IN RE: DISCIPLINE OF CHRISTOPHER R. ARABIA , 2021 NV 59 ( 2021 )

137 Nev., Advance Opinion 51
IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF DISCIPLINE OF No. 82173
CHRISTOPHER R. ARABIA, BAR NO.
9749. Fi E 3
Automatic review of a disciplinary board hearing panel's
recommendation for attorney discipline.
Attorney publicly reprimanded.
Pitaro & Fumo, Chtd., and Thomas F. Pitaro and Emily K. Strand, Las
Vegas,
for attorney Cluistopher R. Arabia.
Daniel M. Hooge, Bar Counsel, Las Vegas, and R. Kait Flocchini, Assistant
Bar Counsel, Reno,
for State Bar of Nevada.
BEFORE THE SUPREME COURT, CADISH, PICKERING, and
HERNDON, JJ.
OPINION
By the Court, HERNDON, J.:
Attorneys who practice law in Nevada are "subject to the
exclusive disciplinary jurisdiction of the supreme court and the disciplinary
boards and hearing panels created by [the Supreme Court Rules]." SCR
99(1). In this attorney discipline case, we are asked to make an exception
for attorneys who hold public office either because they are entitled to
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qualified immunity or because they are subject exclusively to the
jurisdiction of the Commission on Ethics for misconduct committed while in
office. We reject both arguments. When an attorney is elected to public
office and then violates the Rules of Professional Conduct, the attorney's
position as an elected official does not entitle the attorney to qualified
immunity from professional discipline. Further, the Commission on Ethics'
authority over public officers is not exclusive. Therefore, an attorney who
engages in professional misconduct while in public office remains subject to
the disciplinary jurisdiction of this court and the disciplinary boards and
hearing panels created under the Supreme Court Rules regardless of
whether the misconduct also falls within the Commission on Ethics'
jurisdiction. Because the State Bar proved by clear and convincing evidence
that attorney Christopher Arabia violated two rules of professional conduct
and a public reprimand sufficiently serves the purpose of attorney discipline
under the circumstances, we adopt the hearing panel's recommendation and
reprimand Arabia for violations of RPC 1.7 (conflict of interest: current
clients) and RPC 8.4(d) (misconduct prejudicial to the administration of
justice).1
FACTS
Arabia has been licensed to practice law in Nevada since 2006
and has no prior discipline. He is currently the duly elected Nye County
District Attorney.
On September 15, 2019, Arabia terminated Michael Vieta-
Kabell's employment as an assistant district attorney. Vieta-Kabell
maintained that he was terminated because he had been attempting to
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted.
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unionize assistant district attorneys, but Arabia asserts the termination
was the result of Vieta-Kabell's job performance.
Vieta-Kabell filed an appeal of his termination with Nye County
on September 23, 2019. The Human Resources Director for Nye County,
Danelle Shamrell, sent both Vieta-Kabell and Arabia an email on
September 24, scheduling the appeal for a hearing. That same day, Arabia
sent an email to Shamrell, but not Vieta-Kabell, stating, "[i]t is my legal
opinion as the Nye County District Attorney that you must cease and desist
from conducting the proposed hearing." Arabia's email asserted that
because Vieta-Kabell was an at-will employee, Arabia had the right to
terminate Vieta-Kabell at any time, and thus, an appeal hearing was not
available to Vieta-Kabell. Arabia ended the email by stating, "[p]lease
confirm via e-mail no later than 4:00 p.m. on Thursday, September 26, 2019
that you have vacated the proposed hearing regarding Mr. Vieta-Kabell."
At the subsequent disciplinary hearing, Shamrell testified that "[t] he DA's
Office provides legal advice to the County, and he told me to cancel it. And
so, based on the fact that hes who he is, the DA, I did what I was told to
do." Thus, the next day, on September 25, Shamrell emailed Vieta-Kabell
stating, "[b]ased on direction from Chris Arabia, Nye County District
Attorney I have been instructed to cease and desist from conducting the
requested hearing and as such there will not be the hearing."
Vieta-Kabell filed a grievance against Arabia with the State
Bar. Arabia responded to the grievance stating he "was not acting as the
County's counsel with respect to this matter and therefore provided no
advice or counsel." Arabia further asserted that "[Ole County had Attorney
[Rebecca] Bruch representing it and decided to cancel the hearing."
However, Arabia later provided emails demonstrating that Bruch was not
retained until the morning of September 25, after he had sent the email
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requesting the hearing be canceled. Additionally, Bruch testified that when
she was retained by Nye County, her scope of representation did not include
whether there should be a County hearing, and instead, related to an
Employee Management Relations Board claim filed by Vieta-Kabell.
Before the disciplinary hearing, Arabia moved to dismiss the
bar complaint twice, the first time because he asserted he was protected
under qualified immunity, and the second time because he argued the State
Bar lacked jurisdiction over him as an elected official. Arabia's motions
were denied.
At the hearing, Arabia testified that he did not direct the
hearing to be vacated and that "it was a request." In contrast to his letter
responding to the grievance, he testified that he did not wait for Bruch to
become involved because he did not think that the hearing would even
trigger her involvement. He acknowledged that if terminating Vieta-
Kabell's employment "was wrong, then I'm going to take the hit on that. I
get that. I'm talking about me as the District Attorney." Arabia, however,
also stated that telling the County not to hold the hearing was the right and
proper thing to do.
