One month later and the fairground is still as it was as lawyers get a look. [RJ; Fox5Vegas]
One month later and there is still a long road of recovery and challenges ahead for victims who survived. [Las Vegas Sun]
One month later and venders are unable to retrieve their trucks/goods, etc. [RJ]
One month later and there is now plenty of need and opportunity to give blood. [KNPR]
A murder trial is under way for Bryan Clay, being defended by Tony Sgro. [RJ]
The Chief State Medical Officer, who would be in charge of an upcoming execution, resigned Monday–allegedly for reasons unrelated to the execution. [TNI; Las Vegas Sun; Fox5Vegas]
I saw the synopsis of the State Bar adv. Geraldine Kirk-Hughes case on the NSC website. Although I've always thought Geraldine was a disaster waiting to happen, I think the due process and ex parte communication issues are important ones. I just wish it involved a more sympathetic individual.
9:47 again. I just scanned the docket for this case. It looks like a bloody mess, with Geraldine proceeding pro se. I don't have time to read much of it, but I fear this case/individual is the wrong vehicle for bringing these issues to the NSC.
I share your concerns. There are huge due process issues happening at the State Bar but am worried that making Geraldine the face of these issues will feed into Hunterton's narrative that we have to be draconian against attorneys because of the Geraldines of the world. Geraldine had Bill Terry at one time. Wish she would hire him back (even if just for the oral argument) because he knows due process and lawyer discipline as well as any attorney in this state.
Here is the synopsis for those interested. I have some interest in the issue of willfully withholding evidence from Kirk-Hughes in light of the Ginapp ruling below. Also the Report last week that Bar Counsel was meeting with Panels ex parte without the subject attorney in the room indicates that there are profound problems at the State Bar.
Details/Synopsis: Automatic review of a Southern Nevada Disciplinary Board hearing panel's recommendation for discipline in an attorney discipline matter. ISSUES: (1) Whether Kirk-Hughes' trust account records were improperly obtained; (2) whether the Bar deliberately withheld evidence from Kirk-Hughes; (3) whether an accused attorney has the right to appear before a screening panel; (4) whether the Bar improperly served Kirk-Hughes with the DCP Services Grievance; (5) whether the grievances were improperly joined; (6) whether the delay between the grievances' filing and hearing date violated Kirk-Hughes due process rights; (7) whether it was error for the Bar and not the hearing panel to draft the findings of fact, conclusions of law, and recommendation; (8) whether the Bar erred in investigating the Walker Grievance and not referring the matter to the Fee Dispute Committee; (9) whether the Bar erred when it allegedly did not submit the DCP Grievance to a screening panel; (10) whether the Bar Counsel's practice of providing a hearing packet to the hearing panel before the hearing is an impermissible ex parte communication; (11) whether Kirk-Hughes should prevail because the Bar apparently did not comply with NRAP 30(d); (12) whether Kirk-Hughes' Sixth Amendment confrontation rights were violated; (13) whether the panel violated Kirk-Hughes' procedural due process rights when it found she violated RPC 1.8(a) regarding Terri Drake; (14) whether Kirk-Hughes violated the Rules of Professional Conduct; (15) whether the panel's punishment recommendation is correct; and (16) whether the panel abused its discretion when it awarded fees and costs to the Bar. (Disclaimer: This synopsis is intended to provide only general information about this case before the Nevada Supreme Court. It is not intended to be all-inclusive or reflect all positions of the parties. To access the documents that have been filed in this matter, type the docket number into the court’s case search page: http://caseinfo.nvsupremecourt.us/public/caseSearch.do)
Have you seen her website (http://www.kirkhugheslaw.com/). It contains several slivers of pure gold. Free Consolidation! By Turtle Stop! We get results (don't ask what kind)! A link to her real estate sales page!
Guest
Anonymous
November 1, 2017 4:48 pm
Appears Bar Counsel just rolled over an attorney on potentially false pretenses. The State Bar files a complaint against Gabriel Ginapp alleging that he had agreed to review trust documents for a family friend and, during that conversation, had asked her for a loan in the amount of $39,000. Ginapp did not dispute that he took a loan from the woman, that he made two payments and made no more payments on the loan but said she was a family friend and not a client. Ginapp was having mental health issues at the time and did not participate in the Hearing. “At the disciplinary hearing, the State Bar presented evidence of the rule violations solely through the hearsay testimony of the State Bar's paralegal/investigator”; the State Bar not only never calls the woman as a witness but apparently was in possession of documentation from the woman in which the woman states that she was not a client of Ginapp but was just a family friend. OBC never introduced that evidence or even told the Panel that it had such documentation. The hearing panel enters a written decision recommending disbarment.
Once the Default Decision was entered against him, Ginapp asked the Office of Bar Counsel to set aside the Default for excusable neglect pursuant to Rule 60 and was told by the State Bar that his only recourse was to file a Brief with the Nevada Supreme Court which is false under Rule 60.
It took the Nevada Supreme Court fourteen months from filing to issue a Decision, but the Nevada Supreme Court noted that “if Ginapp is correct that the family friend from whom he took the loan was not his client at the time he solicited the loan, which, if true, would mean that [Ginapp] did not violate RPC 1.8(a).” Appears the State Bar had documents in its possession which show that there was no violation but refused to call the complainant as a witness (who would have said she was not a client) and refused to introduce the Complainant’s documentation. Ginapp has been dragged through the mud and confronted with a disbarment over what likely was never even a violation of the rule which the OBC charged. So who investigates the Office of Bar Counsel when they violate the rules?
