
PER CURIAM:
These bar matters, though separately docketed, all involve the
same attorney, Ronald N. Serota, Bar No. 7904. They are not
consolidated; however, we have elected to resolve them in a single
disposition. 1
Docket No. 57960 is an automatic review of a Southern
Nevada Disciplinary Board hearing panel's recommendation that Serota
be disbarred from the practice of law in Nevada. See SCR 105(3)(b).
Serota misappropriated $319,000 in client funds that were to be used to
satisfy a judgment in a Securities and Exchange Commission (SEC) action
against the client. He asks us to impose a lesser sanction, contending that
because of mitigating factors, we should merely suspend him from the
practice of law and/or refer him to a diversion program. On de novo
review, we conclude that disbarment is the proper sanction and therefore
approve the panel's recommendation.
Docket No. 59551 is an original petition by bar counsel
advising us that Serota has been convicted of a felony for the same conduct
underlying the disciplinary matter. See SCR 111(4). Docket No. 60719 is
'We originally decided these matters in an unpublished order filed
May 24, 2013. Bar counsel subsequently filed a motion pursuant to NRAP
36(0 to reissue our order as an opinion. We grant the motion and
therefore issue this opinion in place of our prior order.
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an original petition by Serota seeking dissolution of our prior order
temporarily suspending him from the practice of law. 2 See SCR 102(4)(d).
We conclude that the petitions in Docket Nos. 59551 and 60719 have been
rendered moot as a result of our decision in Docket No. 57960 that Serota
be disbarred from the practice of law.
FACTS AND PROCEDURAL HISTORY
Docket No. 57960
Serota represented a client in an action by the SEC. The SEC
alleged that the client engaged in accounting practices that were violative
of federal law. On August 3, 2009, Serota's client signed a consent to
entry of judgment, which was filed with the federal court on August 27,
2009.
In anticipation of this negotiated outcome, the client paid
Serota all of the monies necessary to satisfy the judgment in advance, by
way of 14 checks totaling $319,901.59 written between July 2 and July 24,
2009. The checks were deposited into Serota's client trust account. Each
check contained a notation indicating that it was for some aspect of the
SEC action.
Meanwhile, on July 16, 2009, a check from Serota's client
trust account was written to Beverage Plus, a company in which Serota
had an ownership interest, for $225,000. Despite this misappropriation,
Serota continued to accept additional checks from the client until the
2 We
previously temporarily suspended Serota from the practice of
law pending the outcome of the instant disciplinary proceedings. In re
Discipline of Serota, Docket No. 54856 (Order of Temporary Suspension,
November 18, 2009).
3
client had paid him the entire amount of the anticipated judgment in the
SEC action. On July 28, 2009, a check from Serota's trust account was
written to Clean Path Resources, another company in which Serota had an
interest, for $94,000. Thus, Serota had misappropriated virtually the
entire amount of the judgment prior to having his client sign the consent
to entry of judgment on August 3, 2009.
Pursuant to the signed consent, final judgment was entered
against Serota's client in the SEC action on September 25, 2009. The final
judgment ordered the client to, among other things, pay a total judgment
of $319,901.59 within 10 business days. On October 7, 2009, just two days
before the judgment was to be paid, Serota admitted his
misappropriations to the state bar.
Consequently, the state bar filed a complaint against Serota
alleging that his conduct violated RPC 1.15 (safekeeping property), RPC
3.4 (fairness to opposing party and counsel), and RPC 8.4 (misconduct).
Thereafter, a formal disciplinary hearing was held, at which the state bar
put on evidence of Serota's misappropriations and of aggravating
circumstances it alleged were present in this matter; the defense focused
primarily on mitigating circumstances that it alleged were present.
The disciplinary panel found unanimously that Serota had
violated RPC 1.15 and RPC 8.4. It recommended, by a 4-1 vote, that
Serota be disbarred and ordered to pay the costs of the proceedings.
Consequently, Serota's disciplinary matter was forwarded to us for
automatic review pursuant to SCR 105(3)(b).
Docket Nos. 59551 and 60719
Bar counsel subsequently filed an original petition pursuant to
SCR 111(4), Docket No. 59551, informing this court that Serota was
4
convicted in the Eighth Judicial District Court of one count of theft, a
category B felony pursuant to NRS 205.0832 and NRS 205.0835, for the
same conduct underlying the disciplinary proceeding. Thereafter, Serota
filed an original petition pursuant to SCR 102(4)(d), Docket No. 60719,
seeking dissolution of our November 18, 2009, order of temporary
suspension entered in Docket No. 54856.
DISCUSSION
We review a decision of a hearing panel recommending
disbarment automatically. SCR 105(3)(b). The panel's findings must be
supported by clear and convincing evidence. SCR 105(2)(e); In re
Discipline of Drakulich, 111 Nev. 1556, 1566, 908 P.2d 709, 715 (1995).
