Serota's client was a defendant in an action by the SEC in
federal court. In anticipation of a negotiated outcome in that case, the
client paid Serota all of the monies due in advance, by way of fourteen
checks totaling $319,901.59 written between July 2 and July 24, 2009,
which were deposited in Serota's client trust account. 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. Serota continued to accept checks from the client until the
client had paid him the entire amount of the anticipated judgment. Then
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.
On August 3, 2009, Serota's client signed a consent to entry of
judgment, which was filed with the court on August 27, 2009. Pursuant to
the signed consent, on September 25, 2009, final judgment was entered
against Serota's client which ordered the client to, among other things,
pay a total judgment of $319,901.59 within 10 business days. On October
7, 2009, two days before the judgment was to be paid, Serota admitted his
misappropriations to the state bar.
Consequently, on December 29, 2009, 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). At the formal disciplinary hearing held
January 13, 2011, 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 which it alleged were present. On February 14, 2011, the
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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 costs of the proceedings. 2
2 Serota'smotion to set aside the recommendation of disbarment by
the board, filed July 7, 2011, 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, 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 contain numerous factual assertions not
supported by references to the record and references to facts which are
outside the record altogether. This is improper and we must disregard
such references. See NRAP 28(e)(1); SCR 105(3)(b); Carson Ready Mix,
Inc. v. First Nat'l Bank, 97 Nev. 474, 476,635 P.2d 276, 277 (1981). In
addition, Serota has improperly attempted to supplement the record with
exhibits not before the disciplinary panel, which we cannot consider and
have therefore disregarded. 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; we further direct the clerk of
this court to strike Exhibits 1-6 from Appellant's Reply Brief filed October
21, 2011.
Finally, on August 4, 2011, appellant filed an opposition to
respondent's motion to extend the time in which to file the answering
brief. At the time the opposition was filed, the extension of time had
already been granted. We therefore elect to treat appellant'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).
3
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 Nevada v. Claiborne, 104 Nev. 115, 129, 210, 219, 756
P.2d 464, 473, 526, 533 (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).
We conclude that the panel's findings are supported by clear
and convincing evidence. Serota concedes that he violated RPC 1.15.
Serota's client turned over money to him which 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). In addition to misappropriating the client's
funds for his own purposes, he allowed the client to sign the consent to
4
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.
Therefore, clear and convincing evidence supports the panel's findings
that Serota violated RPC 1.15 and 8.4. 3
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
public. We conclude that his conduct was intentional and caused actual
injury to his client. The egregiousness of his actions alone justifies
disbarment. See American Bar Association Standards for Imposing
Lawyer Sanctions, Compendium of Professional Responsibility Rules and
Standards, at 429 (2010 ed.) (disbarment generally appropriate when
lawyer knowingly converts client property causing injury or potential
injury).
The presence of aggravating circumstances further supports
this conclusion. See SCR 102.5(1). 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,
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 or subsection (d) of RPC
8.4.
4 0nAugust 18, 2008, Serota received a letter of reprimand for
having violated RPC 1.1 (competence), RPC 3.1 (meritorious claims and
contentions), and RPC 5.5 (unauthorized practice of law).
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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 if 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. SCR 102.5(1).
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. SCR 102.5(2). 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 case, he failed to
establish a causal connection between them and his misconduct. SCR
102.5(2)(i). 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, and instead on
appeal 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 in any case would not
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warrant a reduction in discipline in light of the seriousness of his
misconduct. SCR 102.(5)(2).
Accordingly, Serota is hereby disbarred from the practice of
law in this state. 5 Serota shall pay costs of the disciplinary proceedings in
the amount of $2,142.75 within 30 days from the date of this order. Serota
and the state bar shall comply with SCR 115 and SCR 121.1.
It is so ORDERED.
C.J.
Pickering
J.
Gibbons Hardesty
Parraguirre
, J.
Cherry Saitta
5 Inlight of this disposition, the other matters currently pending
before this court regarding Serota have been rendered moot. Personhood
Nevada v. Bristol, 126 Nev. 245 P.3d 572, 574 (2010); NCAA v.
University of Nevada, 97 Nev. 56, 57, 624 P.2d 10, 10 (1981). We therefore
deny Serota's petition for dissolution of our order temporarily suspending
him from the practice of law as moot. In re Discipline of Serota, Docket
No. 60179 (Petition for Dissolution of Temporary Suspension, April 24,
2012). Likewise, we deny the state bar's petition regarding Serota's felony
conviction as moot. In re Discipline of Serota, Docket No. 59551 (Petition
of Bar Counsel Pursuant to Reporting Requirements of SCR 111(4)).
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cc: Ronald N. Serota
David Clark, Bar Counsel
Jeffrey R. Albregts, Chair, Southern Nevada Disciplinary Board
Kimberly K. Farmer, Executive Director, State Bar of Nevada
Perry Thompson, Admissions Office, United States Supreme Court
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