Wait, being miserable in personal relationships, depression, and crying on the way to work isn't the norm for a defense lit associate? Hell, that's why I got out of that practice area.
If Mincavage did this, he needs to be investigated for violations of the Ethical Rules. I would be much more concerned about an attorney who hides evidence from a tribunal and presents hearsay in an effort to get his desired result than I would be about an attorney who took a loan from his Mom's friend. Sounds like Ginapp and Mincavage should switch positions at the hearing regarding who is defending his conduct.
In the next BOG elections, I will be voting (I never have before). I will vote for candidates solely on how they see the role of OBC. If no candidates are willing to express concern, my default will be to vote for challengers and only challengers.
If 9:48 is reporting this all accurately, I agree that basic rules and protections were ignored, and there is no excuse for that.
But the poster reaches well beyond that and pretty much argues that had the necessary rules and protections all been honored, and all proper procedure followed, that it is (supposedly) obvious that a finding of no discipline would(or, at least, should) have been made).
The support for this position seems to be based largely on the fact the NSC ruled that if the person in question was not a client, but only a merely friend, that there would be no violation of a particular rule. And on this point, let's not forget that when the State Bar files charges, they almost always assert violations of several rules, not just one.
9:48 validly points out apparent procedural and legal shortcomings and acts of apparent noncompliance by the Bar(which, admittedly, are inexcusable) but then makes the huge logical leap that had the Bar fully and properly complied with all rules and procedures, that the only fair result is complete exoneration of the attorney.
Again, I'm certainly not taken up for the Bar, and if this matter has been reported accurately, it seems as if the attorney should have recourse so his position can be fully and properly advanced. But, candidly, the presented fact pattern reeks from a mile away. I want to offer the following for 9:48's consideration:
1. Understanding that the Bar ignoring basic rules and protections and taking certain short cuts is not to be tolerated, this issue becomes far more nuanced and complex when
the attorney in question seeks to assert none of those rights, does not even appear for the hearing, which he realizes creates a template where the Bar may then attempt to portray the matter as more of a default type situation, with all the charging allegations essentially conceded to.
2. In these administrative type matters, which differ to a degree from procedures and protections in litigation, the Bar relies heavily on the Investigator. If the attorney wants to produce the complaining witness to say that he/she was not a client of attorney, he should have done so, rather than ignoring this entire process where his license and livelihood is in jeopardy.
3. He complains that after all this, wherein he does absolutely nothing to defend himself or his license or otherwise participate in the proceedings, that the State Bar should simply reopen the entire matter ad accept his conclusion that he suffered emotional problems. Did he offer any medical/psychological proof that these issues precluded him from participating in the proceedings, or any evidence that he is now miraculously cured and can fully participate? The State Bar need not reopen it, but attorney does have recourse beyond that and should presumably pursue that.
4. He insists that the person was not a client, which conveniently ignores the question of who complained to the Bar in the first place–the person who will now testify that they were not a client? How much sense does that make? They ask him to review a trust and offer advice(sufficient to establish they are a client, at least arguably so). He renders advice, and then takes a loan from the client, apparently without a written agreement to be viewed by separate counsel for the lender, fails to pay back much of the $39,000. and this fool thinks he can blow off the entire disciplinary proceeding, and then after the fact claim he had(apparently totally unsubstantiated) emotional problems and that no one should give a shit if he defaults on the loan because he is going to hang his entire argument on his representation that the person was not a client?
He does not deserve to lose his license for this, but his black and white world view, as well as that of 9:48, that the State Bar is the total big bad ogre and that attorney did absolutely nothing wrong is preposterous beyond measure.
3:20, I agree with many of your points but would offer as consideration the following points. No one said that Ginapp did nothing wrong. He failed to participate in Bar Proceedings, which is a violation unto itself. The excusability of that failure is debateable but there is no question but that he should not have ignored the proceedings. The Briefs state that he should not have ignored the proceedings.
1. Agree. Attorneys have (Ginapp had) a duty to participate in the process. But like in civil or criminal litigation, merely because the other side is not participating is not grounds which allows one to flout the standards of fairness to the Opposing Party and the Tribunal. In Discipline matters, there should be no nuance in cutting corners. Ginapp (and his ex-wife) have asserted that the SBN was aware that Ginapp was having mental health issues and charged forward anyway without disclosing that. The written statements from the Lender allegedly state that she was not a client, yet the Investigator said that the woman was a client at the time of the loan. Hearsay is never admissible; false hearsay is even worse. An Application for Default Judgment has to come from the client, not the attorney. When Mincavage just threw his Paralegal up there and allowed her to testify to facts (that appear false) that cant be allowed. In fact, OBC is supposed to be seeking justice and protect the Bar(as opposed to a Plaintiff in a civil default who is seeking to win). Mincavage's desire to "win" appears to have clouded any sense of protecting the Bar and treating all of its members fairly.
2. Agree some. Regardless of the issues, Ginapp should have participated in the proceeding. He should have written something on a piece of paper and filed it. But the burden to produce the Complainant and get the facts on the record was on the Bar. As the Supreme Court notes, the burden of introducing admissible (or best) evidence is on the State Bar, not Ginapp. The Investigator cannot testify to hearsay of what the Complainant meant. For example, the timeline of events of when the monies were paid and when any work was requested was crucial. Ginapp alleges in his Brief that the information testified to by the Investigator is directly contrary to what the Complainant states in her Complaint and the written statements from the Complainant. That is somewhere between hearsay and perjury potentially. Too often these hearings (as you note) are rubber stamps by the Panel of whatever the SBN wants. I would hope the Panel would at least want to see the true facts and evidence.
