In Re: Discipline Of Brian C. Padgett ( 2022 )

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IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF DISCIPLINE OF | No. 83347
BRIAN C. PADGETT, BAR NO. 7474.
FILED |
MAY 19 2022
ORDER OF DISBARMENT
This is an automatic review of a Northern Nevada Disciplinary
Board hearing panel’s recommendation that attorney Brian C. Padgett be
suspended from the practice of law for five years based on violations of RPC
1.15 (safekeeping property), RPC 5.1 (responsibilities of partners,
managers, and supervisory lawyers), RPC 8.1 (bar admission and
disciplinary matters), and RPC 8.4 (misconduct). The panel recommends
that this five-year suspension run consecutively to the five-year suspension
Padgett is currently serving for other violations. See In re Discipline of
Padgett, No. 81918, 2021 WL 2070641 (Nev. May 21, 2021) (Order of
Suspension). We first address Padgett’s arguments that he contends
warrant setting aside the panel’s findings of fact, conclusions of law, and
recommendation and providing him a new hearing on the underlying
disciplinary complaint.
Padgett first argues that the panel’s findings of fact,
conclusions of law, and recommendation should be set aside because the
disciplinary proceedings did not afford him due process. Specifically,
21-I1S 340
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(01 197A 131 Nev. 371, 386, 352 P.3d 627, 638
(2015) (explaining that “there is no constitutional right to peremptory
challenges”). Moreover, Padgett waived his opportunity to exercise
peremptory challenges by failing to respond to the State Bar’s complaint,
resulting in the filing of a notice of intent to proceed on a default basis. See
Nevada State Bar Disciplinary Rules of Procedure (DRP) 13(a). Despite
that waiver, the record reflects that the panel chair afforded Padgett an
opportunity to submit any peremptory challenges at the prehearing
conference and Padgett did not do so. Second, any evidence precluded by
the panel chair resulted from Padgett’s unjustified failure to comply with
the procedural rules governing disciplinary proceedings and the panel
chair’s orders. See NRCP 16.1(a)(1); NRCP 37(c)(1); see also DRP 17(a).
Finally, considering the circumstances of the COVID-19 pandemic,
conducting the disciplinary hearing via videoconferencing did not deny
Padgett a fair hearing. See Chaparro v. State, 137 Nev., Adv. Op. 68, 497
P.3d 1187, 1191-92 (2021) (rejecting a due process challenge to a criminal
sentencing hearing held over Zoom due to the COVID-19 pandemic). And
any issues that occurred during the hearing were the result of Padgett
refusing to participate in good faith.
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Turning to the remainder of the panel’s decision, the State Bar
has the burden of showing by clear and convincing evidence that Padgett
committed the violations charged. See In re Discipline of Drakulich, 111
Nev. 1556, 1566, 908 P.2d 709, 715 (1995). We defer to the panel’s findings
of fact, SCR 105(3)(b), and will not set them aside unless they are clearly
erroneous or not supported by substantial evidence, see In re Discipline of
Colin, 135 Nev. 325, 329, 448 P.3d 556, 560 (2019). We review de novo a
disciplinary panel’s conclusions of law and recommended discipline. SCR
105(3)(b). The record shows that the State Bar presented substantial
evidence that Padgett violated the rules referenced above by (1) failing to
safeguard client documents, (2) failing to ensure a subordinate attorney
conformed to the rules of professional conduct, (3) failing to fully respond to
the State Bar’s investigation, and (4) making multiple misrepresentations
to the State Bar.
In considering the appropriate discipline, we weigh four factors:
“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
mitigating factors.” In re Discipline of Lerner, 124 Nev. 1232, 1246, 197
P.3d 1067, 1077 (2008). We must ensure that the discipline is sufficient to
protect the public, the courts, and the legal profession. State Bar of Nev. v.
Claiborne, 104 Nev. 115, 213, 756 P.2d 464, 527-28 (1988) (explaining the
purpose of attorney discipline).
Padgett knowingly violated duties owed to his clients
(safekeeping property and responsibilities of partners, managers, and
supervisory lawyers) and the legal profession (bar admission and
disciplinary matters, and misconduct). The record supports the panel’s
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conclusion that Padgett’s misconduct resulted in actual injury to his clients
and the legal profession.
Before considering aggravating and mitigating circumstances,
suspension is the baseline sanction for Padgett’s misconduct. See Standards
for Imposing Lawyer Sanctions, Compendium of Professional Responsibility
Rules and Standards, Standard 6.12 (Am. Bar Ass’n 2017) (“Suspension is
generally appropriate when a lawyer knows that false statements or
documents are being submitted to the court[,] . . . takes no remedial action,
and causes injury or potential injury to a party to the legal proceeding, or
causes an adverse or potentially adverse effect on the legal proceeding.”).
The panel found, and the record supports, eight aggravating circumstances
(prior disciplinary offenses, dishonest of selfish motive, a pattern of
misconduct, multiple offenses, bad faith obstruction of the disciplinary
proceeding by intentionally failing to comply with rules or orders, refusal to
acknowledge the wrongful nature of conduct, substantial experience in the
practice of law, and indifference to making restitution), and no mitigating
circumstances. Considering all the factors, especially the fact that Padgett
is already serving a five-year suspension for other offenses, we conclude that
the scope of Padgett’s misconduct and the aggravating circumstances
warrant an upward deviation from the baseline sanction.
Accordingly, we disbar attorney Brian C. Padgett from the
practice of law. Such disbarment is irrevocable. SCR 102(1). Further,
Padgett shall pay the costs of the disciplinary proceedings, including $3,000
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cc: Chair, Northern Nevada Disciplinary Board
Brian C. Padgett
Bar Counsel, State Bar of Nevada
Executive Director, State Bar of Nevada
Admissions Office, U.S. Supreme Court
1In reaching this disposition, we have considered Padgett’s other
argument that the State Bar refused to negotiate a settlement and conclude
it lacks merit.