In Re: Discipline Of James J. Jimmerson

IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF DISCIPLINE OF No. 83255
JAMES J. JIMMERSON, BAR NO. 264.
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ORDER OF PUBLIC REPRIMAND BY EF DEPUTY CLEW
This is an automatic review of a Southern Nevada Disciplinary
Board hearing panel's recommendation to publicly reprimand James J.
Jimmerson for violating RPC 1.15 (safekeeping property) by making five
transfers from his trust account to his business account and a personal
account. Jimmerson made three of the transfers before clients paid bills for
earned fees, one transfer from a client's retainer before earning the fee, but
with that client's permission, and one transfer through a clerical error.
The State Bar does not contest the panel's conclusions as to
Jimmerson's violation of RPC 1.15, his mental state, or potential injury to
clients, but it argues that the recommended discipline is too lenient. In that
regard, the State Bar asserts that two of the mitigating factors found by the
panel (absence of dishonest or selfish motive and personal or emotional
problems) are not supported and that, regardless of the other mitigating
factors, discipline short of a suspension is not proper in a case involving
misappropriation of client funds. Jimmerson does not contest the RPC 1.15
violation but asserts that the weight of mitigating circumstances, his
mental state, and the level of harm, which all factor into a discipline
determination, support the panel's recommendation.
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As to the RPC 1.15 violation, we conclude that clear and
convincing evidence supports the panel's findings. In re Discipline of
Drakulich, 111 Nev. 1556, 1566, 908 P.2d 709, 715 (1995) (recognizing the
State Bar's burden of proof in a disciplinary matter). As to the discipline,
Jimmerson violated a duty owed to his clients (safekeeping client funds),
and the record supports the panel's conclusion that he should have known
not to make four of the transfers, given that he acknowledged that he did
not verify whether his clients had actually paid their bills before making
three of the transfers and that he made the fourth transfer before earning
the fee, albeit with the client's permission. The record likewise supports
that Jimmerson made a clerical error and thus acted negligently as to the
fifth transaction. The panel found and the record supports that no actual
injury occurred but the transfers from the trust account had the potential
to injure clients.'
Suspension generally applies as a baseline sanction for
Jimmerson's misconduct. See Standards for Imposing Lawyer Sanctions,
Compendium of Professional Responsibility Rules and Standards, Standard
4.12 (Am. Bar Asen 2017) (providing that suspension is appropriate when
a lawyer should know that he is dealing improperly with client property and
causes potential injury to clients). But based on the evidence supporting
the weight of mitigating circumstances (free and full disclosure to the
disciplinary authority and cooperative attitude in the proceedings; personal
1The record supports the panel's finding that potential injury was
remote here because (1) the clients subsequently paid their bills, some
within days of Jimmerson's withdrawals from his trust account, (2) he
earned the retainer fee that the client consented to Jimmerson using shortly
after he withdrew it from his trust account, and (3) he immediately
corrected the clerical-error transfer upon discovering it.
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or emotional problems2; remorse; timely good faith effort to rectify the
consequences of the misconduct; and the remoteness of Jimmerson's prior
discipline offense, which occurred in 1994) compared to the two aggravating
circumstances (substantial experience in the practice of law and prior
disciplinary offense), we conclude that a public reprimand is sufficient.3
SCR 105(3)(b) (providing that a de novo standard of review applies to legal
conclusions and recommended discipline and a deferential standard applies
to findings of fact); In re Discipline of Schaefer, 117 Nev. 496, 515, 25 P.3d
191, 204 (2001) (observing that the hearing paners disciplinary
2 Contrary to the State Bar's argument, the testimony supports the
panel's finding that personal or emotional problems apply as a mitigating
factor here.
3We need not address the State Bar's argument regarding the panel's
finding that Jimmerson's misconduct was additionally mitigated by absence
of a selfish motive because under these circumstances, we conclude that
even without that mitigating factor, the panel appropriately found that the
circumstances here weigh in favor of a public reprimand, which sufficiently
serves the purpose of attorney discipline. State Bar of Nev. v. Claiborne,
104 Nev. 115, 213, 756 P.2d 464, 527-28 (1988) (stating that the purpose of
attorney discipline is to protect the public, the courts, and the legal system).
Also, to the extent the State Bar argues that suspension should apply
as a hard and fast minimum threshold discipline for any violation that fits
under Standard 4.12, we decline to adopt such a rule. The Standards and
our caselaw support that discipline is partly determined by considering the
extent of potential or actual harm caused by the misconduct and
circumstances that may mitigate or aggravate it. In re Discipline of Lerner,
124 Nev. 1232, 1246, 197 P.3d 1067, 1077 (2008); Standards for Imposing
Lawyer Sanctions, Standard 3.0 (listing factors to be considered, including
the potential or actual injury and the existence of aggravating or mitigating
factors); Standard 4.1 (stating that the recommended levels of discipline are
generally appropriate in cases involving the failure to preserve client
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property" and apply "[a]bsent aggravating or mitigating circumstances,
upon application of the factors set out in 3.0).
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recommendation is persuasive); see In re Discipline of Lerner, 124 Nev.
1232, 1246, 197 P.3d 1067, 1077 (2008) (setting forth the four factors used
in determining whether the panel's recommended discipline is appropriate:
"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 factore).
Accordingly, we hereby publicly reprimand attorney James J.
Jimmerson for violating RPC 1.15. Additionally, Jimmerson shall pay the
costs of the disciplinary proceedings, including $1,500 under SCR 120(3)
within 30 days from the date of this order if he has not already done so. The
State Bar shall comply with SCR 121.1.
It is so ORDERED.
Hardesty
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Ale4C.4-.0
Stiglich Herndon
cc: Chair, Southern Nevada Disciplinary Board
Bailey Kennedy
Bar Counsel, State Bar of Nevada
Executive Director, State Bar of Nevada
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