3. Disagree. Ginapp states (and provides evidence) of his mental health treatment records and that his health was known by Mincavage prior to the Hearing and that none of these issues were brought to the Panel's attention. Mincavage has the same duties to deal fairly with the tribunal and opposing parties as any other attorney; arguably they should have higher duties under these circumstances. You ask "Did he offer any medical/psychological proof that these issues precluded him from participating in the proceedings"– yes according to the record he did.
4. Completely disagree. You have the timeline backwards when you state "[t]hey ask him to review a trust and offer advice. . . He renders advice, and then takes a loan from the client, apparently without a written agreement to be viewed by separate counsel for the lender." To the contrary, the timeline appears to be that woman loans him money (when there was no client relationship), he fails to pay it back, woman then says can you review a trust. If she wasn't a client at the time that the loan was made, it was not a violation of Rule 1.8. This is why timing matters; this is why competent evidence, testimony and witnesses matter. You likewise claim that Ginapp blew "off the entire disciplinary proceeding, and then after the fact claim he had(apparently totally unsubstantiated) emotional problems". Once again, the briefs in the case show that you have the timeline backwards. He had mental health problems (under the care of physicians), tells the SBN of his issues, SBN proceeds with the Hearing anyway which Ginapp fails to attend. Ginapp should not have blown off the Hearing (no matter what his mental state). The fact that OBC went after a disbarment on these facts is abominable. .
There are close calls in matters. This is not a close call. The allegations in this case look pretty bad for the OBC.
But if the person(who wanted the trust reviewed) is now willing to help exonerate the attorney, and claim that he/she was never a client, then who started this whole process anyway? It could not have been the Bar by itself since someone would have needed to make them aware of it and file the complaint.
Something makes no sense, even if everything you say is accurate(and I'm assuming it is, and is established by the record).
Wasn't this person, with the trust, the one who filed the Bar complaint? And if they are willing to concede the point that they did not technically consider themselves to be a client, that does not mean that they are now automatically a witness in support of the attorney,or that they are still not aggrieved.
The Bar, despite such representation by the witness, would probably seek to apply a more supposedly objective standard of when a limited attorney/client relationship is established. The subjective view of the lay person, who probably does not understand the nuances of this matter, is not dispositive. Often when people concede the point that they did not technically consider themselves a client(since many lay people take a real formal view of when attorney/client relationships commence and they believe written engagement contract and payment to the attorney is necessary), within a few more questions it becomes painfully obvious the same person who just said they did not technically consider themselves to be a client, were relying on the advice they received from the attorney(who they supposedly are not a client of).
So, anyone who thinks that the subjective "yes" or "no" answer of a lay person as to whether they are technically a client is conclusive, knows little of the writings and case law in that area. Bar Counsel seemingly knows, so anyone challenging them on this matter needs to research the area.
And this whole "client" vs."non-client" distinction totally ignores that the Bar can pursue him for other possible violations surrounding that if he has a contract(in this case a substantial loan) with a lay person, that due to the attorneys dramatically superior negotiating and knowledge postion, that some level of fiduciary duty arises. At the absolute minimum he was required to place in writing that he/she can and should have the loan contract reviewed by independent counsel. No indication the attorney did that. All we know is that he defaulted and most of it remains unpaid. For him and his supporters to not understand that this concern is very valid and exists as a possible separate violation regardless of how the "client" vs. "non-client" issue is resolved, also does not know the law in this area and needs to research it. Trust me, Bar Counsel knows this, so attorney and those representing him better know it too, and be prepared.
Just because a person makes a Complaint to the State Bar does not make them a client. Opposing Counsel can make complaints. Members of the public make complaints. Heck I had a corporation file a Complaint against me because I refused to agree that their forged contract was ever signed by me. People file Bar Complaints for any number of reasons, including that they just need some help getting an answer from an attorney.
Once again, could there have been other violations by Ginapp? Sure, of which one was not responding to Bar Counsel which is appears was clearly violated. But it appears that a failure to respond to Bar Counsel turned this case into a disbarment, meaning that we apparently have Det. Jeff Payne and Lt. James Tracy now running the Office of Bar Counsel. The issue isn't that the SBN cannot conduct a discipline investigation and have a hearing. The issue is why is the OBC conducting hearings in which it appears to be burying evidence and not giving the Tribunal the full and accurate facts. What would the woman have said in the Bar Hearing? I have no idea because that never happened. I am not prejudging the facts. All of those nuances of attorney/client relationships should have been borne out in the facts; however they weren't because the whole record was what the Bar Investigator said the facts were. Maybe this woman really was a client; however those facts and determinations need to come from competent evidence which was not presented and appears to have been buried by Mincavage.
No, she is not a client merely because she made the complaint. But she, or someone else, made this complaint, and once they did, this apparent "client" vs. "non-client" distinction somehow became somewhat important.
I don't think what (apparently) occurred here at all justifies disbarment, but, yes, once he doesn't respond or participate,
all the charging allegations(even if some are really distorted, and some are actually factually false) are deemed admitted and become the operative reality of the case, even if they are not the actual reality of what occurred.
There is no doubt that failure to respond is a separate violation which, in addition to being taken very seriously as a violation, provides the justification for the Bar to conclude that all the factual allegations are true, and are essentially conceded.