Although persuasive, the panel's findings and recommendations are not
binding on us. In re Discipline of Droz, 123 Nev. 163, 168, 160 P.3d 881,
884 (2007). Our review is conducted de novo, requiring us to exercise
independent judgment to determine whether and what type of discipline is
warranted. SCR 105(3)(b); In re Discipline of Stuhff, 108 Nev. 629, 633,
837 P.2d 853, 855 (1992). The paramount objective of attorney
disciplinary proceedings is "to protect the public from persons unfit to
serve as attorneys and to maintain public confidence in the bar as a
whole." State Bar of Nev. v. Claiborne, 104 Nev. 115, 129, 756 P.2d 464,
473 (1988). In determining the proper disciplinary sanction, we consider
four factors: (1) the duty violated, (2) the lawyer's mental state, (3) the
potential or actual injury caused by the lawyer's misconduct, and (4) the
existence of aggravating or mitigating circumstances. In re Discipline of
Lerner, 124 Nev. 1232, 1246, 197 P.3d 1067, 1077 (2008).
5
The panel's findings are supported by clear and convincing evidence
We conclude that the panel's findings are supported by clear
and convincing evidence. Serota concedes that he violated RPC 1.15,
which requires a lawyer, among other things, to safekeep clients' property
in the lawyer's possession. Serota's client turned over money to him that
was to be paid to the SEC to satisfy a judgment against the client, but
instead of safeguarding those funds, Serota misappropriated them for his
own purposes. He therefore failed in his duties to safekeep his client's
property. Serota also concedes that he violated RPC 8.4(c), which states
that it is professional misconduct for a lawyer to engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation. In addition to
misappropriating the client's funds for his own purposes, Serota allowed
the client to sign the consent to entry of judgment despite knowing that he
had already misappropriated the money intended to satisfy the judgment.
He therefore engaged in conduct involving dishonesty, fraud, deceit, or
misrepresentation. We conclude that clear and convincing evidence
supports the panel's findings that Serota violated RPC 1.15 and 8.4. 3
Disbarment is the appropriate discipline
We further conclude that, considering the four Lerner factors,
disbarment is the appropriate disciplinary sanction in this case. Serota's
conduct in this matter violated duties to his client, the profession, and the
3 Because clear and convincing evidence supports the panel's findings
regarding these rules of professional conduct, we need not consider the
parties' remaining arguments regarding RPC 3.4 (fairness to opposing
party and counsel) or subsection (d) of RPC 8.4 (conduct prejudicial to the
administration of justice).
6
public. We conclude that his conduct was intentional and caused actual
injury to his client. The egregiousness of his actions alone justifies
disbarment. See generally American Bar Association Standards for
Imposing Lawyer Sanctions, Compendium of Professional Responsibility
Rules and Standards, at 455 (2013 ed.) (disbarment is generally
appropriate when a lawyer knowingly converts client property causing
injury or potential injury).
The presence of aggravating circumstances further supports
this conclusion. See SCR 102.5(1) (listing examples illustrative of
aggravating circumstances). One such circumstance is that Serota has a
prior disciplinary offense. 4 SCR 102.5(1)(a). In addition, we agree with
the state bar that his conduct evinces a dishonest or selfish motive. SCR
102.5(1)(b). Furthermore, there was a pattern of misconduct where, prior
to each misappropriation, Serota accepted several payments from the
client beforehand, and hid his misconduct afterwards until its discovery
was imminent. SCR 102.5(1)(c). Finally, Serota concedes that he
committed multiple offenses. SCR 102.5(1)(d). Even assuming arguendo
that Serota's conduct did not by itself warrant disbarment, the presence of
these aggravating circumstances would justify an increase in the degree of
discipline to be imposed. See SCR 102.5(1) (aggravating circumstances are
"any considerations or factors that may justify an increase in the degree of
discipline to be imposed").
4 0nAugust 18, 2008, Serota received a letter of reprimand for
violating RPC 1.1 (competence), RPC 3.1 (meritorious claims and
contentions), and RPC 5.5 (unauthorized practice of law).
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We further conclude that, although there are some mitigating
circumstances present in this case, they do not justify a reduction in the
degree of discipline to be imposed. See SCR 102.5(2) (listing examples
illustrative of mitigating circumstances). To begin, Serota's contention
that there is an absence of a dishonest or selfish motive is belied by his
conduct. SCR 102.5(2)(b). In addition, though his medical condition may
have contributed to personal or emotional problems, we conclude that
these mitigating circumstances are insufficient to warrant a reduction in
discipline in light of the egregiousness of his misconduct. SCR 102.5(2)(c),
(h). We further conclude that his claimed mental disabilities are largely
uncorroborated and, in any event, he failed to establish a causal
connection between them and his misconduct. SCR 102.5(2)(i)(2).