The hearing panel found in a 2-1 vote that Arabia violated RPC
1.7 (conflict of interest: current clients) and RPC 8.4(d) (misconduct
prejudicial to the administration of justice), but unanimously found that his
conduct was negligent, rather than knowing or intentional. The panel found
two aggravating circumstances (substantial experience in the practice of
law and failure to accept wrongfulness of the conduct) and one mitigating
circumstance (lack of prior discipline). The panel has recommended Arabia
be reprimanded and ordered to pay the costs of the disciplinary proceeding.
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DISCUSSION
Before we consider the hearing panel's findings and the
appropriate discipline, we must address Arabia's arguments that this
matter should be dismissed because he has qualified immunity and the
State Bar lacked jurisdiction over him.2
Qualified immunity does not apply to attorney disciplinary proceedings
Arabia contends that he cannot be professionally disciplined
because his actions are entitled to protection under the qualified immunity
doctrine, and thus, this matter must be dismissed. We disagree.
The qualified immunity doctrine "provides that government
actors following statutory guidelines or exercising their discretion are
immune from common law tort actions in connection with their statutory
duties or their discretion." City of Boulder City v. Boulder Excavating, Inc.,
124 Nev. 749, 756, 191 P.3d 1175, 1179 (2008). NRS 41.032(2) provides in
relevant part that "no action may be brought . . . against an . . . officer or
employee of the State . . . which is . . . ased upon the exercise or
2Arabia also contends the State Bar should have been disqualified
from pursuing the underlying disciplinary complaint because Vieta-Kabell
worked for the State Bar when he filed the grievance and because the State
Bar has employed two other attorneys Arabia fired from the Nye County
District Attorney's Office. While Vieta-Kabell filed the underlying
grievance during his State Bar employment, his employment lasted just
one-and-a-half months, and because Arabia did not respond to the grievance
until after Vieta-Kabell left the State Bar, Vieta-Kabell was not employed
by the State Bar during the majority of the investigation or disciplinary
proceedings. The record further demonstrates that the two former Nye
County Deputy District Attorneys who worked at the State Bar were
properly screened from this matter. Additionally, in an abundance of
caution, this matter was handled by bar counsel in the Northern Nevada
office, when it would normally be assigned to the Southern Nevada office.
Thus, we conclude there was no conflict of interest requiring the State Bar's
disqualification.
5
performance or the failure to exercise or perform a discretionary function or
duty." The first step to determining whether qualified immunity is
available to Arabia is to determine if an attorney discipline proceeding
qualifies as an "action" under NRS 41.032.
As discussed in Boulder City, qualified immunity generally
applies in actions where the plaintiff seeks damages or redress for the
government employee's actions. 124 Nev. at 756, 191 P.3d at 1179. An
attorney discipline proceeding is not such an action. The purpose of an
attorney discipline proceeding is to protect the public, the courts, and the
legal profession, not to make the grievant whole or punish the attorney.
State Bar of Nev. v. Claiborne, 104 Nev. 115, 213, 756 P.2d 464, 527-28
(1988). Therefore, even though disciplinary proceedings are generally
treated as civil actions, see SCR 119(3) (providing that "[e]xcept as
otherwise provided in these rules, the Nevada Rules of Civil Procedure and
the Nevada Rules of Appellate Procedure apply in disciplinary cases"), they
are not the type of common law actions to which qualified immunity
generally applies.
The conclusion that qualified immunity does not extend to an
attorney discipline proceeding finds support in cases where courts have
determined that a prosecutor enjoyed qualified immunity from civil
liability. In particular, courts often point to the availability of professional
discipline as a counterbalance that offers a means to deter misconduct when
qualified immunity otherwise protects a prosecutor from civil liability. For
example, the United States Supreme Court has explained that a
prosecutor's immunity from liability in Section 1983 suits "does not leave
the public powerless to deter misconduct" because a prosecutor is subject
"to professional discipline by an association of his peers." Imbler v.
Pachtrnan, 424 U.S. 409, 428-29 (1976). Similarly, a few of our sister states
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have recognized that where a civil action must be dismissed because of
qualified immunity or litigation privilege, the attorney may still be subject
to professional discipline. See, e.g., Silberg v. Anderson, 786 P.2d 365, 373-
74 (Cal. 1990) (recognizing that although a tort action based on
communications between participants in earlier litigation is precluded
under immunity or privilege principles, an attorney may nevertheless be
subject to discipline for such a communication); Wright v. Yurko, 446 So. 2d
1162, 1164 (Fla. Dist. Ct. App. 1984) (providing that there can be no civil
action for slanderous statements made during the course of an action and
the remedies for such slander "are left to the discipline of the courts, the bar
association, and the state); Hawkins v. Harris, 661 A.2d 284, 288 (N.J.
1995) ("Although the public policy served by the absolute privilege
immunizes the defamer from a civil damage action, the privilege does not
protect against professional discipline for an attorney's unethical conduct.");
Kirschstein v. Haynes, 788 P.2d 941, 950 (Okla. 1990) (recognizing that the
litigation privilege may apply to protect statements made by an attorney
from tort liability, but such privilege does not protect against professional
discipline if those statements are also unethical conduct), superseded by rule
on other grounds as stated in Dani v. Miller, 374 P.3d 779, 785 n.1 (Okla.
2016); see also Casey L. Jernigan, The Absolute Privilege Is Not a License to
Defame, 23 J. Legal Prof. 359, 365-70 (1999); Judith Kilpatrick, Regulating
the Litigation Immunity: New Power and a Breath of Fresh Air for the
Attorney Discipline System, 24 Ariz. St. L. J. 1069, 1081 (1992).
