In re Arabia

• Citation: 495 P.3d 1103
• Decision Date: 23 September 2021
• Docket Number: No. 82173,82173
• Parties: In the MATTER OF DISCIPLINE OF Christopher R. ARABIA, Bar No. 9749.
• Court: Supreme Court of Nevada

495 P.3d 1103

In the MATTER OF DISCIPLINE OF Christopher R. ARABIA, Bar No. 9749.

No. 82173

Supreme Court of Nevada.

FILED SEPTEMBER 23, 2021

Pitaro & Fumo, Chtd., and Thomas F. Pitaro and Emily K. Strand, Las Vegas, for attorney Christopher R. Arabia.

Daniel M. Hooge, Bar Counsel, Las Vegas, and R. Kait Flocchini, Assistant Bar Counsel, Reno, for State Bar of Nevada.

BEFORE THE SUPREME COURT, CADISH, PICKERING, and HERNDON, JJ.

OPINION

By the Court, HERNDON, J.:

Attorneys who practice law in Nevada are "subject to the exclusive disciplinary jurisdiction of the supreme court and the disciplinary boards and hearing panels created by [the Supreme Court Rules]." SCR 99(1). In this attorney discipline case, we are asked to make an exception for attorneys who hold public office either because they are entitled to qualified immunity or because they are subject exclusively to the jurisdiction of the Commission on Ethics for misconduct committed while in office. We reject both arguments. When an attorney is elected to public office and then violates the Rules of Professional Conduct, the attorney's position as an elected official does not entitle the attorney to qualified immunity from professional discipline. Further, the Commission on Ethics’ authority over public officers is not exclusive. Therefore, an attorney who engages in professional misconduct while in public office remains subject to the disciplinary jurisdiction of this court and the disciplinary boards and hearing panels created under the Supreme Court Rules regardless of whether the misconduct also falls within the Commission on Ethics’ jurisdiction. Because the State Bar proved by clear and convincing evidence that attorney Christopher Arabia violated two rules of professional conduct and a public reprimand sufficiently serves the purpose of attorney discipline under the circumstances, we adopt the hearing panel's recommendation and reprimand Arabia for violations of RPC 1.7 (conflict of interest: current clients) and RPC 8.4(d) (misconduct prejudicial to the administration of justice).¹

FACTS

Arabia has been licensed to practice law in Nevada since 2006 and has no prior discipline. He is currently the duly elected Nye County District Attorney.

On September 15, 2019, Arabia terminated Michael Vieta-Kabell's employment as an assistant district attorney. Vieta-Kabell maintained that he was terminated because he had been attempting to unionize assistant district attorneys, but Arabia asserts the termination was the result of Vieta-Kabell's job performance.

Vieta-Kabell filed an appeal of his termination with Nye County on September 23, 2019. The Human Resources Director for Nye County, Danelle Shamrell, sent both Vieta-Kabell and Arabia an email on September 24, scheduling the appeal for a hearing. That same day, Arabia sent an email to Shamrell, but not Vieta-Kabell, stating, "[i]t is my legal opinion as the Nye County District Attorney that you must cease and desist from conducting the proposed hearing." Arabia's email asserted that because Vieta-Kabell was an at-will employee, Arabia had the right to terminate Vieta-Kabell at any time, and thus, an appeal hearing was not available to Vieta-Kabell. Arabia ended the email by stating, "[p]lease confirm via e-mail no later than 4:00 p.m. on Thursday, September 26, 2019 that you have vacated the proposed hearing regarding Mr. Vieta-Kabell." At the subsequent disciplinary hearing, Shamrell testified that "[t]he DA's Office provides legal advice to the County, and he told me to cancel it. And so, based on the fact that he's who he is, the DA, I did what I was told to do." Thus, the next day, on September 25, Shamrell emailed Vieta-Kabell stating, "[b]ased on direction from Chris Arabia, Nye County District Attorney I have been instructed to cease and desist from conducting the requested hearing and as such there will not be the hearing."

Vieta-Kabell filed a grievance against Arabia with the State Bar. Arabia responded to the grievance stating he "was not acting as the County's counsel with respect to this matter and therefore provided no advice or counsel." Arabia further asserted that "[t]he County had Attorney [Rebecca] Bruch representing it and decided to cancel the hearing." However, Arabia later provided emails demonstrating that Bruch was not retained until the morning of September 25, after he had sent the email requesting the hearing be canceled. Additionally, Bruch testified that when she was retained by Nye County, her scope of representation did not include whether there should be a County hearing, and instead, related to an Employee Management Relations Board claim filed by Vieta-Kabell.

