In Re: Discipline Of Douglas W. Nicholson

IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF DISCIPLINE OF No 84493
DOUGLAS W. NICHOLSON, BAR NO.
3654 FILE
ORDER REJECTING CONDITIONAL GUILTY PLEA AGREEMENT
This is an automatic review of a Northern Nevada Disciplinary
Board hearing panel's recommendation that this court approve, pursuant
to SCR 113, a conditional guilty plea agreement in exchange for a stated
form of discipline for attorney Douglas W. Nicholson. Under the agreement,
Nicholson admitted to violating RPC 3.4(c) (fairness to opposing party and
counsel: knowingly disobeying an obligation under the rules of a tribunal),
RPC 5.5 (unauthorized practice of law), RPC 8.4(c) and (d) (misconduct),
and SCR 115 (duties regarding suspended attorneys). He agreed to a one-
year suspension to run consecutive to the suspension in In re Discipline of
Nicholson (Nicholson Discipline 2020), No. 81190, 2020 WL 4284480 (Nev.
July 24, 2020) (Order of Suspension), and the payment of costs.
Nicholson has admitted to the facts and violations as part of his
guilty plea agreement. The record therefore establishes that Nicholson
violated the above-referenced rules by failing to inform two clients about his
2020 suspension and continuing to represent those clients while suspended
from the practice of law.
The issue for this court is whether the agreed-upon discipline
sufficiently protects the public, the courts, and the legal profession. See
State Bar of Nev. v. Claiborne, 104 Nev. 115, 213, 756 P.2d 464, 527-28
(1988) (explaining the purpose of attorney discipline). In determining the
appropriate discipline, we weigh four factors: "the duty violated, the
lq.rqi
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).
Nicholson knowingly violated duties owed to his clients and the
profession, resulting in injury or potential injury to all. The baseline
sanction for his misconduct, before considering aggravating and mitigating
circumstances, is suspension. See Standards for Imposing Lawyer
Sanctions, Compendium of Professional Responsibility Rules and
Standards, Standard 7.2 (Am. Bar Ass'n 2017) (providing that "[s]uspension
is generally appropriate when a lawyer knowingly engages in conduct that
is a violation of a duty owed as a professional and causes injury or potential
injury to a client, the public, or the legal system"). The record supports the
one mitigating circumstance (cooperative attitude towards the disciplinary
proceeding) and one aggravating circumstance (substantial experience in
the practice of law) found by the panel. However, the panel failed to
consider as an aggravating factor Nicholson's lengthy disciplinary history,
see SCR 102.5(1)(a), which includes the suspension leading to the
unauthorized practice of law at issue here, see, e.g., Nicholson Discipline
2020, 2020 WL 4284480 (suspending Nicholson for two years for numerous
violations relating to failing to communicate with clients, move cases
forward, or fully participate in disciplinary proceedings); In re Discipline of
Nicholson, No. 78799, 2019 WL 4391206 (Nev. Sept. 12, 2019) (Order
Approving Conditional Guilty Plea Agreement) (imposing a stayed two-year
suspension where Nicholson admitted to "engaging in a pattern of neglect
and violating duties owed to his clients and to the legal system"); In re
Discipline of Nicholson, No. 74721, 2018 WL 2431674 (Nev. May 24, 2018)
(Order of Suspension) (imposing a six-month suspension for Nicholson's
failure to pay a former client as stated in a promissory note and ordered in
SUPREME COURT
OF
NEVADA
2
(01 1947A 446§to
a judgment); In re Discipline of Nicholson, No. 56184, 2012 WL 432551(Nev. Feb. 9, 2012) (Order Approving Conditional Guilty Plea Agreement)
(imposing a six-month-and-one-day suspension for misconduct related to
two different clients). As Nicholson's disciplinary history suggests a pattern
of misconduct, we find the agreed-upon discipline to be insufficient. Indeed,
the panel should have considered such history when deciding whether the
agreed-upon discipline sufficiently protected the public, the courts, and the
legal profession.
Accordingly, we reject the conditional guilty plea agreement
and remand this matter to the Northern Nevada Disciplinary Board for
further proceedings consistent with this order.
It is so ORDERED.
Hardesty Stiglich
0-,
J. kit:6AM) J
Cadish Silver
elidA P , J. , J.
Pickerin Herndon
cc: Richard F. Cornell
Chair, Northern Nevada Disciplinary Board
Bar Counsel, State of Nevada
3