Because attorney disciplinary proceedings are a mechanism for
deterring professional misconduct and protecting the public, the courts, and
the legal profession, we conclude a disciplinary proceeding is not the type of
action to which NRS 41.032 applies. Therefore, an attorney who is a public
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officer or employee cannot rely on qualified immunity to escape professional
discipline.
The State Bar had jurisdiction over the underlying grievance against Arabia
Arabia next contends the State Bar lacked jurisdiction over him
because only the Commission on Ethics can bring a disciplinary complaint
against him for conduct undertaken as a public officer.3 We disagree
because the Commission's jurisdiction over public officers is not exclusive.
The Legislature passed the Nevada Ethics in Government Law,
NRS Chapter 281A, to promote the integrity and impartiality of public
officers. See NRS 281A.020 (stating legislative findings and declarations);
1977 Nev. Stat., ch. 528, § 3, at 1103 (noting the passing of the law). In
doing so, the Legislature created the Commission on Ethics and authorized
it to issue advisory opinions and resolve ethics complaints against public
officers. NRS 281A.680; NRS 281A.710; NRS 281A.765. "[T]he Commission
has jurisdiction to investigate and take appropriate action regarding an
alleged violation of [NRS Chapter 281A1 by a public officer" when an ethics
complaint has been filed with or initiated by the Commission. NRS
281A.280(1).
When interpreting a statute, we focus on its plain language.
City of Sparks v. Reno Newspapers, Inc., 133 Nev. 398, 402, 399 P.3d 352,
356 (2017) ("When interpreting a statute, if the statutory language is
facially clear, this court must give that language its plain meaning."
3Arabia acknowledged in his reply brief that the State Bar and the
Commission on Ethics could have dual jurisdiction except where qualified
immunity is at issue. To the extent Arabia still challenges the State Bar's
jurisdiction despite our conclusion regarding qualified immunity, we
address that jurisdictional argument herein.
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(internal quotation marks omitted)). Nothing in NRS 281A.280(1) or
elsewhere in NRS Chapter 281A states that the Commission's jurisdiction
is exclusive.4 In contrast, the Legislature has used explicit language
elsewhere when it intends to grant exclusive jurisdiction. For example,
NRS 1.440(1) provides that the Commission on_ Judicial Discipline "has
exclusive jurisdiction" to discipline judges. See also NRS 3.223(1) (affording
the family court "original, exclusive jurisdiction" over certain identified
proceedings); NRS 7.275(1) (providing that the State Bar of Nevada is
"under the exclusive jurisdiction" of the Nevada Supreme Court); NRS
32.255 (providing that the court that appoints a receiver "has exclusive
jurisdiction to direct the receiver and determine any controversy related to
the receivership or receivership property"); NRS 62B.320(1) (providing that
"the juvenile court has exclusive original jurisdiction" over certain
proceedings involving a child in need of supervision).
Similarly, nothing in the Supreme Court Rules suggests that
the normal disciplinary authority over attorneys practicing law in Nevada
is limited when the attorney involved is an elected official. The State Bar
is authorized to investigate and prosecute all possible attorney misconduct.
SCR 104(1)(a), (c) (providing "State Bar counsel shall . . . [i]nvestigate all
matters involving possible attorney misconduct" and "[p]rosecute all
proceedings under these rules"). SCR 99(1) provides that "[E]very attorney
admitted to practice law in Nevada . . . is subject to the exclusive
4 In fact, NRS 281A.280(2) recognizes that the Commission on Ethics'
jurisdiction is not exclusive when the grievance concerns an employment
issue. See NRS 281A.280(2) (providing dual jurisdiction when an
employment-related grievance pertains to alleged discrimination or
harassment but also includes separately or concurrently alleged conduct
that is sanctionable under NRS Chapter 281A).
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disciplinary jurisdiction of the supreme court and the disciplinary boards
and hearing panels created by these rules." (Emphasis added.)
Accordingly, the State Bar has jurisdiction to pursue attorney discipline
against any attorney practicing law in Nevada, regardless of whether the
attorney is an elected official.
The scope of the Commission's jurisdiction further indicates
that its jurisdiction is not exclusive when it comes to public officers who are
attorneys. Specifically, the Commission only has jurisdiction over alleged
violations of the ethics standards set forth in NRS Chapter 281A. Those
standards are not coextensive with the Rules of Professional Conduct that
establish ethical guidelines for attorneys practicing law in this state. For
example, RPC 3.8(f) lays out special responsibilities for prosecutors,
including not "making extrajudicial comments that have a substantial
likelihood of heightening public condemnation of the accused." There is no
similar provision in the ethical standards set forth in NRS 281A.400-.550.
Thus, if the Commission had exclusive jurisdiction over an elected district
attorney, there would be no means to deter a prosecutor or protect the public
and the profession when a prosecutor engaged in misconduct that clearly
violates the Rules of Professional Conduct but does not also implicate the
ethics standards set forth in NRS Chapter 281A. That absurd result further
convinces us that an attorney's election to public office does not deprive the
State Bar of its authority to initiate disciplinary proceedings against that
attorney for a violation of the Rules of Professional Conduct.
Because nothing in NRS Chapter 281A provides the
Commission on Ethics with exclusive jurisdiction and the attorney
discipline system serves a different purpose than the Ethics in Government
Law codified in NRS Chapter 281A, we conclude the State Bar could proceed
with disciplinary proceedings against Arabia regardless of whether his
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conduct also fell within the Commission on Ethics jurisdiction. If an
attorney who is subject to NRS Chapter 281A violates the Rules of
Professional Conduct and the ethics standards in NRS Chapter 281A, the
State Bar disciplinary process would address the violation of the Rules of
Professional Conduct and the Commission on Ethics would address the NRS
Chapter 281A violation. Any discipline imposed by the Commission on
Ethics could be considered in the State Bar disciplinary process. See SCR
102.5(2)(1) (providing that "imposition of other penalties or sanctions"
qualify as mitigating circumstances in disciplinary proceedings).
