In re Discipline of Hall, No. 40728 (NV 7/15/2004)
| Decision Date | 15 July 2004 |
| Docket Number | No. 40728.,40728. |
| Parties | IN RE: DISCIPLINE OF KENNETH L. HALL. |
| Court | Nevada Supreme Court |
Before SHEARING, C. J., AGOSTI, J., ROSE, J., BECKER, J., GIBBONS, J., DOUGLAS, J.
This is an automatic appeal from a Southern Nevada Disciplinary Board hearing panel's recommendation that attorney Kenneth Hall be suspended for forty days, with credit for forty-four days served under a temporary suspension, and that he be assessed the costs of the disciplinary proceeding, based on his criminal conviction for gross misdemeanor child abuse/neglect. We approve the panel's recommendation in its entirety.
The facts underlying Hall's conviction occurred in 1992. Hall engaged in sexual activities with a woman in his law office, in the presence and direct view of the woman's three-year-old daughter. Hall videotaped the encounter. Criminal proceedings were commenced after Hall's former fiancée found the tape and turned it over to authorities in November 1999.
In July 2000, an information was filed, charging Hall with one count of open or gross lewdness, a gross misdemeanor under NRS 201.210, and one count of child abuse and neglect, a gross misdemeanor under NRS 200.508. Hall's motion to dismiss the charges based on the statute of limitations was denied. The district court concluded that the "secret manner" limitations period, NRS 171.095, applied. This statute provides that when a crime is committed in a "secret manner," the statute of limitations begins to run from the discovery of the offense.
Pursuant to plea negotiations, in February 2001, Hall pleaded guilty to one count of gross misdemeanor child abuse and neglect. At the time of the offense, the crime was defined under NRS 200.508,1 in pertinent part, as follows:
1. A person who:
(a) Willfully causes a child who is less than 18 years of age to suffer unjustifiable physical pain or mental suffering as a result of abuse or neglect . . .
is guilty of a gross misdemeanor unless a more severe penalty is prescribed by law for an act or omission which brings about the abuse, neglect or danger.
Hall was sentenced to six months in jail; this sentence was suspended, and Hall was placed on probation for a period not to exceed two years, with various probationary conditions.
After the judgment of conviction was entered, the state bar filed a petition for temporary suspension under SCR 111 with this court, which was assigned Docket No. 38011. We initially granted the petition on July 11, 2001, and temporarily suspended Hall. The order directed the state bar to commence formal disciplinary proceedings at which the only issue would be the appropriate discipline. But we then granted Hall's motion to set aside the suspension on September 7, 2001. The order nevertheless referred the matter to the disciplinary board for "any action it may deem warranted."2 Accordingly, Hall was temporarily suspended for forty-four days.3
Shortly after the July 11, 2001 temporary suspension order was entered, the state bar filed a formal complaint under SCR 105, thereby commencing the formal disciplinary proceedings required under that order. When the September 7, 2001 order was entered, the state bar voluntarily dismissed that formal complaint. Instead, the state bar started from the beginning of the normal discipline process by opening a grievance file and referring the file to an informal screening panel.4 The screening panel decided that formal disciplinary proceedings were warranted, and a second formal complaint was thus filed on January 23, 2002.
The hearing panel concluded that Hall had violated SCR 203(2), and recommended that he be suspended for 40 days, with credit for the temporary suspension, and that he be assessed costs.
Limitations period
SCR 106(2) contains the limitations period applicable to lawyer disciplinary proceedings, and provides:
Formal disciplinary proceedings shall not be commenced against an attorney for alleged misconduct occurring more than 4 years prior to the filing of the complaint by bar counsel. In the event of fraud or concealment, the 4-year period begins on the date the fraud or concealment was discovered by the grievant, or on the date facts were known to bar counsel which should have lead bar counsel to discover the alleged misconduct.