Although he was cooperative and self-reported, SCR 102.5(2)(e), discovery
of his misconduct was imminent, and thus this does not warrant a
reduction in discipline. We conclude that Serota's claimed rehabilitation
is not supported by the record. SCR 102.5(2)(k). We further conclude that
he failed to demonstrate genuine remorse; instead, on appeal he attempts
to blame the victim. SCR 102.5(2)(m). Finally, his claims of having done
pro bono and other work to benefit the profession and the community are
largely unsubstantiated, and even if established would not warrant a
reduction in discipline in light of the seriousness of his misconduct. SCR
102.5(2). Under the circumstances presented here, we conclude that
disbarment is the only viable option. We agree with the panel's
recommendation in Docket No. 57960 that Serota be disbarred from the
practice of law in Nevada.
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In light of this disposition, we conclude that the other bar
matters pending before us regarding Serota have been rendered moot.
Personhood Nev. v. Bristol, 126 Nev. 245 P.3d 572, 574 (2010)
(court's duty is not to render advisory opinions but to resolve actual
controversies by an enforceable judgment); NCAA v. Univ. of Nev., 97 Nev.
56, 57, 624 P.2d 10, 10 (1981) (duty of judicial tribunal is to decide actual
controversies by a judgment that can be carried into effect, not to give
opinions on moot questions or abstract propositions or to declare principles
of law that cannot affect the matter at issue). We therefore deny as moot
the State Bar's petition in Docket No. 59551 regarding Serota's felony
conviction. Likewise, we deny as moot Serota's petition in Docket No.
60719 for dissolution of our order temporarily suspending him from the
practice of law.
CONCLUSION
We conclude that clear and convincing evidence supports the
panel's findings that Serota failed to safekeep his client's property, a
violation of RPC 1.15, and that he engaged in misconduct, a violation of
RPC 8.4. Moreover, the egregiousness of misappropriating $319,000 in
client funds warrants disbarment. The presence of aggravating
circumstances provides further support for the conclusion that disbarment
is the only appropriate discipline in this case. In light of our conclusion
that disbarment is the appropriate disciplinary sanction, bar counsel's
petition regarding Serota's felony conviction, and Serota's petition for
dissolution of our order temporarily suspending him from the practice of
law, are denied as moot.
9
Accordingly, Serota is hereby disbarred from the practice of
law in Nevada. 5 If he has not already done so, Serota shall pay the costs
of the disciplinary proceedings in the amount of $2,142.75 within 30 days
5 Serota's motion to set aside the recommendation of disbarment by
the board, filed July 7, 2011, in Docket No. 57960 is denied. The State
Bar's motion to strike or, in the alternative, opposition to Serota's motion
to set aside the recommendation of disbarment by the board, filed July 20,
2011, in Docket No. 57960 is therefore denied as moot.
Serota has communicated to this court by way of several letters
addressed to the clerk of the court. He is admonished that any request for
relief from this court must be presented by way of a formal, written
motion, not by way of a letter addressed to the clerk of the court. Weddell
v. Stewart, 127 Nev. , n.8, 261 P.3d 1080, 1085 n.8 (2011). In
addition, Serota's briefs in Docket No. 57960 contain numerous factual
assertions not supported by references to the record and references to facts
that are outside the record altogether. This is improper, and we disregard
such references. See NRAP 28(e)(1); SCR 105(3)(b); Carson Ready Mix,
Inc. v. First Nat'l Bank of Nev., 97 Nev. 474, 476, 635 P.2d 276, 277 (1981).
In addition, Serota has improperly attempted to supplement the record in
Docket No. 57960 with exhibits not before the disciplinary panel, which we
cannot consider. See NRAP 10; NRAP 30(b); SCR 105(3)(b); State, Dep't of
Taxation v. Kelly-Ryan, Inc., 110 Nev. 276, 282, 871 P.2d 331, 336 (1994).
We direct the clerk of this court to return, unfiled, the document entitled
"Appellant's Exhibit Supplement to Reply Brief," provisionally received on
October 19, 2011, in Docket No. 57960; we further direct the clerk of this
court to strike Exhibits 1-6 from "Appellant's Reply Brief" filed October 21,
2011, in Docket No. 57960.
Finally, on August 4, 2011, Serota filed an opposition to the State
Bar's motion to extend the time in which to file the answering brief in
Docket No. 57960. At the time the opposition was filed, the extension of
time had already been granted; however, it would appear that the
documents may have crossed in the mail. Under these unique
circumstances, we elect to treat Serota's opposition as a motion for
reconsideration of our order granting the requested extension of time, and
we deny it. See NRAP 31(b)(3)(B); SCR 105(3)(b).
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<1 >
from the date of this order. If they have not already done so, Serota and
the state bar shall comply with SCR 115 and SCR 121.1.
C.J.
Gibbons
J.
Hardesty
Parraguirre
Douglas
Saitta
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