Accordingly, the Disciplinary Panel Chairman did not err by denying
Arabia's motion to dismiss for lack of jurisdiction on this ground.
Substantial evidence supports the panel's findings of misconduct
As to the merits of the complaint, Arabia argues the State Bar
failed to prove the allegations by clear and convincing evidence because
(1) he had no personal stake in the outcome of the County hearing so he had
no conflict of interest, and (2) he did not exert control over County
employees to have the hearing vacated. We disagree.
The State Bar has the burden of showing by clear and
convincing evidence that Arabia committed the violations charged. In re
Discipline of Drakulich, 111 Nev. 1556, 1566, 908 P.2d 709, 715 (1995). To
be clear and convincing, evidence "need not possess such a degree of force
as to be irresistible, but there must be evidence of tangible facts from which
a legitimate inference . . . may be drawn." In re Discipline of Schaefer, 117
Nev. 496, 515, 25 P.3d 191, 204 (internal quotation marks omitted), as
modified by 31 P.3d 365 (2001). Our review of the panel's findings of fact is
deferential, SCR 105(3)(b), and we will uphold the factual findings
regarding an attorney's misconduct if they "are not clearly erroneous and
are supported by substantial evidence," Sowers v. Forest Hills Subdiv., 129
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Nev. 99, 105, 294 P.3d 427, 432 (2013) (explaining deferential standard of
review in civil actions).
Arabia violated RPC 1.7
RPC 1.7(a) precludes a lawyer from representing "a client if the
representation involves a concurrent conflict of interest." A concurrent
conflict of interest may exist if "[t]here is a significant risk that the
representation of one or more clients will be materially limited . . . by a
personal interest of the lawyer." RPC 1.7(a)(2). If a lawyer believes he or
she may still provide competent and diligent representation in spite of the
concurrent conflict of interest, the lawyer may still represent the client if,
among other requirements, lelach affected client gives informed consent,
confirmed in writing." RPC 1.7(b)(4).
The impetus of the conflict of interest rule is to ensure "Woyalty
and independent judgment], which] are essential elements in the lawyer's
relationship to a client." Model Rules of Proll Conduct r. 1.7 cmt. 1 (Am.
Bar Ass'n 2016). Thus, a "lawyer's own interests should not be permitted
to have an adverse effect on representation of a client." Id. at cmt. 10. "For
example, if the probity of a lawyer's own conduct in a transaction is in
serious question, it may be difficult or impossible for the lawyer to give a
client detached advice," Id. "The primary rationale behind the general rule
on adverse personal interests is simple: When theres friction between the
interests of a lawyer and a client, the lawyer's loyalties are divided or
confused and her effectiveness is diminished." Lawyers Manual on
Professional Conduct: Practice Guides, 51 Conflicts of Interest 401,
401.20.50 (Am. Bar Ass'n & Bureau of Nat'l Affairs, Inc. 2021). In
particular, when a client's interests are inconsistent with the lawyer's
personal interests, the lawyer "may be tempted to recommend courses of
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action that benefit the lawyer more than the client, or may be inclined to
avoid choices that could damage or impair [the lawyer's) own interests." Id.Personal interests that may impair a lawyer's representation of
a client include "the financial, business, property, professional or personal
aspects of the lawyer's life." Id. at 401.10. While the most obvious examples
involve the lawyer's financial or familial relationships, not all personal
conflicts fall into these areas. Restatement (Third) of the Law Governing
Lawyers § 125 cmt. c (Am. Law Inst. 2000). "Clients interests also clash
sometimes with their attorneys' own interests in their professional
reputations and affiliations." 51 Conflicts of Interest at 401.20.190. Thus,
a lawyer's political, social, professional, or emotional interests or beliefs
may lead the lawyer to act in the lawyer's own self-interest or in others'
interests, rather than in their clienes best interest. Bruce A. Green &
Rebecca Roiphe, Rethinking Prosecutors' Conflicts of Interest, 58 B.C. L.
Rev. 463, 472 (2017). Accordingly, determining if a lawyer's personal
interests create a concurrent conflict with a client depends on the facts and
circumstances of each case.
Considering the facts and circumstances here, substantial
evidence supports the panel's finding that Arabia had a concurrent conflict
of interest because he had a personal interest in ensuring Nye County
vacated Vieta-Kabell's termination appeal hearing. First, it was in Arabia's
interest to have the appeal hearing not only vacated, but vacated quickly.
Arabia sent his cease-and-desist email almost immediately after the
hearing was scheduled. He acknowledged• at the disciplinary hearing that
he knew it was common practice for the County to retain independent
counsel in similar circumstances and generally that counsel was retained
quickly. Thus, the record supports that he knew it would be in his best
interest to immediately send a strongly worded email to the County's
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human resources director stating his legal opinion that she must vacate the
hearing. Second, Arabia had a professional interest in ensuring the hearing
was vacated. It is clear from the record that Arabia did not want to be forced
to rehire Vieta-Kabell. Further, Vieta-Kabell's grievance complains that he
was terminated primarily because he was attempting to unionize the
deputy district attorneys in the office, and if such a complaint were
addressed at the appeal hearing, a significant conflict-of-interest risk
emerges based on Arabia's interest in maintaining his professional
reputation. Arabia even acknowledged he had a professional interest at the
disciplinary hearing by stating that he would "take the hit" if terminating
Vieta-Kabell had been wrong.
