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.
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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
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