And it's relatively easy to respond. It's not like responding to an appeal, which all can be quite technical and involved. When they sent him their first letter, all he had to do was send a dated letter in response. That's it. And for cases that eventually proceed to a formal complaint by the Bar, he just had to file like a one page response denying most of the substantive allegations. He obviously blew off multiple letters asking for a response, blew off the formal complaint, appeared for no hearings, made no contact whatever. So, if this was all caused by emotional stress, and he therefore could not take the most extremely minimal steps to try to salvage his career, is someone like this, after just the passage of a short period of time, really in a position to diligently and consistently protect the critical rights of clients? If so, where's the conclusive med./psych. reports establishing that a handful of months back he could not spend five minutes to save his career, but he can now be trusted with complex legal matters on behalf of multiple clients?
Point being, some appear to be suggesting that this attorney should be the poster boy for issues concerning the Bar's alleged ignoring of rules and safeguards, and being too aggressive with prosecutions and penalties.
Those are certainly issues worthy of discussion, but you need a totally different poster boy. After all, please consider that those who have weighed in on this matter in support of the attorney, have spent far more time, thought and zeal in arguing to protect the attorney's livelihood and license than the attorney himself ever did during all relevant time periods in question.
There must be much stronger cases that can be made against the Bar as to other disciplined attorneys, but not this one. If this is the best "victim" that one can come up with, current Bar leadership much be a lot more fair and even-handed than I have been lead to believe.
That all said, the Bar should always remember that their mission statement does not include being punitive. So if they can see their way to ever let this attorney practice, while still adequately protecting his future clients and the public at large, that could make infinite sense. After all, it is the only way the lender here could ever recoup most of the $39,000.If the attorney can't practice, good luck ever collecting it.
I would bet the farm that the lender would much prefer if they are reimbursed(even if it means the attorney can still practice), rather than having the empiric victory that the attorney did bad, will never practice again, but, by the way, you will probably never recoup any more of your $39,000.
Some potentially real good points in there, but I am with 5:54. If the NSC(who some insist had one or more justice stress to Bar Counsel to be more aggressive),sees enough problems to remand it, then where there is smoke there may very well be fire.
We shall see how it plays out.
I would mention that I hear what you are saying about the attorney apparently, at the time, doing little or nothing to save his own career. But a common thread of many cases which result in disbarment is that the attorney is in such a bad, dark place in his/her life that they compound their own problems by not defending themselves. They often seem to be suffering emotional inertia, and even emotional paralysis. There are not many case where someone is permanently disbarred wherein they aggressively fought the whole way, complied with all rules of the proceedings, etc.
The problems which caused the attorney to let his/her practice fall into such devastation are often the same dynamics which prevent the attorney from having the energy, focus and commitment to fully represent themselves and vigorously defend the Bar proceedings.
That said, yes, there are probably better "victims" that should be used, and not necessarily this attorney, for those seeking to make the broader point that current Bar leadership is too aggressive with charging and disciplining attorneys.
7:02 is right on the mark. Having read the briefs in this matter, this attorney was not charged with an offense that is disbarment worthy. This attorney was under serious mental health impairment and despair. We should not be disbarring those attorneys who we can; we should be disbarring those attorneys who we need to protect the public from.
With that said, 7:02 is correct also that there are much more flagrant cases of problems with the OBC than Ginapp's case. And that is frightening because this case is pretty bad.
Guest
Anonymous
November 1, 2017 5:03 pm
Rachel Sheppard/MGM shooting case: Looks like it is Munger, Tolles, Olson/Pisanelli Bice for MGM and Brian Nettles for Plaintiff. From the defense side, Pisanelli Bice and Campbell Williams seem to be the "go to" boutique civil litigation firms in town recently. MTO is a powerhouse in CA, but that doesn't necessarily translate to NV. I think Denton is a good judge for this type of case. Thoughts?
Denton is a fine judge. PB is fine for the Defense. Nettles will not end up being the face of the Plaintiffs I would suspect. And Campbell Williams is a fantastic boutique civil litigation firm but not for this case.
MTO has countless brilliant lawyers willing to work around the clock to put together great briefs with excellently reasoned arguments. While I respect Nevada firms, I don't think anyone has the bandwidth to do what MTO does (local firms don't have the quantity of uber-high-paying clients to justify it). PB has a lot of respect from local judges and 2 lawyers that are great at court. If I were MGM, I'd probably go a similar route.
Regarding holding bar counsel accountable, lawyers are "sui generis," a description that shields a multitude of sins against due process and relief. In other words, lawyers have fewer protections than non-lawyers. See Nevada Supreme Court Rule 106. Privilege and limitation.
"1. Privilege. All participants in the discipline process, including grievants, bar counsel staff, members of disciplinary panels, diversion and mentoring participants, and witnesses, shall be absolutely immune from civil liability. No action may be predicated upon the filing of a disciplinary complaint or grievance or any action taken in connection with such a filing by any of the participants. Except that any disclosures made pursuant to Rule 121(16) shall not be immune under this rule."
Guest
Anonymous
November 1, 2017 7:54 pm
Some weeks, the appellate courts will issue no opinions. 🙁
Guest
Anonymous
November 1, 2017 11:35 pm
Anyone have information on how Judge Potter’s ethics hearing went today?
Was surprised that the Nevada Supreme Court did not rule on the Pengilly issues when it had a Petition. I presumed nothing was going to come of the Pengilly Gun issue. I was wrong. Back in front of the Supreme Court.