In a case addressing similar conflict-of-interest concerns, the
New Jersey Supreme Court determined that even though the Legislature
permitted the same person to hold two municipal offices, an attorney could
not serve as both the municipal attorney and the clerk-administrator for the
saine municipality because such service would present concurrent conflicts
of interest based on the attorney's own professional interests. In re Advisory
Comm. on Prop Ethics, Docket No. 18-98, 745 A.2d 497, 502 (N.J. 2000). In
reaching that decision, the court reasoned that there would likely come a
time when the municipal attorney would have to give the municipal body—
the mayor and council—advice concerning his own conduct as clerk-
administrator. Id. For example, the court noted there may come a time
when the clerk-administrator's decision in an employment matter is
challenged and the municipal body would need access to independent
counsel and advice from the municipal attorney concerning whether the
employment decision was proper. Id.To the extent Arabia argues the County had independent
counsel appointed to represent it in this matter, the record demonstrates
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that the County did not contact Bruch until after Arabia sent his cease-and-
desist email, and even then the County contacted Bruch about a different
matter.5 Additionally, the panel's finding that Arabia's email qualified as
legal advice is supported by substantial evidence. While the dissent asserts
that Arabia testified he was acting in his executive capacity, the record does
not support this assertion as Arabia never provided testimony regarding his
"executive capacity." Additionally, in the email itself, Arabia wrote, "It is
my legal opinion as the Nye County District Attorney . . . ." (Emphasis
added.) Further, Shamrell testified that she regularly received legal advice
on County matters from Arabia, and nothing in the email indicated this
instance was different from any other time Arabia provided such advice.
Therefore, the record supports the panel's conclusion that Arabia sent his
cease-and-desist email as part of his representation of the County. Because
there was a significant risk that Arabia's representation of the County
would be materially limited by his personal interest in having the appeal
hearing vacated, Arabia had a duty to disclose the conflict of interest to the
County and obtain a written waiver before advising the County on whether
the appeal hearing was appropriate, which he did not do here. Accordingly,
substantial evidence supports the panel's finding that Arabia violated RPC
1.7 (conflict of interest: current clients).6
5The dissent overstates the scope of Bruch's representation and the
impact it had on the County's decision to vacate the hearing. Bruch testified
that she was not retained in relation to this hearing.
6Whi1e the dissent concludes that the record does not support the
panel's finding that Arabia violated RPC 1.7(a)(2) because there was not
substantial evidence that Arabia had a disabling personal interest that
caused harm to his representation of Nye County, the dissent misstates the
rule. RPC 1.7(a)(2) provides that a concurrent conflict of interest may exist
if "Where is a significant risk that the representation of one or more clients
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Arabia violated RPC 8.4(d)
RPC 8.4(d) provides lilt is professional misconduct for a lawyer
to . . . fe]ngage in conduct that is prejudicial to the administration of
justice." "For purposes of this rule, prejudice requires either repeated
conduct causing some harm to the administration of justice or a single act
causing substantial harm to the administration of justice." In re Discipline
of Colin, 135 Nev. 325, 332, 448 P.3d 556, 562 (2019) (internal quotation
marks omitted). RPC 8.4(d) addresses conduct that "is intended to or does
disrupt a tribunal." Id. The rule applies to conduct occurring inside or
outside of a courtroom and because other adjudicatory bodies, such as
administrative tribunals, may administer justice, RPC 8.4(d) applies to an
attorney's conduct in relation to an administrative proceeding. See id.; RPC
1.0(m) ("Tribunal denotes a court, an arbitrator in a binding arbitration
proceeding or a legislative body, administrative agency or other body acting
in an adjudicative capacity. A legislative body, administrative agency or
other body acts in an adjudicative capacity when a neutral official, after the
presentation of evidence or legal argument by a party or parties, will render
a binding legal judgment directly affecting a party's interests in a particular
matter.")7
The record demonstrates that Sharnrell canceled the hearing
based solely on Arabia's cease-and-desist email. Arabia's conduct not only
will be materially limited . . . by a personal interest of the lawyer."
(emphasis added).
7While we reference the definition of "tribunal" under RPC 1.0(m) as
part of our discussion of Arabia's violation of RPC 8.4(d), we note that
Arabia has not challenged whether the instant proceedings met the
definition of "tribunal."
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disrupted an administrative tribunal, but prohibited the administrative
proceeding from ever occurring.8 Thus, substantial evidence supports the
panel's finding that Arabia's conduct violated RPC 8.4(d) (misconduct
prejudicial to the administration of justice).
A reprimand is appropriate
In determining the appropriate discipline, this court weighs
four factors: "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). Although this court determines the
appropriate discipline de novo, SCR 105(3)(b), the hearing panel's
recommendation is persuasive, Discipline of Schaefer, 117 Nev. at 515, 25
P.3d at 204.9
8Ifthe hearing had been improper as Arabia alleged, that would have
been determined in due course, instead of the hearing being canceled on the
advice of someone who had a personal interest in the hearing never
occurring. We note even the dissent acknowledges that the issue of whether
the hearing was proper should not have been resolved on such short notice.
If Arabia had not expedited his cease-and-desist demand, Nye County
would have had a matter of weeks to determine whether it should conduct
the hearing.
