Professional Responsibility Exam (MPRE) as a condition of
reinstatement. 1
The sole issue in this appeal is the appropriate discipline.
This court's review is de novo. 2 SCR 105(3)(b); In re Discipline of Stuhff,
108 Nev. 629, 633, 837 P.2d 853, 855 (1992). The purpose of attorney
discipline is to protect the public, the courts, and the legal profession, not
to punish the attorney. State Bar of Nev. v. Claiborne, 104 Nev. 115, 213,
756 P.2d 464, 527-28 (1988). In determining the appropriate discipline,
this court has considered four factors to be weighed: "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 factors." In re
Discipline of Lerner, 124 Nev. 1232, 1246, 197 P.3d 1067, 1077 (2008).
The violations here are primarily related to Jones' felony
conviction in U.S. District Court, pursuant to a guilty plea, of conspiracy
to commit wire and mail fraud, a violation of 18 U.S.C. § 1349, and the
1 No opening brief has been filed. This matter therefore stands
submitted for decision based on the record. SCR 105(3)(b).
2 SCR 105(3)(b) has been amended to give deference to the panel's
findings of fact. See In re Amendments to Court Rules Regarding Attorney
Discipline, Specifically, SCR 105, ADKT 0505 (Order Amending Supreme
Court Rule 105, November 5, 2015) (providing that amendment is
"effective 30 days from the date of this order"). Even if applied to this
case, this change has no effect as the facts are not disputed—Jones failed
to answer the complaint and therefore the charges are deemed admitted,
SCR 105(2), and Jones also admitted the charges during the formal
hearing.
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conduct related to that conviction. 3 In particular, the coconspirators hired
Jones to be a special election master overseeing elections for the board of
directors at two homeowners' associations (HOAs). Soon thereafter, Jones
met with a representative from the Nevada Real Estate Division's
Ombudsman's Office, who explained the election process and the role of a
special election master. As a result, Jones knew that, in that role, his
primary responsibility would be to safeguard the integrity of the election
process. He did not disclose his law firm's relationship with the
coconspirators and later knowingly violated his primary role as special
election master by giving those individuals access to the homeowners'
ballots, thereby enabling them to learn the election results and to
substitute ballots altering the election results. Absent mitigating factors,
disbarment is appropriate in cases where, as here, an attorney has
engaged in "serious criminal conduct" that includes as a necessary
element misrepresentation or fraud. ABA Standards for Imposing Lawyer
Sanctions, Compendium of Professional Responsibility Rules and
Standards, Standard 5.11(a) (2015).
We turn then to the mitigating factors that the hearing panel
determined warrant suspension rather than disbarment. In particular,
the hearing panel focused on Jones' lack of experience in the practice of
law at the time of the misconduct, his cooperation, his remorse, and
testimony indicating that his criminal conduct was more the result of
3 Thiscourt temporarily suspended Jones from the practice of law
pursuant to SCR 111 and referred him for disciplinary proceedings in July
2014. In re Discipline of Brian M. Jones, Docket No. 65817 (Order of
Temporary Suspension and Referral to Disciplinary Board, July 30, 2014).
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recklessness or negligence than intent. Even considering those mitigating
circumstances, we are convinced that based on the duties violated and the
actual injury caused by Jones' misconduct, disbarment is necessary to
protect the public, the courts, and the legal profession.
We hereby disbar attorney Brian Jones from the practice of
law in Nevada. Such disbarment is irrevocable. SCR 102(1). Jones shall
pay the costs of the disciplinary proceeding within 30 days from the date of
this order. See SCR 120(1). The parties shall comply with the relevant
provisions of SCR 121.1.
It is so ORDERED.
sett
Hardesty
)074 J.
Douglas r‘
, J.
Saitta
J.
Pickering
PARRAGUIRRE, CHERRY, and GIBBONS, JJ., dissenting:
After considering the ABA Standards, the mitigating
circumstances, the level of Jones' involvement and his recklessness or
negligence rather than intent, the hearing panel recommended a five-year
suspension and conditions on reinstatement. In this case, we are
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persuaded by the hearing panel's evaluation of the mitigating
circumstances and its unanimous recommendation. See In re Discipline of
Schaefer, 117 Nev. 496, 515, 25 P.3d 191, 204 (2001) (observing that
although review is de novo, a hearing panel's recommendation is
persuasive). The lengthy suspension along with the requirements for
Jones to be reinstated following the suspension, which mandate that he
demonstrate the "moral qualifications, competency, and learning in law
required for admission to practice law in this state," SCR 116(2), and that
he successfully complete the examination for admission to practice, SCR
116(5), are more than sufficient to protect the public and the integrity of
the profession. We therefore dissent.
J.
Parraguirre
Cher
(516 J.
Gitbons
cc: Chair, Southern Nevada Disciplinary Board
Brian M. Jones
C. Stanley Hunterton, Bar Counsel, State Bar of Nevada
Holley, Driggs, Walch, Fine Wray Puzey & Thompson/Las Vegas
Kimberly K. Farmer, Executive Director, State Bar of Nevada
Perry Thompson, Admissions Office, U.S. Supreme Court
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)),