I saw the synopsis of the State Bar adv. Geraldine Kirk-Hughes case on the NSC website. Although I've always thought Geraldine was a disaster waiting to happen, I think the due process and ex parte communication issues are important ones. I just wish it involved a more sympathetic individual.
9:47 again. I just scanned the docket for this case. It looks like a bloody mess, with Geraldine proceeding pro se. I don't have time to read much of it, but I fear this case/individual is the wrong vehicle for bringing these issues to the NSC.
I share your concerns. There are huge due process issues happening at the State Bar but am worried that making Geraldine the face of these issues will feed into Hunterton's narrative that we have to be draconian against attorneys because of the Geraldines of the world. Geraldine had Bill Terry at one time. Wish she would hire him back (even if just for the oral argument) because he knows due process and lawyer discipline as well as any attorney in this state.
Here is the synopsis for those interested. I have some interest in the issue of willfully withholding evidence from Kirk-Hughes in light of the Ginapp ruling below. Also the Report last week that Bar Counsel was meeting with Panels ex parte without the subject attorney in the room indicates that there are profound problems at the State Bar.
Details/Synopsis: Automatic review of a Southern Nevada Disciplinary Board hearing panel's recommendation for discipline in an attorney discipline matter. ISSUES: (1) Whether Kirk-Hughes' trust account records were improperly obtained; (2) whether the Bar deliberately withheld evidence from Kirk-Hughes; (3) whether an accused attorney has the right to appear before a screening panel; (4) whether the Bar improperly served Kirk-Hughes with the DCP Services Grievance; (5) whether the grievances were improperly joined; (6) whether the delay between the grievances' filing and hearing date violated Kirk-Hughes due process rights; (7) whether it was error for the Bar and not the hearing panel to draft the findings of fact, conclusions of law, and recommendation; (8) whether the Bar erred in investigating the Walker Grievance and not referring the matter to the Fee Dispute Committee; (9) whether the Bar erred when it allegedly did not submit the DCP Grievance to a screening panel; (10) whether the Bar Counsel's practice of providing a hearing packet to the hearing panel before the hearing is an impermissible ex parte communication; (11) whether Kirk-Hughes should prevail because the Bar apparently did not comply with NRAP 30(d); (12) whether Kirk-Hughes' Sixth Amendment confrontation rights were violated; (13) whether the panel violated Kirk-Hughes' procedural due process rights when it found she violated RPC 1.8(a) regarding Terri Drake; (14) whether Kirk-Hughes violated the Rules of Professional Conduct; (15) whether the panel's punishment recommendation is correct; and (16) whether the panel abused its discretion when it awarded fees and costs to the Bar. (Disclaimer: This synopsis is intended to provide only general information about this case before the Nevada Supreme Court. It is not intended to be all-inclusive or reflect all positions of the parties. To access the documents that have been filed in this matter, type the docket number into the court’s case search page: http://caseinfo.nvsupremecourt.us/public/caseSearch.do)
I read her opening brief. A word salad, as I feared.
Have you seen her website (http://www.kirkhugheslaw.com/). It contains several slivers of pure gold. Free Consolidation! By Turtle Stop! We get results (don't ask what kind)! A link to her real estate sales page!
Appears Bar Counsel just rolled over an attorney on potentially false pretenses. The State Bar files a complaint against Gabriel Ginapp alleging that he had agreed to review trust documents for a family friend and, during that conversation, had asked her for a loan in the amount of $39,000. Ginapp did not dispute that he took a loan from the woman, that he made two payments and made no more payments on the loan but said she was a family friend and not a client. Ginapp was having mental health issues at the time and did not participate in the Hearing. “At the disciplinary hearing, the State Bar presented evidence of the rule violations solely through the hearsay testimony of the State Bar's paralegal/investigator”; the State Bar not only never calls the woman as a witness but apparently was in possession of documentation from the woman in which the woman states that she was not a client of Ginapp but was just a family friend. OBC never introduced that evidence or even told the Panel that it had such documentation. The hearing panel enters a written decision recommending disbarment.
Once the Default Decision was entered against him, Ginapp asked the Office of Bar Counsel to set aside the Default for excusable neglect pursuant to Rule 60 and was told by the State Bar that his only recourse was to file a Brief with the Nevada Supreme Court which is false under Rule 60.
It took the Nevada Supreme Court fourteen months from filing to issue a Decision, but the Nevada Supreme Court noted that “if Ginapp is correct that the family friend from whom he took the loan was not his client at the time he solicited the loan, which, if true, would mean that [Ginapp] did not violate RPC 1.8(a).” Appears the State Bar had documents in its possession which show that there was no violation but refused to call the complainant as a witness (who would have said she was not a client) and refused to introduce the Complainant’s documentation. Ginapp has been dragged through the mud and confronted with a disbarment over what likely was never even a violation of the rule which the OBC charged. So who investigates the Office of Bar Counsel when they violate the rules?
http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=40232
This is equivalent to a Brady violation against the DA. If the DA can get civilly sued for stuff like this, why shouldnt the OBC?
Wow. If true then there should probably be a bar complaint against OBC. Who investigates that? Mueller?
Who investigates the Office of Bar Counsel? The briefs say that it was David Mincavage at the Office of Bar Counsel who did this.
Wait, being miserable in personal relationships, depression, and crying on the way to work isn't the norm for a defense lit associate? Hell, that's why I got out of that practice area.
