In Re: Discipline of Harvey Whittemore ( 2014 )

 conclusion of the hearing, the panel recommended that the imposition of
discipline be postponed until Whittemore's appeal of his criminal matter,
currently pending in the Ninth Circuit Court of Appeals, is concluded. See
SCR 111(8) ("The panel may, for good cause, postpone the proceeding until
all appeals from the conviction have been concluded."). The panel also
recommended that Whittemore's temporary suspension, previously
imposed by this court, be lifted pending the conclusion of his criminal
appeal. The parties appear to agree that service of the panel's
recommendation and decision occurred on January 31, 2014, the same day
it was filed with the State Bar,
On March 4, 2014, the record of the disciplinary proceedings
was filed in this court. Whittemore filed a motion to dismiss the instant
matter for lack of jurisdiction.' Whittemore argues that this matter is
governed by SCR 105(3)(a), which provides that where a recommendation
from a disciplinary panel does not contemplate public reprimand,
suspension, or disbarment, then "No the extent not inconsistent with
these rules, an appeal from a decision of a hearing panel shall be treated
as would an appeal from a civil judgment of a district court and is
governed by the Nevada Rules of Appellate Procedure." To initiate an
appeal from a civil judgment, Whittemore contends, the Nevada Rules of
Appellate Procedure require the appealing party to file a notice of appeal
with the district court or, in the instant matter, with the disciplinary
panel. Because the State Bar never filed a notice of appeal, Whittemore
"The parties have also briefed the matter as allowed under SCR
105(3).
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argues that this court lacks jurisdiction to review this matter and the
disciplinary panel's recommendation and decision is "final and effective."
The State Bar argues that this matter is subject to our
automatic review, under SCR 105(3)(b), wherein our review is "commenced
by bar counsel forwarding the record of the hearing panel proceedings to
the court within 30 days of entry of the decision." We agree with the State
Bar. 2
Under SCR 105(3)(b), a disciplinary panel's recommendation
of suspension subjects that recommendation to our automatic review.
Although the panel did not recommend suspension, its recommendation
that Whittemore's temporary suspension be lifted likewise brings the
decision under our automatic review. See SCR 111(7) (providing that "[f]or
good cause, the court may set aside its order" of temporary suspension
(emphases added)); cf. In re Kenick, 100 Nev. 273, 275, 680 P.2d 972, 974
(1984) (stating that "any order of suspension or disbarment may only be
made by this court"). Additionally, the panel's decision to postpone the
disciplinary proceedings until Whittemore's criminal appeal is resolved
also subjects the decision to our automatic review. SCR 111(8) states that
a "panel may, for good cause, postpone the [disciplinary] proceeding until
all appeals from the conviction have been concluded." The panel's good-
cause determination is subject to this court's review; to proceed otherwise
2 Contrary
to Whittemore's contention, the record of the disciplinary
proceedings was timely filed by the State Bar. Although not formally filed
in this court until March 4, 2014, the record was received for filing, via our
electronic filing system, on February 27, 2014, within 30 days of January
31, 2014, the date the panel's recommendation and decision was filed with
the State Bar. See NEFCR 8(a).
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would be inconsistent with this portion of SCR 111. Accordingly, we deny
Whittemore's motion to dismiss this matter, and we will proceed to review
the panel's recommendation and decision.
This court's automatic review of a disciplinary panel's findings
and recommendations is de novo. SCR 105(3)(b); In re Stuhff, 108 Nev.
629, 633, 837 P.2d 853, 855 (1992). "Although the recommendations of the
disciplinary panel are persuasive, this court is not bound by the panel's
findings and recommendation, and must examine the record anew and
exercise independent judgment." In re Discipline of Schaefer, 117 Nev.
496, 515, 25 P.3d 191, 204 (2001).
After review of the record, we reject the disciplinary panel's
recommendation that Whittemore's temporary suspension be lifted while
his criminal appeal is pending. A temporary suspension imposed under
SCR 111 remains in effect until formal disciplinary proceedings are
completed or until it is lifted by order of this court. See SCR 111(7).
Whittemore was already afforded the opportunity to show cause for this
court to set aside his temporary suspension, and he failed to meet his
burden. See In re Discipline of Whittemore, Docket No. 64154 (Order
Denying Petition for Reinstatement, November 13, 2013). Our decision to
deny Whittemore's petition to set aside his temporary suspension was
made after careful consideration of the facts as presented to us by
Whittemore and the State Bar and of the law pertaining to the lifting of
temporary suspensions. There has been no significant occurrence between
the filing of our order denying reinstatement and the conclusion of the
disciplinary proceedings that would cause us to now rethink our position.
The panel's finding of good cause to postpone the disciplinary
proceedings was specifically based on United States District Court Judge
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Hicks's December 31, 2013, order in Whittemore's criminal matter
allowing Whittemore to stay out of prison pending the resolution of his
criminal appeal. Recently, it came to this court's attention that Judge
Hicks had entered an order directing Whittemore to report to prison in
August 2014, regardless of whether his criminal appeal has been resolved.
Based on this, the court ordered both parties to file status reports
indicating if and how Judge Hicks's most recent order affects the party's
positions in the instant matter. Both parties timely responded and each
attached, as Exhibit 1 to their status reports, a copy of Judge Hicks's June
5, 2014, order directing Whittemore to report to prison.
After review of the record, including the parties' status reports
and Whittemore's response, we reject the panel's finding of good cause and
its recommendation that the disciplinary proceedings be postponed
pending the resolution of Whittemore's criminal appeal. We again refer
this matter to the same panel of the Northern Nevada Disciplinary Board
for the initiation of formal disciplinary proceedings in which the sole issue
to be determined is the extent of discipline to be imposed. SCR 111(7), (8).
We reiterate the mandate of SCR 111(5), which states that "[a] certified
copy of proof of a conviction is conclusive evidence of the commission of the
crime stated in it in any disciplinary proceeding instituted against an
attorney based on the conviction." (Emphasis added). The SCR 111
proceeding is not the proper forum for relitigating the underlying criminal
conviction in the instant matter. 3
3 This
is our final disposition of this matter. Any new proceedings
concerning Whittemore shall be docketed under a new docket number.
Whittemore's motion to expedite the decision of this matter is granted in
continued on next page. .
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It is so ORDERED. 4
J.
Cherry Saitta
cc: Thomas Susich, Chair, Northern Nevada Disciplinary Board
David A. Clark, Bar Counsel
Kimberly K. Farmer, Executive Director, State Bar of Nevada
Bradley Drendel & Jeanney
Echeverria Law Office
Perry Thompson, Admissions Office, United States Supreme Court
. . . continued
that this court has resolved this matter as expeditiously as its docket
allowed.
4The Honorable Ron Parraguirre, Justice, has voluntarily recused
himself in this matter.
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HARDESTY, J., concurring in part and dissenting in part:
I concur in the majority's decision to deny Whittemore's
motion to dismiss for lack of jurisdiction and in its determination to again
refer the matter to the panel of the Northern Nevada Disciplinary Board
to recommend discipline, if any. However, for the reasons expressed in my
dissent to this court's November 13, 2013, Order Denying Petition for
Reinstatement in Docket No. 64154, the reasons discussed on pages 23-43
of Whittemore's answering brief, and the reasons expressed by the
disciplinary panel in support of its recommendation, I would lift
Whittemore's temporary suspension and allow him to practice law, subject
to the stated limitations, pending final disposition of the disciplinary
proceedings or further order of this court. Accordingly, I dissent from that
part of the majority's decision rejecting the recommendation to lift
Whittemore's temporary suspension.
titA2N
Hardesty
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