In Re: Discipline of Douglas Fermoile

violations, the panel recommended that Fermoile: (1) be issued a public reprimand; (2) be required to take and pass the Multistate Professional Responsibility Examination (MPRE) within one year; (3) pay the costs of the disciplinary proceeding; and (4) that, within six months, he retain another attorney at his own expense to audit his law practice, and then implement any changes to his law practice suggested by the auditor. The State Bar does not contest the panel's conclusions as to its findings of facts or rule violations, but contests the amount of discipline proposed, arguing it is too lenient. Fermoile asserts that the State Bar failed to establish most of the alleged violations by clear and convincing evidence, and thus argues that even a public reprimand is too harsh. The findings and recommendations of a disciplinary board hearing panel, though persuasive, are not binding on this court. In re Stuhff, 108 Nev. 629, 633, 837 P.2d 853, 855 (1992). The automatic review of a panel decision recommending public discipline is conducted de novo, requiring the exercise of independent judgment by this court. Id.; SCR 105(3)(b). The panel's findings must be supported by clear and convincing evidence. SCR 105(2)(e); In re Drakulich, 111 Nev. 1556, 1566, 908 P.2d 709, 715 (1995). In determining the proper disciplinary sanction, this court considers 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 circumstance& In re ...continued instances of prior discipline regarding Fermoile were remote in time per SCR 102.5(2)(n). Further, while not corresponding to a numerated factor, the panel did note that the clients who filed the complaints against Fermoile had memory gaps when they testified, which affected their credibility. SUPREME COURT OF NEVADA 2 (0) I94Th c4tto Lerner, 124 Nev. 1232, 1246, 197 P.3d 1067, 1077 (2008) (citing American Bar Association Standards for Imposing Lawyer Sanctions 3.0, Compendium of Professional Responsibility Rules and Standards, 344 (1999)). Having reviewed the parties' briefs and the record on appeal, we conclude that clear and convincing evidence supports the panel's findings as to the rule violations committed by Fermoile. We also conclude, based on the evidence presented and the conflicting testimony of the parties, that the panel's recommended punishment is appropriate. Accordingly, we direct the disciplinary panel to issue the public reprimand that it attached as an exhibit to its decision. Additionally, Fermoile must take and pass the Multistate Professional Responsibility Examination (MPRE) within one year of the date of this order; pay the costs of the disciplinary proceeding; and, within six months of the date of this order, retain another attorney at his own expense to audit his law practice and then implement any changes to his law practice suggested by the auditor. It is so ORDER C.J. Gibbons Pickering Hardesty GGV J. Parraguirre Saitta SUPREME COURT OF NEVADA 3 (0) 1947A