In Re: Discipline of Timothy Titolo ( 2015 )

 v. Forest Hills Subdivision, 129 Nev., Adv. Op. 9, 294 P.3d 427, 432 (2013);
Weddell v. H20, Inc., 128 Nev., Adv. Op. 9, 271 P.3d 743, 748 (2012);
Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009). In
contrast, a hearing panel's conclusions of law and recommended discipline
are reviewed de novo. SCR 105(3)(b). Whether particular factual findings
establish an RPC violation is a question of law and therefore is subject to
de novo review under SCR 105(3)(b). See LK Operating, LLC v. Collection
Group, LLC, 331 P.3d 1147, 1157 (Wash. 2014) (stating, in legal
malpractice action, that "[w]hether a given set of facts establish an RPC
violation is a question of law subject to de novo review"); see also Attorney
Grievance Comm'n of Maryland v. Korotki, 569 A.2d 1224, 1234 (Md. Ct.
App. 1990) (indicating that whether legal fee violates disciplinary rule is a
question of law).
We defer to the hearing panel's findings of fact in this matter
as they are supported by substantial evidence and are not clearly
erroneous. Based on those findings, we agree with the panel's conclusions
that Titolo violated RPC 1.15 and RPC 8.4. But, we reject the panel's
conclusions that Titolo violated RPC 1.3 and RPC 1.4 as alleged in the
third complaint, because there are no relevant findings of fact or clear and
convincing evidence in the record to support those violations. We also
reject the hearing panel's conclusion that Titolo violated RPC 8.1(b)
because the relevant findings of fact and the record do not establish that
Titolo "knowingly failled] to respond" to the State Bar's demand for
information. See RPC 1.0(f) (providing that "[k]nowingly . . denotes
actual knowledge of the fact in question").
Turning to the recommended discipline, we must weigh "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
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mitigating factors." In re Discipline of Lerner, 124 Nev. 1232, 1246, 197
P.3d 1067, 1077 (2008). Of particular import, Titolo violated a significant
duty owed to his clients under RPC 1.15—to preserve their property. An
attorney's abdication of his fiduciary responsibilities to a spouse "cannot
be tolerated" because those responsibilities are "non-delegable." Matter of
Stransky, 612 A.2d 373, 376 (N.J. 1992). It appears that all clients and
lienholders were made whole and therefore there was no actual injury, but
there was the potential for injury. Even if Titolo's mental state is viewed
as negligence,' we are convinced that the aggravating circumstances found
by the hearing panel (prior disciplinary offenses, patter of misconduct,
multiple offenses, and substantial experience in the practice of law)
warrant suspension over a lesser form of discipline. Compare ABA
Standards for Imposing Lawyer Sanctions, Standard 4.12 (suspension
appropriate where "lawyer knows or should know that he is dealing
improperly with client property and causes injury or potential injury to a
client"), with id. Standard 4.13 (reprimand appropriate where "lawyer is
negligent in dealing with client property and causes injury or potential
injury to a client"). We also are troubled by Titolo's attitude toward his
responsibilities under RPC 1.15. We therefore agree with the hearing
panel that a suspension is appropriate to protect the public and the legal
iTitolo's mental state could be characterized as "knowledge" in that
he was aware that he had delegated all of his responsibilities under RPC
1.15 to his wife and following the first bar complaint he was aware that
there were problems with his trust account and that his wife was not
being forthright. See ABA Standards for Imposing Lawyer Sanctions,
Compendium of Professional Responsibility Rules and Standards 452
(2015) (defining "knowledge" as "the conscious awareness of the nature or
attendant circumstances of the conduct but without the conscious objective
or purpose to accomplish a particular result").
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profession but considering all of the relevant circumstances, we are not
convinced that a three-month suspension is sufficient. See State Bar of
Nev. v. Claiborne, 104 Nev. 115, 213, 756 P.2d 464, 527-28 (1988)
(describing purpose of attorney discipline).
We hereby suspend attorney Timothy Titolo from the practice
of law in Nevada for a period of six months commencing from the date of
this order. Titolo shall (1) provide the State Bar with an audit of his trust
accounts for the last five years and complete 30 hours of CLE in law office
management 2 within the next two years and (2) pay the costs of the
disciplinary proceedings within 30 days from the date of this order. He
also shall comply with SCR 115. The State Bar shall comply with SCR
121.1.
It is so ORDERED.
, C.J.
Parraguirre Dou
Cherry Gibbons
, J.
2 This
CLE requirement is in addition to the annual minimum CLE
requirements set forth in SCR 210.
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SAITTA, J., dissenting:
I agree that the hearing panel's recommendation of a three-
month suspension is not sufficient, but I dissent because in my opinion the
six-month suspension imposed by the court also is not adequate to protect
the public and the integrity of the profession. In my view, a one-year
suspension would be appropriate in this case.
Saitta
cc: Chair, Southern Nevada Disciplinary Board
William B. Terry, Chartered
Stan Hunterton, Bar Counsel, State Bar of Nevada
Kimberly K. Farmer, Executive Direct, State Bar of Nevada
Perry Thompson, Admissions Office, U.S. Supreme Court
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