Nevertheless, the issue presented here is not whether Arabia gave
correct advice, but whether he should have given the advice at all based on
a conflict of interest, without a written waiver. Because this matter
concerns Arabia's ethical violations and does not concern whether the
hearing was proper, we do not reach that issue.
9Arabia focused his arguments on whether he committed misconduct
and did not present any argument regarding what would be appropriate
discipline for such misconduct.
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Arabia violated duties owed to his client (conflict of interest)
and the profession (misconduct). Nye County was potentially injured, and
Arabia interfered with an administrative proceeding.1° The record supports
the panel's finding that Arabia's violations were negligent. The baseline
sanction for Arabia's conduct, before consideration of aggravating and
mitigating circumstances, is reprimand. See Compendium of Professional
Responsibility Rules and Standards: Standards for Imposing Lawyer
Sanctions, Standard 6.23 (Am. Bar Ass'n 2017) (explaining that reprimand
is appropriate when a lawyer negligently fails to comply with a rule "and
causes injury or potential injury to a client or other party, or causes
interference or potential interference with a legal proceeding"). The record
supports the two aggravating circumstances (substantial experience in the
practice of law and failure to accept the conduct was wrong) and the single
mitigating circumstance (lack of prior discipline). Considering all four
factors, we conclude the panel's recommended reprimand serves the
purpose of attorney discipline. State Bar of Nev. v. Claiborne, 104 Nev. 115,
10We disagree with the dissent's conclusion that interference with an
administrative proceeding based on an attorney's own personal interest can
cause no harm to the client. While the dissent argues that Nye County's
position in other proceedings regarding the termination of Vieta-Kabell
could have been hindered by the internal, administrative proceeding, the
dissent overlooks the County's interest in ensuring its own internal policies
and procedures are followed.
Further, while the dissent disagrees with the imposition of a
reprimand because the dissent concludes the County was not harmed, the
ABA Standards only require a potential injury to the client to warrant a
reprimand. Compendium of Professional Responsibility Rules and
Standards: Standards for Imposing Lawyer Sanctions, Standard 6.23 (Am.
Bar Ass'n 2017).
18
213, 756 P.2d 464, 527-28 (1998) (recognizing that the purpose of attorney
discipline is to protect the public, courts, and the legal profession).
CONCLUSION
An attorney cannot avoid professional discipline by asserting
qualified immunity. Further, even if an attorney is an elected official, the
State Bar has authority to investigate and prosecute alleged violations of
the Rules of Professional Conduct, and this court, along with the
disciplinary boards and hearing panels, has exclusive jurisdiction to
discipline an attorney when such violations are proven. Because
substantial evidence supports the paners findings that Arabia violated RPC
1.7 and RPC 8.4(d), we conclude a reprimand is appropriate discipline.
Accordingly, we hereby reprimand attorney Christopher R.
Arabia for violating RPC 1.7 (conflict of interest: current clients) and RPC
8.4(d) (misconduct prejudicial to the administration of justice).
Additionally, Arabia must pay the costs of the disciplinary proceeding plus
$1,500 under SCR 120(1) & (3) within 30 days from the date of this opinion.
Herndon
I concur:
Cadish
afiK , J.
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PICKERING, J., concurring in part and dissenting in part:
I join the court in rejecting both Arabia's qualified immunity
claim and his argument that only the Nevada Commission on Ethics can
discipline an elected district attorney. I write separately because I disagree
that the record supports the professional discipline imposed. It takes clear
and convincing evidence to establish a violation of the Nevada Rules of
Professional Conduct (RPC), In re Discipline of Colin, 135 Nev. 325, 329,
448 P.3d 556, 560 (2019), and "the Rules presuppose that disciplinary
assessinent of a lawyer's conduct will be made on the basis of the facts and
circumstances as they existed at the time of the conduct in question and in
recognition of the fact that a lawyer often has to act upon uncertain or
incomplete evidence of the situation." RPC 1.0A(c); see Model Rules of Profl
Conduct, Scope, ¶ 19 (Am. Bar Ass'n 2018).1 Accepting this perspective, I
have difficulty concluding that the email Arabia sent the Nye County
human resources director on September 24, 2019 violated the RPC. At
most, the email amounted to a negligent and isolated violation of RPC 1.7(a)
(prohibiting concurrent conflicts of interest) that did not cause the client
harm. The strongest sanction appropriate for such a violation is an
admonition, not a formal public reprimand.
I.
The events giving rise to the disciplinary charges against
Arabia took place over a few days time. On September 18, 2019, Arabia
terminated a Nye County deputy district attorney. Several days later, on
September 23, the deputy emailed the Nye County human resources
'Nevada drew its RPC from the ABA Model Rules of Professional
Conduct. Although it did not adopt the preamble and comments to the ABA
Model Rules, RPC 1.0A provides that they "may be consulted for guidance
in interpreting and applying" the RPC.
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10) 1947A 290 P.3d 249, 252 n.3 (2012) (lad party may not raise new issues,
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factual and legal, [on appeal] that were not presented to the district court")
(internal quotation marks omitted).
11.
An attorney facing professional discipline has a right to
procedural due process, which includes fair notice of the charges against
him. In re Ruffalo, 390 U.S. 544, 550 (1968). The State Bar charged Arabia
with violating RPC 1.7 and RPC 8.4. To prevail, the State Bar had to prove
by clear and convincing evidence that Arabia committed the violations
charged. In re Discipline of Drakulich, 111 Nev. 1556, 1556, 908 P.2d 709,
715 (1995). Conduct extraneous to the violations charged cannot make up
for the State Bar's failure to prove their elements by clear and convincing
evidence.