Before the disciplinary hearing, Arabia moved to dismiss the bar complaint twice, the first time because he asserted he was protected under qualified immunity, and the second time because he argued the State Bar lacked jurisdiction over him as an elected official. Arabia's motions were denied.

At the hearing, Arabia testified that he did not direct the hearing to be vacated and that "it was a request." In contrast to his letter responding to the grievance, he testified that he did not wait for Bruch to become involved because he did not think that the hearing would even trigger her involvement. He acknowledged that if terminating Vieta-Kabell's employment "was wrong, then I'm going to take the hit on that. I get that. I'm talking about me as the District Attorney." Arabia, however, also stated that telling the County not to hold the hearing was the right and proper thing to do.

The hearing panel found in a 2-1 vote that Arabia violated RPC 1.7 (conflict of interest: current clients) and RPC 8.4(d) (misconduct prejudicial to the administration of justice), but unanimously found that his conduct was negligent, rather than knowing or intentional. The panel found two aggravating circumstances (substantial experience in the practice of law and failure to accept wrongfulness of the conduct) and one mitigating circumstance (lack of prior discipline). The panel has recommended Arabia be reprimanded and ordered to pay the costs of the disciplinary proceeding.

DISCUSSION

Before we consider the hearing panel's findings and the appropriate discipline, we must address Arabia's arguments that this matter should be dismissed because he has qualified immunity and the State Bar lacked jurisdiction over him.²

Qualified immunity does not apply to attorney disciplinary proceedings

Arabia contends that he cannot be professionally disciplined because his actions are entitled to protection under the qualified immunity doctrine, and thus, this matter must be dismissed. We disagree.

The qualified immunity doctrine "provides that government actors following statutory guidelines or exercising their discretion are immune from common law tort actions in connection with their statutory duties or their discretion." City of Boulder City v. Boulder Excavating, Inc., 124 Nev. 749, 756, 191 P.3d 1175, 1179 (2008). NRS 41.032(2) provides in relevant part that "no action may be brought ... against an ... officer or employee of the State ... which is ... [b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty." The first step to determining whether qualified immunity is available to Arabia is to determine if an attorney discipline proceeding qualifies as an "action" under NRS 41.032.

As discussed in Boulder City , qualified immunity generally applies in actions where the plaintiff seeks damages or redress for the government employee's actions. 124 Nev. at 756, 191 P.3d at 1179. An attorney discipline proceeding is not such an action. The purpose of an attorney discipline proceeding is to protect the public, the courts, and the legal profession, not to make the grievant whole or punish the attorney. State Bar of Nev. v. Claiborne , 104 Nev. 115, 213, 756 P.2d 464, 527-28 (1988). Therefore, even though disciplinary proceedings are generally treated as civil actions, see SCR 119(3) (providing that "[e]xcept as otherwise provided in these rules, the Nevada Rules of Civil Procedure and the Nevada Rules of Appellate Procedure apply in disciplinary cases"), they are not the type of common law actions to which qualified immunity generally applies.

The conclusion that qualified immunity does not extend to an attorney discipline proceeding finds support in cases where courts have determined that a prosecutor enjoyed qualified immunity from civil liability. In particular, courts often point to the availability of professional discipline as a counterbalance that offers a means to deter misconduct when qualified immunity otherwise protects a prosecutor from civil liability. For example, the United States Supreme Court has explained that a prosecutor's immunity from liability in Section 1983 suits "does not leave the public powerless to deter misconduct" because a prosecutor is subject "to professional discipline by an association of his peers." Imbler v. Pachtman, 424 U.S. 409, 428-29, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Similarly, a few of our sister states have recognized that where a civil action must be dismissed because of qualified immunity or litigation privilege, the attorney may still be subject to professional discipline. See, e.g., Silberg v . Anderson , 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365, 373-74 (Cal. 1990) (recognizing that although a tort action based on communications between participants in earlier litigation is precluded under immunity or privilege principles, an attorney may nevertheless be subject to discipline for such a communication); Wright v. Yurko , 446 So. 2d 1162, 1164 (Fla. Dist. Ct. App. 1984) (providing that there can be no civil action for slanderous statements made during the course of an action and the remedies for such slander "are left to the discipline of the courts, the bar association, and the state’ "); Hawkins v . Harris , 141 N.J. 207, 661 A.2d 284, 288 (1995) (...