Robert A. Slovak v. Wells Fargo Bank, N.A ( 2021 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 ROBERT A. SLOVAK, Case No. 3:13-cv-00569-MMD-CLB 7 Plaintiff, ORDER REVOKING PRO HAC VICE v. STATUS OF ATTORNEY SCOTT D. 8 JOHANNESSEN WELLS FARGO BANK, N.A., et al., 9 Defendants. 10 11 This is an attorney discipline matter regarding one of the attorneys of record in this 12 case. The Court admitted Plaintiff’s counsel Scott D. Johannessen pro hac vice. (ECF No. 13 232.) The Court issued an order to show cause as to why the Court should not revoke 14 Attorney Johannessen’s pro hac vice status for violating LR IA 11-7(c). (ECF No. 391 15 (“OSC”).) Attorney Johannessen filed a response and requested a hearing. (ECF No. 409 16 (sealed).)1 The Court then held a hearing (the “Hearing”) on the OSC per Attorney 17 Johannessen’s request. (ECF Nos. 412, 416 (hearing minutes).) As further explained 18 below, the Court revokes Attorney Johannessen’s pro hac vice status in this case but stays 19 the revocation until the Court issues an order on the pending Reports and 20 Recommendations (ECF Nos. 414, 415). 21 The Local Rules give the Court the power to revoke pro hac vice status. See LR IA 22 11-2(f) (“The court may revoke the authority of the attorney permitted to appear under this 23 rule.”); see also LR IA 11-8(c) (providing that the Court may sanction an attorney who fails 24 to comply with the Local Rules); see also Lasar v. Ford Motor Co., 399 F.3d 1101, 1118 25 26 1The Court granted Attorney Johannessen’s motion for leave to file his response 27 under seal. (ECF Nos. 408, 412.) However, the Court denied Attorney Johannessen’s oral motion to seal the Hearing. (ECF No. 416.) 28 2 of the federal courts’”) (citation omitted); see also id. at 1111-14 (indicating that district 3 courts must provide notice and an opportunity to be heard before imposing any sanctions, 4 along with giving specific notice of the sanctions a court is considering). As noted, in the 5 OSC, the Court flagged that Attorney Johannessen violated LR IA 11-7(c) by failing to 6 report two public censures to the Court. (ECF No. 391.) LR IA 11-7(c) provides the 7 following: 8 If an attorney admitted to practice under these rules is subjected to professional disciplinary action or convicted of any felony or other 9 misconduct that reflects adversely on the attorney’s honesty, trustworthiness, or fitness as an attorney in Nevada or in another jurisdiction, 10 the attorney must immediately inform the clerk in writing of the action. Failure to make this report is grounds for discipline under these rules. 11 12 Id. (emphasis added to aid the discussion below). 13 To start, the Court provided Attorney Johannessen notice and an opportunity to be 14 heard by holding the Hearing. At the Hearing, Attorney Johannessen reiterated the primary 15 argument he raised in response to the OSC: that he did not believe he was required to 16 report the public censures he received in Tennessee because they did not ‘reflect 17 adversely on his honesty, trustworthiness, or fitness’ as an attorney. However, and as the 18 Court explained at the Hearing, this is an incorrect reading of LR IA 11-7(c). LR IA 11-7(c) 19 is written in the disjunctive. For this reason, an attorney admitted to practice before this 20 Court must report any professional disciplinary action they are subjected to, regardless of 21 whether it reflects adversely on their honesty, trustworthiness, or fitness as an attorney. 22 See id. Attorney Johannessen did not report the public censures he received in Tennessee 23 and therefore violated LR IA 11-7(c).2 24 And even if the Court were to agree with Attorney Johannessen’s incorrect reading 25 of LR IA 11-7(c)—and it does not—Attorney Johannessen’s decision not to report his two 26 27 2Attorney Johannessen stated at the Hearing that he agreed both that the public 28 censures he received in Tennessee were ‘professional disciplinary actions’ and that he did not report them to the Court. 1 || public censures in Tennessee to this Court was unreasonable. yy Se S| ee Se 5 7 8 9 10 11 12 13 14 Se 1 ee ee Se | ee 20 4 In addition, Attorney Johannessen’s conduct at the Hearing further convinced the 22 || Court that no less severe sanction short of revoking Attorney Johannessen’s pro hac vice 23 || status in this case would suffice. Even after the Court stated that LR IA 11-7(c) is 24 || disjunctive and thus required him to report his public censures even if they did not reflect 25 || adversely on his fitness as an attorney, Attorney Johannessen did not volunteer that he 26 || was the subject of other professional disciplinary actions not referred to in the OSC. But 27 || then Attorney Johannessen later admitted when directly questioned by the Court that he 28 || had been subject to other professional disciplinary actions that he had also not reported 2 interpretation of LR IA 11-7(c) when the Court asked him to explain why he had not 3 volunteered earlier in the Hearing that he had been professionally disciplined on other 4 occasions beyond the two public censures in Tennessee and did not report those to the 5 Court either. That explanation was particularly unreasonable because the Court had 6 already told Attorney Johannessen his reading of LR IA 11-7(c) was incorrect. Suffice to 7 say, Attorney Johannessen’s testimony at the Hearing was neither credible nor 8 reasonable. 9 While the Court gave him the opportunity (ECF No. 391 at 2), Attorney 10 Johannessen did not propose an alternative sanction short of revocation of his pro hac 11 vice status (ECF No. 409 at 14 n.8 (sealed)). But at the Hearing, Attorney Johannessen 12 asked that the Court allow him to see this case through to its conclusion, which he expects 13 to happen soon. The Court will grant that request only to the extent necessary to allow the 14 Court to issue an order on the two pending Reports and Recommendations (“R&Rs”) from 15 United States Magistrate Judge Carla L. Baldwin (ECF Nos. 414, 415), as the order on 16 them may resolve this case. Attorney Johannessen may file objections to the pending 17 R&Rs by December 17, 2021. Apart from and after that, he may not take any further action 18 in this case. Attorney Johannessen’s pro hac vice status will terminate upon the Court’s 19 issuance of an order accepting or rejecting the two pending R&Rs (ECF Nos. 414, 415). 20 It is therefore ordered that Scott D. Johannessen’s pro hac vice admission to 21 practice in this case is revoked. 22 It is further ordered that the Court’s revocation of Attorney Johannessen’s pro hac 23 vice status is stayed until the Court issues an order resolving the two pending R&Rs (ECF 24 Nos. 414, 415) as specified above. 25 /// 26 27 3In response to the Court’s question at the Hearing, Attorney Johannessen disclosed a disciplinary matter involving a professional privilege tax imposed by the 28 Tennessee state bar in 2011 or 2012 and reciprocal discipline by the State Bar of California. 1 It is further ordered that, if Attorney Johannessen ever applies for pro hac vice 2 || admission in the District of Nevada in the future, he must disclose this order in, and attach 3 || acopy of this order to, his application for pro hac vice admission. 4 DATED THIS 7" Day of December 2021. 5 7 □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ CHIEF UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28