If Mincavage did this, he needs to be investigated for violations of the Ethical Rules. I would be much more concerned about an attorney who hides evidence from a tribunal and presents hearsay in an effort to get his desired result than I would be about an attorney who took a loan from his Mom's friend. Sounds like Ginapp and Mincavage should switch positions at the hearing regarding who is defending his conduct.
It appears that the only two groups empowered to go after the OBC are the BOG and the NSC. Absent action from them, nothing will happen.
So the BOG regulates ethical violations by itself? No wonder the OBC has run amok.
In the next BOG elections, I will be voting (I never have before). I will vote for candidates solely on how they see the role of OBC. If no candidates are willing to express concern, my default will be to vote for challengers and only challengers.
Please keep telling me wonderful our OBC is.
If 9:48 is reporting this all accurately, I agree that basic rules and protections were ignored, and there is no excuse for that.
But the poster reaches well beyond that and pretty much argues that had the necessary rules and protections all been honored, and all proper procedure followed, that it is (supposedly) obvious that a finding of no discipline would(or, at least, should) have been made).
The support for this position seems to be based largely on the fact the NSC ruled that if the person in question was not a client, but only a merely friend, that there would be no violation of a particular rule. And on this point, let's not forget that when the State Bar files charges, they almost always assert violations of several rules, not just one.
9:48 validly points out apparent procedural and legal shortcomings and acts of apparent noncompliance by the Bar(which, admittedly, are inexcusable) but then makes the huge logical leap that had the Bar fully and properly complied with all rules and procedures, that the only fair result is complete exoneration of the attorney.
Again, I'm certainly not taken up for the Bar, and if this matter has been reported accurately, it seems as if the attorney should have recourse so his position can be fully and properly advanced. But, candidly, the presented fact pattern reeks from a mile away. I want to offer the following for 9:48's consideration:
1. Understanding that the Bar ignoring basic rules and protections and taking certain short cuts is not to be tolerated, this issue becomes far more nuanced and complex when
the attorney in question seeks to assert none of those rights, does not even appear for the hearing, which he realizes creates a template where the Bar may then attempt to portray the matter as more of a default type situation, with all the charging allegations essentially conceded to.
2. In these administrative type matters, which differ to a degree from procedures and protections in litigation, the Bar relies heavily on the Investigator. If the attorney wants to produce the complaining witness to say that he/she was not a client of attorney, he should have done so, rather than ignoring this entire process where his license and livelihood is in jeopardy.
3. He complains that after all this, wherein he does absolutely nothing to defend himself or his license or otherwise participate in the proceedings, that the State Bar should simply reopen the entire matter ad accept his conclusion that he suffered emotional problems. Did he offer any medical/psychological proof that these issues precluded him from participating in the proceedings, or any evidence that he is now miraculously cured and can fully participate? The State Bar need not reopen it, but attorney does have recourse beyond that and should presumably pursue that.
4. He insists that the person was not a client, which conveniently ignores the question of who complained to the Bar in the first place–the person who will now testify that they were not a client? How much sense does that make? They ask him to review a trust and offer advice(sufficient to establish they are a client, at least arguably so). He renders advice, and then takes a loan from the client, apparently without a written agreement to be viewed by separate counsel for the lender, fails to pay back much of the $39,000. and this fool thinks he can blow off the entire disciplinary proceeding, and then after the fact claim he had(apparently totally unsubstantiated) emotional problems and that no one should give a shit if he defaults on the loan because he is going to hang his entire argument on his representation that the person was not a client?
He does not deserve to lose his license for this, but his black and white world view, as well as that of 9:48, that the State Bar is the total big bad ogre and that attorney did absolutely nothing wrong is preposterous beyond measure.
3:20, I agree with many of your points but would offer as consideration the following points. No one said that Ginapp did nothing wrong. He failed to participate in Bar Proceedings, which is a violation unto itself. The excusability of that failure is debateable but there is no question but that he should not have ignored the proceedings. The Briefs state that he should not have ignored the proceedings.
1. Agree. Attorneys have (Ginapp had) a duty to participate in the process. But like in civil or criminal litigation, merely because the other side is not participating is not grounds which allows one to flout the standards of fairness to the Opposing Party and the Tribunal. In Discipline matters, there should be no nuance in cutting corners. Ginapp (and his ex-wife) have asserted that the SBN was aware that Ginapp was having mental health issues and charged forward anyway without disclosing that. The written statements from the Lender allegedly state that she was not a client, yet the Investigator said that the woman was a client at the time of the loan. Hearsay is never admissible; false hearsay is even worse. An Application for Default Judgment has to come from the client, not the attorney. When Mincavage just threw his Paralegal up there and allowed her to testify to facts (that appear false) that cant be allowed. In fact, OBC is supposed to be seeking justice and protect the Bar(as opposed to a Plaintiff in a civil default who is seeking to win). Mincavage's desire to "win" appears to have clouded any sense of protecting the Bar and treating all of its members fairly.
2. Agree some. Regardless of the issues, Ginapp should have participated in the proceeding. He should have written something on a piece of paper and filed it. But the burden to produce the Complainant and get the facts on the record was on the Bar. As the Supreme Court notes, the burden of introducing admissible (or best) evidence is on the State Bar, not Ginapp. The Investigator cannot testify to hearsay of what the Complainant meant. For example, the timeline of events of when the monies were paid and when any work was requested was crucial. Ginapp alleges in his Brief that the information testified to by the Investigator is directly contrary to what the Complainant states in her Complaint and the written statements from the Complainant. That is somewhere between hearsay and perjury potentially. Too often these hearings (as you note) are rubber stamps by the Panel of whatever the SBN wants. I would hope the Panel would at least want to see the true facts and evidence.