A.
The State Bar principally charged Arabia with violating RPC
1.7. This Rule prohibits a lawyer from representing a client if the
representation involves a concurrent conflict of interest:
[A] lawyer shall not represent a client if the
representation involves a concurrent conflict of
interest. A concurrent conflict of interest exists if:
(1) The representation of one client will be
directly adverse to another client; or
(2) There is a significant risk that the
representation of one or more clients will be
materially limited by the lawyer's responsibilities
to another client, a former client or a third person
or by a personal interest of the lawyer.
RPC 1.7(a) (emphases added). This matter does not involve a direct conflict
of interest arising from a lawyer's representation of multiple clients. RPC
1.7(a)(1). Instead, it involves a single client—Nye County—and an
allegation that the lawyer, Arabia, had a "personal interese that posed a
4
"significant risk" of "materially limit[ind" his representation of that client.
RPC 1.7(a)(2).
RPC 1.7(a) distinguishes direct multiple-representation
conflicts from those involving self-interest. The reasons for the distinction
are clear. "When multiple representation exists, the source and
consequences of the ethical problem are straightforward: 'counsel
represents two clients with competing interests and is torn between two
duties. . . . He must fail one or do nothing and fail both.'" Beets v. Scott, 65
F.3d 1258, 1270 (5th Cir. 1995) (quoting Beets u. Collins, 986 F.2d 1478,
1492 (5th Cir. 1993) (Higginbotham, J., concurring), on rehk en banc, 65
F.3d 1258 (1995)). "Conflicts between a lawyer's self-interest and his duty
of loyalty to the client," by contrast, "fall along a wide spectrum of ethical
sensitivity from merely potential danger to outright criminal misdeeds." Id.A "personal interest" potentially creating conflict between the
lawyer and his or her client might arise from any number of sources, not all
of them consequential. A lawyer's emotive state or subjective "feelings"
normally fall outside RPC 1.7(a)(2). See Sands v. Menard, Inc., 787 N.W.2d
384, 405 (Wis. 2010) (Abrahamson, J., dissenting) (4-3) (noting "that the
phrase 'personal interest'" in Wisconsin's analogous rule governing
professional conduct, SCR 20:1.7(a)(2), "refers not to [the lawyer's] own
emotive state or stake, but rather to substantive, material conflicts of
interest"). A "serious question" concerning "the probity of a lawyer's own
conduct," by contrast, or "discussions concerning possible employment with
an opponent of the lawyer's client," "business transactions with clients," or
the instances referenced in RPC 1.8 can create a concurrent conflict of
interest under RPC 1.7(a), depending on circumstances. See Model Rules,
r. 1.7 cmt. 10, discussed in Sands, 787 N.W.2d at 405. "[T]he virtually
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limitless cases in which a 'conflict may theoretically arise" out of a lawyer's
personal interest pose "a very real danger of analyzing these issues not on
fact but on speculation and conjecture." Essex Cty. Jail Annex Inmates v.
Treffinger, 18 F. Supp. 2d 418, 432 (D.N.J. 1998). To guard against this
danger, "when a conflict of interest issue arises based on a lawyer's self-
interest, a sturdier factual predicate must be evident than when a case
concerns multiple representation" of clients whose interests directly
conflict. Id.The disciplinary panel concluded, on a split vote, that Arabia
violated RPC 1.7 "when he opined to the Nye County Human Resources
Director that the requested appeal hearing was improper and demanded
that the hearing be vacated within 48 hours of his demand, without
recognizing the substantial risk that his personal interest in defending
against the appeal could materially limit his ability to fulfill his
responsibilities to his client, Nye County." The majority opinion adds that
Arabia had a personal interest in having the hearing vacated quickly
because the county would soon hire outside counsel and "Arabia did not
want to be forced to rehire the deputy. Maj. op., ante at 14. It also suggests
that Arabia wanted to cancel the hearing to protect his professional
reputation, since a hearing would reveal that Arabia had fired the deputy
for attempting to unionize the Nye County district attorney's office.
These reasons have too much of speculation and conjecture in
them to establish the "sturd[y] factual predicate needed to find a disabling
conflict of interest. Treffinger, 18 F. Supp. 2d at 432. Canceling the
informal hearing would not make the deputy and his wrongful termination
claims go away—and nothing in the record suggests that Arabia irrationally
thought it would. By the time Arabia sent his email, the deputy had hired
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a lawyer. Arabia knew this because the deputy referenced his lawyer in his
response to the human resources director's email setting the hearing date,
on which he copied Arabia. Nye County's retention of insurance defense
counsel followed as a matter of course, before the human resources director
emailed to cancel the hearing. And, as Arabia knew, the deputy had options
besides the review by the county manager, including a "245" hearing
(apparently referring to NRS 245.065) and filing a lawsuit in court. Unlike
the review process, which is informal, both are forms of public hearing. As
such, they carried a greater risk to Arabia of public criticism than the
canceled review hearing did. The court cites Arabia's reference to "tak [ing]
the hit," Maj. op., ante at 14, for the termination decision as evidence of his
disabling personal interest, but that statement did not refer to the informal
review hearing. It came in the context of Arabia's testimony about the 245
hearing the deputy separately sought—a hearing Arabia supported but that
the deputy later decided not to pursue. Arabia's support of the 245 hearing,
his brassy statement that he welcomed a 245 hearing because it would let
him publicly explain his reasons for the termination, and his willingness to
"take the hit" if the 245 hearing panel disagreed with him do not square
with the fear of public criticism on which the court grounds its conflict
analysis. And the possibility the informal review would require Arabia to
reinstate the deputy seems remote, especially if it was not something the
deputy had a legal right to pursue in the first place.
