In re Discipline of Schaefer, 36173.

Docket NºNo. 36173.
Citation117 Nev. 496, 25 P.3d 191
Case DateJune 21, 2001
CourtSupreme Court of Nevada

25 P.3d 191
117 Nev. 496


No. 36173.

Supreme Court of Nevada.

June 21, 2001.

25 P.3d 194
J. Michael Schaefer and Potter Law Offices, Las Vegas, for attorney John Michael Schaefer

25 P.3d 195
Rob W. Bare, Bar Counsel, and Michael J. Warhola and Felicia Galatti, Assistant Bar Counsel, for State Bar of Nevada

Before the Court En Banc.



Two formal disciplinary complaints representing four grievances against attorney John Michael Schaefer were brought by the state bar and were consolidated for hearing before a panel of the Southern Nevada Disciplinary Board. The panel found that Schaefer had violated several professional conduct rules, including Supreme Court Rule 182, which prohibits a lawyer from directly contacting a represented party without the consent of that party's counsel, unless the contact is otherwise authorized by law. Some of the SCR 182 violations found by the panel occurred during the course of litigation in which Schaefer was representing himself. Schaefer asserts that he did not violate SCR 182 by contacting represented parties while he was representing only himself.

We conclude that the purposes underlying SCR 182 are better served by applying the rule to lawyers representing themselves, as well as when representing other clients. But given the existence of conflicting authority from other jurisdictions and the absence of guidance from this court on the rule's scope at the time of Schaefer's actions, SCR 182 is unconstitutionally vague as applied to Schaefer's conduct when he was representing himself. Accordingly, these violations cannot be considered in determining the appropriate discipline to be imposed. We conclude, however, that the bulk of the remaining violations are supported by clear and convincing evidence, and that disbarment is warranted in light of Schaefer's conduct.


First disciplinary complaint

The first disciplinary complaint filed against Schaefer included three counts. Count I of the first complaint alleged violations of SCR 151 (competence), SCR 170 (meritorious claims), SCR 172 (candor toward the tribunal), SCR 173 (fairness toward opposing party and counsel), and SCR 203(3) (misconduct involving dishonesty, deceit, fraud or misrepresentation). Count II alleged violations of SCR 172 (candor toward the tribunal) and SCR 203(3) (misconduct involving dishonesty, deceit, fraud or misrepresentation). Count III alleged violations of SCR 173 (fairness toward opposing party and counsel), SCR 182 (communication with person represented by counsel) and SCR 203(4) (conduct prejudicial to the administration of justice).

Counts I and III

Counts I and III were based on Schaefer's conduct during the litigation of several disputes between Schaefer and his condominium association. Schaefer is president of Schaefer, Inc., which owns several condominium units at Wimbledon Tennis Club Condominiums in Southern Nevada. Schaefer lives in one of the units; the others are leased to tenants. He has had several disputes with his neighbors and with the Wimbledon Tennis Club Condominium Association (the "Association"). The record reflects that in 1996 and 1997, these disputes became so pervasive that realtors attempting to market other condominium units were compelled to disclose to potential buyers that a litigious attorney lived there.

The first litigation pertinent to this case was commenced in March 1997. On behalf of Schaefer, Inc., Schaefer filed a complaint against the Association, seeking a permanent injunction that would preserve his voting rights in the Association and confirm his eligibility to run for the Association's governing board. The Association stipulated to this relief, and the court approved the stipulation and ordered each party to bear its own costs. Schaefer was directed to prepare the order. Despite the fact that no costs were awarded, Schaefer included an award of costs to Schaefer, Inc., in the draft order. He then submitted the order to the court for signature, without providing it to opposing counsel for approval despite counsel's request that he do so. The court inadvertently entered the order. When opposing counsel became

25 P.3d 196
aware of the order, he asked Schaefer to stipulate to the entry of an amended order deleting the cost award. Schaefer refused, and so opposing counsel was required to file a motion to amend the order, which the court granted

In April 1997, Schaefer filed an action against the Association and its board members, alleging that they conspired to have another resident assault him. Two weeks later, Schaefer was charged with five counts of misdemeanor battery. One of the complaining witnesses was a Mrs. Fox, the spouse of an Association board member; another was the resident with whom the Association board members had allegedly conspired. Schaefer was later convicted of two counts of misdemeanor battery, after which post-trial proceedings continued for approximately one year. Those proceedings included a motion for a new trial and an appeal.