3. Disagree. Ginapp states (and provides evidence) of his mental health treatment records and that his health was known by Mincavage prior to the Hearing and that none of these issues were brought to the Panel's attention. Mincavage has the same duties to deal fairly with the tribunal and opposing parties as any other attorney; arguably they should have higher duties under these circumstances. You ask "Did he offer any medical/psychological proof that these issues precluded him from participating in the proceedings"– yes according to the record he did.
4. Completely disagree. You have the timeline backwards when you state "[t]hey ask him to review a trust and offer advice. . . He renders advice, and then takes a loan from the client, apparently without a written agreement to be viewed by separate counsel for the lender." To the contrary, the timeline appears to be that woman loans him money (when there was no client relationship), he fails to pay it back, woman then says can you review a trust. If she wasn't a client at the time that the loan was made, it was not a violation of Rule 1.8. This is why timing matters; this is why competent evidence, testimony and witnesses matter. You likewise claim that Ginapp blew "off the entire disciplinary proceeding, and then after the fact claim he had(apparently totally unsubstantiated) emotional problems". Once again, the briefs in the case show that you have the timeline backwards. He had mental health problems (under the care of physicians), tells the SBN of his issues, SBN proceeds with the Hearing anyway which Ginapp fails to attend. Ginapp should not have blown off the Hearing (no matter what his mental state). The fact that OBC went after a disbarment on these facts is abominable. .
There are close calls in matters. This is not a close call. The allegations in this case look pretty bad for the OBC.
But if the person(who wanted the trust reviewed) is now willing to help exonerate the attorney, and claim that he/she was never a client, then who started this whole process anyway? It could not have been the Bar by itself since someone would have needed to make them aware of it and file the complaint.
Something makes no sense, even if everything you say is accurate(and I'm assuming it is, and is established by the record).
Wasn't this person, with the trust, the one who filed the Bar complaint? And if they are willing to concede the point that they did not technically consider themselves to be a client, that does not mean that they are now automatically a witness in support of the attorney,or that they are still not aggrieved.
The Bar, despite such representation by the witness, would probably seek to apply a more supposedly objective standard of when a limited attorney/client relationship is established. The subjective view of the lay person, who probably does not understand the nuances of this matter, is not dispositive. Often when people concede the point that they did not technically consider themselves a client(since many lay people take a real formal view of when attorney/client relationships commence and they believe written engagement contract and payment to the attorney is necessary), within a few more questions it becomes painfully obvious the same person who just said they did not technically consider themselves to be a client, were relying on the advice they received from the attorney(who they supposedly are not a client of).
So, anyone who thinks that the subjective "yes" or "no" answer of a lay person as to whether they are technically a client is conclusive, knows little of the writings and case law in that area. Bar Counsel seemingly knows, so anyone challenging them on this matter needs to research the area.
And this whole "client" vs."non-client" distinction totally ignores that the Bar can pursue him for other possible violations surrounding that if he has a contract(in this case a substantial loan) with a lay person, that due to the attorneys dramatically superior negotiating and knowledge postion, that some level of fiduciary duty arises. At the absolute minimum he was required to place in writing that he/she can and should have the loan contract reviewed by independent counsel. No indication the attorney did that. All we know is that he defaulted and most of it remains unpaid. For him and his supporters to not understand that this concern is very valid and exists as a possible separate violation regardless of how the "client" vs. "non-client" issue is resolved, also does not know the law in this area and needs to research it. Trust me, Bar Counsel knows this, so attorney and those representing him better know it too, and be prepared.
Just because a person makes a Complaint to the State Bar does not make them a client. Opposing Counsel can make complaints. Members of the public make complaints. Heck I had a corporation file a Complaint against me because I refused to agree that their forged contract was ever signed by me. People file Bar Complaints for any number of reasons, including that they just need some help getting an answer from an attorney.
Once again, could there have been other violations by Ginapp? Sure, of which one was not responding to Bar Counsel which is appears was clearly violated. But it appears that a failure to respond to Bar Counsel turned this case into a disbarment, meaning that we apparently have Det. Jeff Payne and Lt. James Tracy now running the Office of Bar Counsel. The issue isn't that the SBN cannot conduct a discipline investigation and have a hearing. The issue is why is the OBC conducting hearings in which it appears to be burying evidence and not giving the Tribunal the full and accurate facts. What would the woman have said in the Bar Hearing? I have no idea because that never happened. I am not prejudging the facts. All of those nuances of attorney/client relationships should have been borne out in the facts; however they weren't because the whole record was what the Bar Investigator said the facts were. Maybe this woman really was a client; however those facts and determinations need to come from competent evidence which was not presented and appears to have been buried by Mincavage.
If the Supreme Court found enough troubling aspects to remand the matter back, I do not trust anything that the State Bar asserted in this matter.
No, she is not a client merely because she made the complaint. But she, or someone else, made this complaint, and once they did, this apparent "client" vs. "non-client" distinction somehow became somewhat important.
I don't think what (apparently) occurred here at all justifies disbarment, but, yes, once he doesn't respond or participate,
all the charging allegations(even if some are really distorted, and some are actually factually false) are deemed admitted and become the operative reality of the case, even if they are not the actual reality of what occurred.
