In Re: Discipline of Colbern Stuart ( 2014 )

 admitted, see State Bar of California Rule 5.82(2) (2011), resulting in the
California Bar later filing a petition to have hiin disbarred. 1 See State Bar
of California Rules 5.83(C)(1) and 5.85(A) (2011) (requiring California bar
counsel to file a petition for disbarment if an attorney fails, within 180
days, to have a default entered in a disciplinary proceeding set aside or
vacated).
The admitted facts demonstrate that Stuart was convicted of
17 counts of harassment because he initiated or sent approximately 21
telephone calls or e-mails to his ex-wife •that were threatening and
intended to harass or frighten her. While the State Bar Court found that
repeated harassing by telephone or e-mail does not always involve conduct
warranting discipline, it concluded that Stuart's harassment of his ex-wife
did involve moral turpitude, and thus, warranted discipline. It further
determined that because Stuart failed to have the default entered against
him set aside, disbarment was warranted under State Bar of California
Rule 5.85. Following the State Bar Court's entry of an order
recommending that Stuart be disbarred, the California Supreme Court
entered an order disbarring him from practicing law in California.
Nevada disciplinary proceedings
Before receiving the notice of disbarment, the Nevada Office of
Bar Counsel filed a petition in this court under SCR 111(4) based on
Stuart's California convictions, which was docketed as Docket No. 60061.
Because this court's initial review of that matter indicated that Stuart's
'The State Bar Court order recommending that Stuart be disbarred
notes that, shortly after default was entered, Stuart made two calls to the
State Bar stating his intent to challenge the default and submitted a
pleading entitled "Opposition" to the State Bar, which contained no proof
of service and was not filed with the State Bar Court. Stuart, however,
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never filed a request to have the default entered against him set aside.
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convictions did not appear to meet the definition of serious crime set forth
in SCR 111(6), but were not for minor offenses and adversely reflected on
his fitness to practice law, he was directed to show cause why he should
not be temporarily suspended and referred for discipline in accordance
with SCR 111(9). See In re Discipline of Stuart, Docket No. 60061 (Order
to Show Cause, October 18, 2012). Stuart did not respond to the show
cause order, however, and this court ordered him temporarily suspended
and referred him to the Southern Nevada Disciplinary Board for further
proceedings based on the California convictions and his failure to respond
to the show cause order. See id. (Order of Temporary Suspension, June
21, 2013).
Following Stuart's California disbarment, Nevada bar counsel
filed this petition for reciprocal discipline, noting that Stuart's conviction
violated SCR 111 (regarding attorneys convicted of crimes) and RPC 8.4(b)
(providing that a criminal act that adversely reflects on an attorney's
fitness as a lawyer is professional misconduct). The petition correctly
notes that the California State Bar Court order recommending Stuart's
disbarment identifies no aggravating factors and indicates that Stuart had
no record of prior discipline. Stuart did not file a response to the petition
and the time to do so has passed. 2 See SCR 114(3) (allowing an attorney
15 days to file a response to a petition for reciprocal discipline)
SCR 114 mandates the imposition of identical reciprocal
discipline unless one of four exceptions applies. We conclude that one of
the four exceptions exists in this matter, specifically, that the misconduct
warrants different discipline in this state. SCR 114(4)(c). In particular,
2 All orders and other documents mailed to Stuart by this court in
both this matter and the related proceeding in Docket No. 60061 have
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been returned to this court.
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we conclude that disbarment is not warranted because disbarment in
Nevada is not equivalent to the disbarment imposed on Stuart in
California, as disbarment in Nevada is irrevocable while in California an
attorney may seek reinstatement after five years. See SCR 102(1);
California Rules of Procedure of State Bar, Rule 5.442(B).
Accordingly, we grant the petition for reciprocal discipline, but
instead impose discipline in Nevada that is equivalent to the disbarment
discipline imposed in California. Therefore, Stuart is hereby suspended
from the practice of law for five years. Stuart must petition this court for
reinstatement pursuant to SCR 116. Stuart shall comply with SCR 115
and the State Bar of Nevada shall comply with SCR 121.1.
It is so ORDERED.
, C.J.
Pickering Hardesty
Parraguirre Douglas
Saitta
cc: David A. Clark, Bar Counsel
Colbern Cox Stuart, HI
Jeffery R. Albregts
Kimberly K. Farmer, Executive Director, State Bar of Nevada
Perry Thompson, Admissions Office, United States Supreme Court
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