During the criminal case, the justice's court verbally issued a "no-contact" order, expressly prohibiting Schaefer from having any contact with Mrs. Fox. At the time the order was entered, Schaefer and the Foxes all lived in the condominium complex.

After the no-contact order was entered, and while the criminal case was still pending, the Foxes moved to a house in Las Vegas. On the evening of March 9, 1998, Schaefer went to their house and knocked on the door. Mrs. Fox answered and demanded that he leave immediately. Schaefer gave her a handwritten letter for Mr. Fox. In the letter, Schaefer offered to dismiss Mr. Fox as a defendant in the conspiracy case if the Foxes agreed to cooperate with Schaefer in the criminal case. Schaefer also left his business card with a note referencing the letter on the windshield of the Foxes' car.

During the disciplinary proceedings in this case, Schaefer admitted in both his written papers and his testimony at the hearing that he knew Mr. Fox was represented by counsel in the conspiracy case, and that the no-contact order was in effect at the time of this encounter.

In August 1997, Schaefer filed an action seeking a receiver for the Association. Named as plaintiffs were Schaefer, Inc., an individual resident, and a family trust that owned one of the units. Five days before the complaint was filed, the trustee had left on an extended trip to Europe. The trustee did not authorize Schaefer to file a complaint and was not aware that the trust had been included as a plaintiff.

When the trustee returned to Las Vegas, she discovered the litigation. A receivership was contrary to the trust's best interests, as the trustee was trying to sell the unit owned by the trust and a receivership could cloud the title and impair the marketability of the unit. The trustee notified Schaefer of her anger and unwillingness to be a party to the litigation. Schaefer responded with a letter attempting to persuade the trustee to change her mind, and asking her to sign a sworn statement granting retroactive authorization for the lawsuit. The trustee refused and notified the Association's attorney that Schaefer was not authorized to represent the trust.

In his testimony at the disciplinary hearing, Schaefer admitted that he did not notify the trustee of his intent to initiate a receivership complaint, that he neither requested nor received the trustee's authorization to act for the trust, and that he improperly commenced legal proceedings on behalf of the trust. He asserted in his trial brief to the hearing panel that he had previously represented the trustee in other unrelated matters, and that he felt he had a "certain leeway" to represent her interests while she was away.

Schaefer also directed written communication to six Association board members in an effort to persuade them to join the receivership action as plaintiffs. He did so even though he was aware that the Association was represented by counsel.

The action was dismissed, and Schaefer was sanctioned $5,000 for filing a frivolous complaint. As of the date of the disciplinary hearing in this matter, over two years later, Schaefer still had not paid the sanctions.

Schaefer and the Association's counsel engaged in negotiations for a global settlement of the pending litigation, with the exception of Schaefer's conspiracy action, which was being handled by the Association's insurance

25 P.3d 197
defense counsel. During the settlement negotiations, Schaefer repeatedly directed communications to the Association's president, despite Schaefer's knowledge that the Association was represented by counsel, in an attempt to coerce the president into dismissing counsel. Schaefer also asked to be substituted in as counsel for the Association, despite the fact that he was counsel for an adverse party (Schaefer, Inc.) in the litigation. The president was greatly disturbed by these communications, and his wife was frightened because Schaefer had slipped some of the communications under their door late at night. Schaefer also contacted several board members about the settlement without counsel's consent.

In both his written papers before the hearing panel and in his testimony at the hearing, Schaefer admitted to authoring the letters at issue, and that he attempted to have himself substituted as counsel for the Association.

Count II

Count II of the first complaint was based on Schaefer's failure to disclose his disciplinary history in a pro hac vice application to a Texas court. Schaefer filed the application in order to represent a trust of which he was trustee. In his affidavit, dated in November 1998, he represented that he had not been subject to discipline for any events occurring within the last five years, but admitted that he had received a public reprimand for conduct occurring in December 1992, before the five-year period.


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