There is no doubt that failure to respond is a separate violation which, in addition to being taken very seriously as a violation, provides the justification for the Bar to conclude that all the factual allegations are true, and are essentially conceded.
And it's relatively easy to respond. It's not like responding to an appeal, which all can be quite technical and involved. When they sent him their first letter, all he had to do was send a dated letter in response. That's it. And for cases that eventually proceed to a formal complaint by the Bar, he just had to file like a one page response denying most of the substantive allegations. He obviously blew off multiple letters asking for a response, blew off the formal complaint, appeared for no hearings, made no contact whatever. So, if this was all caused by emotional stress, and he therefore could not take the most extremely minimal steps to try to salvage his career, is someone like this, after just the passage of a short period of time, really in a position to diligently and consistently protect the critical rights of clients? If so, where's the conclusive med./psych. reports establishing that a handful of months back he could not spend five minutes to save his career, but he can now be trusted with complex legal matters on behalf of multiple clients?
Point being, some appear to be suggesting that this attorney should be the poster boy for issues concerning the Bar's alleged ignoring of rules and safeguards, and being too aggressive with prosecutions and penalties.
Those are certainly issues worthy of discussion, but you need a totally different poster boy. After all, please consider that those who have weighed in on this matter in support of the attorney, have spent far more time, thought and zeal in arguing to protect the attorney's livelihood and license than the attorney himself ever did during all relevant time periods in question.
There must be much stronger cases that can be made against the Bar as to other disciplined attorneys, but not this one. If this is the best "victim" that one can come up with, current Bar leadership much be a lot more fair and even-handed than I have been lead to believe.
That all said, the Bar should always remember that their mission statement does not include being punitive. So if they can see their way to ever let this attorney practice, while still adequately protecting his future clients and the public at large, that could make infinite sense. After all, it is the only way the lender here could ever recoup most of the $39,000.If the attorney can't practice, good luck ever collecting it.
I would bet the farm that the lender would much prefer if they are reimbursed(even if it means the attorney can still practice), rather than having the empiric victory that the attorney did bad, will never practice again, but, by the way, you will probably never recoup any more of your $39,000.
Some potentially real good points in there, but I am with 5:54. If the NSC(who some insist had one or more justice stress to Bar Counsel to be more aggressive),sees enough problems to remand it, then where there is smoke there may very well be fire.
We shall see how it plays out.
I would mention that I hear what you are saying about the attorney apparently, at the time, doing little or nothing to save his own career. But a common thread of many cases which result in disbarment is that the attorney is in such a bad, dark place in his/her life that they compound their own problems by not defending themselves. They often seem to be suffering emotional inertia, and even emotional paralysis. There are not many case where someone is permanently disbarred wherein they aggressively fought the whole way, complied with all rules of the proceedings, etc.
The problems which caused the attorney to let his/her practice fall into such devastation are often the same dynamics which prevent the attorney from having the energy, focus and commitment to fully represent themselves and vigorously defend the Bar proceedings.
That said, yes, there are probably better "victims" that should be used, and not necessarily this attorney, for those seeking to make the broader point that current Bar leadership is too aggressive with charging and disciplining attorneys.
7:02 is right on the mark. Having read the briefs in this matter, this attorney was not charged with an offense that is disbarment worthy. This attorney was under serious mental health impairment and despair. We should not be disbarring those attorneys who we can; we should be disbarring those attorneys who we need to protect the public from.
With that said, 7:02 is correct also that there are much more flagrant cases of problems with the OBC than Ginapp's case. And that is frightening because this case is pretty bad.
Rachel Sheppard/MGM shooting case: Looks like it is Munger, Tolles, Olson/Pisanelli Bice for MGM and Brian Nettles for Plaintiff. From the defense side, Pisanelli Bice and Campbell Williams seem to be the "go to" boutique civil litigation firms in town recently. MTO is a powerhouse in CA, but that doesn't necessarily translate to NV. I think Denton is a good judge for this type of case. Thoughts?
Denton is a fine judge. PB is fine for the Defense. Nettles will not end up being the face of the Plaintiffs I would suspect. And Campbell Williams is a fantastic boutique civil litigation firm but not for this case.
MTO has countless brilliant lawyers willing to work around the clock to put together great briefs with excellently reasoned arguments. While I respect Nevada firms, I don't think anyone has the bandwidth to do what MTO does (local firms don't have the quantity of uber-high-paying clients to justify it). PB has a lot of respect from local judges and 2 lawyers that are great at court. If I were MGM, I'd probably go a similar route.
Regarding holding bar counsel accountable, lawyers are "sui generis," a description that shields a multitude of sins against due process and relief. In other words, lawyers have fewer protections than non-lawyers. See Nevada Supreme Court Rule 106. Privilege and limitation.
"1. Privilege. All participants in the discipline process, including grievants, bar counsel staff, members of disciplinary panels, diversion and mentoring participants, and witnesses, shall be absolutely immune from civil liability. No action may be predicated upon the filing of a disciplinary complaint or grievance or any action taken in connection with such a filing by any of the participants. Except that any disclosures made pursuant to Rule 121(16) shall not be immune under this rule."
Some weeks, the appellate courts will issue no opinions. 🙁
Anyone have information on how Judge Potter’s ethics hearing went today?
Nope but would be very interested to know.
Was surprised that the Nevada Supreme Court did not rule on the Pengilly issues when it had a Petition. I presumed nothing was going to come of the Pengilly Gun issue. I was wrong. Back in front of the Supreme Court.
http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=44549
State Bar survey on random trust account audits is out.