A lawyer's personal interest does not create a disabling conflict
of interest requiring client disclosure and consent or withdrawal unless it
carries a significant risk of materially and adversely affecting the client.
See Model Rules, r. 1.7 cmt. 10 (noting that under Rule 1.7(a)(2), "Mlle
lawyer's own interests should not be permitted to have an adverse effect on
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tCh 1947A allegr.
representation of a cliene); Restatement (Third) of the Law Governing
Lawyers § 121 (Am. Law Inst. 2000) (providing that for a prohibited conflict
of interest to arise, there must be "a substantial risk that the lawyer's
representation of the client would be materially and adversely affected by
the lawyer's own interests"). "Unless there is risk that the lawyer's
representation would be affected 'adversely,'" in other words, "there is no
conflict of interest." Restatement (Third) of the Law Governing Lawyers
121 cmt. c(i). Here, the State Bar does not explain how canceling the
informal hearing materially and adversely affected Nye County (or carried
a "significant risk" of doing so). In fact, the opposite appears true.
Proceeding with the informal hearing would have buttressed the deputy's
position that he could not be terminated except for good cause; this would
hurt the county's probable litigation position that his employment was at
will. The State Bar's effective concession that review by the county
manager was not something the deputy was entitled to as a right further
confirms that Arabia's email demanding that the human resources director
cancel the hearing did not cause the county legal harm.
Arabia had both executive and legal responsibilities to Nye
County. Although he testified that he believed he was acting in his
executive and not his legal capacity in sending the email, the disciplinary
panel and the majority disagree. But see Model Rules of Profl Conduct,
Scope, ¶ 18 (noting that "LuInder various legal provisions, including
constitutional, statutory and common law, the responsibilities of
government lawyers may include authority concerning legal matters that
ordinarily reposes in the client in private client-lawyer relationships" and
providing that "Mese Mules do not abrogate any such authority"); id. at
1.13 cmt. 9 (addressing the difficulties inherent in a lawyer representing a
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governmental entity and noting that "rdiefining precisely the identity of the
client and prescribing the resulting obligations of such lawyers may be more
difficult in the government context and is a matter beyond the scope of these
Rules"). Ideally, the matter of who had authority over the termination
would not have arisen on such short notice, allowing for clarification
without confrontation. See id. at 1.7 cmt. 35 (discussing the challenges and
need for occasional clarification when a lawyer serves an entity as both a
business and a legal adviSer). But with the hearing requested one day and
set the next, to occur just two weeks out, time did not permit a measured
dis!,!ussion, making reasonable Arabia's decision •to consult with two
experienced deputies and insist on the hearing's cancellation as legally
unfounded. See id. at 1.10(a)(1) (providing- that a concurrent. conflict of
interest that is' based on a lawyer's personal interest under Model Rule
.7(a)(2) is not imputed to other laWyers wha practice with. that lawyer
unless their representation, too, presents "a significant risk of materially
limiting the representation of the client by the remaining laWyers - in the
firm").
Our review of the disciplinary panel's findings of fact iS
deferential, "so long as they are not clearly .erroneous and are supported by
substantial evidence." Colin, 1.35 Nev. at 330, 44-8 P.3d at 560. And "we
determine de novo whether the factual findings establish an RPC violation."
id. Here, the panel's findings of a disabling Personal interest causing harm
to -Arabia's representation of Nye County are clearly erroneous and do not
support holding that Arabia's email violated RPC 1.7(a)(2).
-•B
The State. Bar -also charged Arabia with violating RPC 8.4(d)
based on the same September 24 email. RPC 8.4(d) provides that "filt is
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prejudicial to the administration of justice." "For purposes of this [Mule
WAWA , 'prejudice requires 'either repeated conduct causing some harm to
the administration of justice or a single act causing substantial harm to the
administration of justice."' Colin, 135 Nev. at 332, 448 P.3d at 562 (quoting
In re Discipline of Stuhff, 108 Nev. 629, 634, 837 P.2d 853, 855 (1992)). The
facts in this case do not rise to the level required to establish "prejudice"
under Colin. It proceeds from a "single act"—Arabia sending the
September 24 email to Nye County's human resources director without
copying the deputy—and that act did not cause "substantial harm to the
administration of justice." Id. The deputy promptly learned of Arabia's
communication, and the hearing was properly canceled for the reasons
already discussed. Accordingly, the RPC 8.4(d) charge is a legal nonstarter
and should be dismissed.
C.
Arabia has had no prior attorney discipline, and the panel found
that his conduct in sending the email was negligent, not intentional.
Furthermore, the hearing's cancellation caused Nye County little or no
actual or potential harm. Under these circumstances, even accepting for
purposes of argument that Arabia's email violated RPC 1.7(02), the
sanction of a formal public reprimand is unwarranted. At most, the email
warranted an admonition. See Compendium of Professional Responsibility
Rules and Standards: Standards for Imposing Lawyer Sanctions, Standard
4.34 (Am. Bar Ass'n 2017) ("Admonition is generally appropriate when a
lawyer engages in an isolated instance of negligence in determining
whether the representation of a client may be materially affected by the
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lawyer's own interests . . . and causes little or no actual or potential injury
to a client.").
While I join the parts of the opinion rejecting qualified
immunity and the claim of exclusive jurisdiction of the Nevada Commission
on Ethics, I otherwise respectfully dissent.
J.
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