Hall argued to the hearing panel that he did not conceal his conduct from the woman, and so the discovery rule did not apply. Bar counsel argued that Hall concealed his conduct from the authorities, and so the discovery rule did apply. Thus, according to bar counsel, the limitations period did not begin to run, at the earliest, until bar counsel discovered Hall's conduct in 1999. This argument was based in significant part on the district court's decision in the criminal case that the "secret manner" exception to the criminal statute of limitations period applied. The hearing panel determined that the charge against Hall was based on his criminal conviction, and so the limitations period did not begin to run until his conviction in 2001.
On appeal, Hall emphasizes that SCR 203(2) states that an attorney engages in misconduct by committing a "criminal act," not by being convicted. He argues that this language, together with SCR 108 (), means that the limitations period begins from the act itself, not the conviction. Although Hall asserts that the discovery rule does not apply because he did not conceal anything from the woman with whom he was involved, he ignores his admission that he did not inform her that he was videotaping the incident. More importantly, he refuses to accept that the victim was not the woman but her daughter — a three-year-old child without the capacity to promptly inform authorities.
Hall's failure to properly identify the victim of his conduct exposes the flaw in his reasoning concerning the discovery rule: the person harmed by his conduct lacked the capacity to complain to the state bar. Under these circumstances, the limitations period began when Hall's conduct was discovered by bar counsel, who could pursue a complaint. We specifically noted in Ching v. State Bar of Nevada5 that the Nevada Bar was a proper complainant because it is harmed whenever a Nevada lawyer violates the rules of professional conduct. In that case, we rejected attorney Ching's argument that reciprocal discipline proceedings against him were barred by the limitations period because his conduct occurred more than four years earlier, stating, "Ching would have this court sacrifice professional responsibility and ethical obligation in the name of procedure; however, `the public interest in the ethical practice of law outweighs any blind devotion to procedure.'"6 We conclude that the disciplinary proceedings were not barred by SCR 106's limitations period.
Hall also argues that laches applies and bars this proceeding.7 He asserts that after eleven years, memories have faded. But Hall did not call anyone else as a witness, and it does not appear from his testimony before the panel that his own recollection of the events at issue was substantially impaired. Laches applies only where there is prejudice.8 We conclude that Hall has not demonstrated any prejudice. While the lapse of time can be considered as a mitigating factor in determining the discipline to impose, and in fact the panel appears to have done so, it is not grounds for dismissal of the disciplinary proceedings.
Double jeopardy
Hall further asserts that the disciplinary proceeding is barred by double jeopardy because he has already been punished through the criminal justice system. Additionally, he maintains that the second disciplinary complaint, which resulted in the instant recommendation, was barred because the state bar voluntarily dismissed its first complaint, which was based on this court's original temporary suspension order. He cites several federal cases concerning criminal proceedings, but nothing concerning bar discipline proceedings. The state bar counters that the purposes of bar discipline are remedial and to protect the public, and so double jeopardy does not apply. In support, the state bar cites a Utah case,9 which held that double jeopardy does not apply in attorney discipline matters.
Other jurisdictions have explained that double jeopardy does not apply to bar disciplinary proceedings.10 Penalties for violations of attorney norms of professional conduct are not punishment or retribution for double jeopardy purposes.11 Instead, the aim of attorney discipline is to protect the public, to promote confidence in the legal system, and to maintain high professional standards.12 Double jeopardy principles do not bar these disciplinary proceedings.
Decision of pre-hearing motions by Board chair
Hall asserts that the procedural rules governing bar proceedings contemplate that motions will be decided by the hearing panel or the panel chair, not by the Board chair. He argues that the Board chair acted improperly in ruling on his prehearing motions to disqualify panel members, to dismiss and to exclude evidence. Additionally, he contends that if this court determines that the rules permit the Board chair to decide such motions, then the rules are unconstitutionally vague. Hall does not cite any authority in support of his due process argument.
The state bar explains that if a panel has been appointed, then the panel chair addresses prehearing motions; if not, then the Board chair addresses them. Relying on a Ninth Circuit case,13 the state bar argues that due process is more than satisfied because the Board chair and panel chairs are all duly-appointed Board members, and because all decisions are subject to this court's de novo review.
In reply, Hall asserts that the Board chair decided his motions before the panel was appointed, and then appointed himself panel chair so he could prevent ...
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