IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF DISCIPLINE OF No. 69228
JERRY DONOHUE, BAR NO. 8793.
FILED
JUL 2 2 2016
ORDER OF SUSPENSION BY
This is an automatic review of a Southe T Nevada
Disciplinary Board hearing panel's findings of fact, conclusions of law and
recommendation that attorney Jerry Donohue be suspended from the
practice of law for one year. The panel also recommended that Donohue
take six hours of continuing legal education (CLE) on law office
management and six hours of CLE on ethics, in addition to the CLE hours
he was ordinarily required to complete. The panel further recommended
that Donohue pay restitution to certain clients prior to applying for
reinstatement and pay the costs of the bar proceedings, excluding staff
salaries.
The record before this court indicates that in 2011 Donohue
was retained by LaVonne Atkins-St. Rose to handle her son's traffic
tickets, and while her son completed traffic school and she provided
Donohue with the amount of the fine to be paid to the court, Donohue did
not provide evidence of the traffic school completion to the court and did
not pay the entire amount of the fine to the court. Thus, the panel found
that Donohue violated RPC 1.3 (diligence) for failing to ensure that proof
of completion of traffic school was provided to the court and RPC 1.4
(communication) for failing to respond to Atkins-St. Rose, after she
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discovered that a bench warrant had been issued for her son's arrest for
failing to pay the fine.
Also in 2011, during Donohue's representation of Stephanie
Tuesday, Donohue's paralegal, Jaime Clark, stole Tuesday's identity and
obtained a credit card under Tuesday's name. When Tuesday informed
Donohue about Clark's actions, Donohue failed to investigate Tuesday's
allegations or prevent Clark from having access to his client's information
or property until a year later, when Clark was arrested. The panel found
that Donohue violated RPC 1.15 (safekeeping property) because he
allowed Clark to be in a position where she could access Tuesday's
sensitive financial information, RPC 5.3 (responsibilities regarding
nonlawyer assistants) for failing to make reasonable efforts to ensure that
Clark was not stealing from his clients, and RPC 8.4 (misconduct) for
knowingly allowing Clark to act in ways that would violate the Rules of
Professional Conduct.
In May 2012, Welthy Silva retained Donohue to handle her
divorce, but according to Silva, Clark handled the majority of the work
done on her divorce. Additionally, Silva paid Clark $4,000 in cash to be
applied to her retainer, but that money disappeared and when Silva
questioned Donohue why her bill did not reflect the $4,000 credit, he once
again did not immediately limit Clark's access to his client's personal
information or property. The panel found that Donohue had violated RPC
1.4 (communication) for failing to respond to Silva, RPC 1.15 (safekeeping
property) for allowing Clark to be in a position where she could take
Silva's money and not credit that money to Silva's account, RPC 5.3
(responsibilities regarding nonlawyer assistants) for failing to make
reasonable efforts to ensure that Clark was not stealing from his clients,
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and RPC 5.5 (unauthorized practice of law) for allowing Clark to do work
on Silva's divorce without properly supervising her.
Lastly, Krista Hanson retained Donohue to handle two traffic
tickets for her. Hanson provided her credit card information to Clark to
pay the court fine, but instead of paying the court fine Clark charged the
same amount on the credit card payable to a company unrelated to
Donohue. A bench warrant was issued for Hanson's arrest for failure to
pay the fine, and after making her payment directly to the court she
attempted to contact Donohue repeatedly, but to no avail. The panel
found that Donohue violated RPC 1.1 (competence) for failing to
appropriately handle Hanson's traffic ticket, RPC 1.3 (diligence) for not
diligently responding to Hanson's matter, RPC 1.4 (communication) for
failing to return Hanson's calls, RPC 1.15 (safekeeping property) for
allowing Clark to charge Hanson and then not ensuring that Hanson's
ticket was paid, and RPC 5.3 (responsibilities regarding nonlawyer
assistants) for failing to make reasonable efforts to ensure that Clark was
not stealing from his clients.
In addition to these findings, the panel found the following
aggravating factors: (1) prior disciplinary offense; (2) pattern of
misconduct; (3) submission of false evidence, false statements, or other
deceptive practices during the disciplinary hearing; (4) refusal to
acknowledge the wrongful nature of conduct; (5) vulnerability of victim; (6)
substantial experience in the practice of law; and (7) indifference to
making restitution. The panel found that the only mitigating factor was
the delay in the disciplinary proceedings.
Based on our review of the record, we conclude that the panel's
findings are supported by clear and convincing evidence and the panel's
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recommendation of a one-year suspension should be imposed.' In re
Discipline of Schaefer, 117 Nev. 496, 515, 25 P.3d 191, 204 (2001)
(explaining that this court will examine the record anew and exercise
independent judgment, and that "[e]thical violations must be proven by
clear and convincing evidence"). Further, the State Bar of Nevada was not
judicially estopped from prosecuting Donohue's ethical violations because
he was a victim/witness at Clark's criminal trial as the State Bar is not
the same party as the State of Nevada, which brings criminal complaints.
See SCR 76(1) (providing that the State Bar is a public corporation "under
the exclusive jurisdiction and control of the supreme court").
While we are concerned by Donohue's misconduct and the
substantial aggravating factors, including that Donohue does not appear
to understand that he should have investigated Clark's actions or
prevented her access to his client's personal information and property
earlier, we conclude that the panel's recommended discipline is sufficient
to serve the purpose of attorney discipline, because a one-year suspension
in combination with the six CLE hours on law office management and the
six CLE hours on ethics should assist Donohue in understanding and
addressing his ethical violations. See State Bar of Nev. v. Claiborne, 104
Nev. 115, 213, 756 P.2d 464, 527-28 (1988) (explaining that the purpose of
attorney discipline is not to punish an attorney but to protect the public
and the integrity of the bar).
'While the panel failed to issue its written decision within 30 days,
SCR 105(2)(e), we conclude that this failure does not warrant dismissal of
the bar complaint. See SCR 119(2) ("Failure to observe directory time
intervals may result in contempt of the appropriate disciplinary board or
hearing panel having jurisdiction, but will not justify abatement of any
disciplinary investigation or proceeding.").
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We hereby suspend Jerry Donohue from the practice of law in
Nevada for a period of one year commencing from the date of this order.
Donohue shall (1) complete six hours of CLE on law office management
and six hours of CLE on ethics, in addition to the hours of CLE he is
ordinarily required to complete; (2) pay restitution in the amounts of $925
to Atkins-St. Rose, $2,500 to Silva, and $580 to Hanson, prior to applying
for reinstatement; and (3) pay the costs of the bar proceedings, excluding
staff salaries, within 30 days of invoicing from the State Bar of Nevada.
The parties shall comply with SCR 115 and SCR 121.1.
It is so ORDERED.
czcir
Parraguirre
Cl. Cl.
Hardesty
Cl.
Cherr Saitta
Gibbons
cc: Chair, Southern Nevada Disciplinary Board
David Lee Phillips & Associates
Kimberly K. Farmer, Executive Director, State Bar of Nevada
C. Stanley Hunterton, Bar Counsel, State Bar of Nevada
Perry Thompson, Admissions Office, U.S. Supreme Court
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