Miller, In re, 6069

• Decision Date: 25 February 1971
• Docket Number: No. 6069,6069
• Citation: 482 P.2d 326,87 Nev. 65
• Court: Nevada Supreme Court
• Parties: In the Matter of E. R. MILLER, Jr., Attorney At Law.

Page 326

482 P.2d 326

87 Nev. 65

In the Matter of E. R. MILLER, Jr., Attorney At Law.

No. 6069.

Supreme Court of Nevada.

Feb. 25, 1971.

[87 Nev. 66] Sidney W. Robinson, Reno, for petitioner.

Thomas A. Cooke, President, State Bar of Nevada, Robert R. Herz, Executive Secretary, State Bar of Nevada, Thomas R. C. Wilson, II, Reno, for respondent.

OPINION

PER CURIAM:

On May 15, 1969, a hearing was held before a quorum of the local administrative committee of district No. 2 of the State Bar of Nevada, to determine whether or not E. R. Miller, Jr., an attorney at law, the petitioner herein, had violated certain rules of this court and the laws of the state. Both the petitioner and the State Bar of Nevada were represented by counsel.

Evidence introduced at the hearing revealed that the petitioner, in his capacity as an attorney at law, was employed by Joe S. Hobson to submit a written bid to Michael Kapetan, administrator of the Estate of Emanole Kapetan, deceased, in the amount of $12,000 for the Silver Dollar Club, a bar located in Ely, Nevada.

The attorney for the administrator contacted Miller prior to the confirmation of the sale of the Silver Dollar and advised him that the administrator was opposed to the sale of the premises because he personally asserted an interest in some of the equipment located at the bar, and because the offer of $12,000 was insufficient. On the morning of March 14, 1967, Miller met the administrator and his attorney on the courthouse stairs and while ascending the stairs offered the administrator $2,000 'under the table' if he would agree to the sale of the bar to Hobson. This offer was again made to the administrator in the presence of George Pavalakis, in the law library or jury room, before they entered the courtroom. At the confirmation hearing held that same day, Miller raised Hobson's bid to $13,000, but he never revealed the $2,000 'under the table' offer to the district court or to the attorney who had previously been appointed to represent the incompetent widow of Emanole Kapetan. . the record indicates that the administrator, in open court, did object to the $12,000 offer but gave approval of the $13,000 offer as did the attorney for the incompetent widow.

On the afternoon of March 14, 1967, Jimmy Pavalakis contacted Kapetan and his attorney, as well as Miller, and made a verbal offer to purchase the Silver Dollar Club for $16,000.

During that same afternoon there were several contacts made between the administrator and his attorney and Miller. The administrator was pressing to set aside the sale to Hobson. There was also a discussion of the offer by Jimmy Pavalakis to purchase the Silver Dollar Club from either the Kapetan estate or from Hobson for $16,000.

The attorney for the administrator prepared a motion to set aside the sale and Miller obtained the signature of the district court judge upon a contempt citation against the administrator for his failure to execute the deed to the Silver Dollar to Hobson. This citation was not served on the administrator but he had knowledge of it.

Later that afternoon the petitioner paid to Mike Kapetan the $2,000 in $20 bills and cautioned him 'If anybody should say anything, just tell them it is paid for your good will.' Kapetan then executed the administrator's deed conveying the Silver Dollar to Joe Hobson.

On July 25, 1968, the attorney for the incompetent widow moved to set aside the sale of the Silver Dollar upon the basis of fraud. On August 18, 1968, after a hearing, the district judge set aside the sale to Hobson and referred the question of Miller's conduct to the local administrative committee for district No. 2 of the State Bar of Nevada.

Based on the evidence which it received, the administrative committee found that Miller had breached the code of professional ethics and Supreme Court Rules 198 and 204, and that he was guilty of bribing a judicial officer, a felony, and recommended to the board of governors of the State Bar of Nevada that: (1) Miller be suspended for not less than three years; (2) be assessed costs of proceedings; and (3) be given a public reprimand.

The board of governors sustained the committee's findings of fact except the finding that Miller was guilty of bribing a judicial officer. As to that charge, the board found that there was insufficient evidence to support it against the petitioner. Nonetheless, the board adopted the committee's recommendation for disciplinary measures against Miller.

Miller contends that the entertainment by the district court of the motion to vacate and rescind the sale constituted error prejudicial to him; that all proceedings pursuant to that motion were void; that the transcript of proceedings held in connection with that motion was presented to the local administrative committee No. 2 and constituted evidence which could not have been, and should not have been, properly considered by the committee; that the findings of the district court that the sum of $2,000 was paid by him 'under the table' was prejudicial and detrimental and contrary to the facts; and that no valid order could have been entered upon the motion to vacate and rescind the sale by the court; and that the only purpose for holding the hearing was to lay the foundation for charges of unprofessional conduct against him. Furthermore, he contends that because the board of governors absolved him from the charge of bribing a judicial officer, that a suspension from the practice of law for a period of three (3) years is unjustified and excessively harsh.

It is the obligation of this court, in reviewing a case of this nature, to examine the entire record anew to determine whether any charge meriting discipline has been proven. In such a review we are not bound by the findings or recommendations of the local administrative committee, nor by the findings or recommendations by the board of governors. In re Scott, 53 Nev. 24, 292 P. 291 (1930); In re Wright, 68 Nev. 324, 232 P.2d 398 (1951). On the other hand the findings and the recommendations of the committee and the board are persuasive, and a petitioner must affirmatively reveal wherein the findings and recommendations of the committee and board are erroneous and unlawful. In re Wright, supra.

The board of governors specifically found that there was insufficient evidence to establish that Miller was guilty of a violation of NRS 199.010, which makes the bribing of a judicial officer a felony. We reach the same result but for a different reason. An administrator of an estate is merely an officer of the court appointed to carry into effect the decisions and decrees made by the district court and is not a judicial officer. Cf. Burnside v. Bristol County Board of Retirement, 352 Mass. 481, 226 N.E.2d 234 (1967).

A judicial officer has powers confided in him to be exercised according to his discretion and does not act in his official capacity at his peril. Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938). He is an individual who determines whether a law has been violated, adjudges persons guilty and has the power to inflict penalties for violation of laws. Furthermore he has the power to determine causes between parties. Cleveland C.C. & St. L.R. Co. v. People, 212 Ill. 638, 72 N.E. 725 (1904); Hitt v. State, 182 Miss. 184, 181 So. 331 (1938). An administrator of an estate possesses none of the characteristics or powers of a judicial officer. Kapetan, not being a judicial officer, could not be bribed in that capacity by Miller. Therefore, Miller could not be guilty of a violation of NRS 199.010.

Here our primary concern is whether the petitioner violated the rules of this court, and if so whether the recommendations for disciplinary action should be imposed against him.

We are not concerned with whether the motion to set aside the sale of the Silver Dollar was timely, or whether the proceedings had in relation to that motion were void. The petitioner's entire 'smoke screen' attack upon the propriety of the probate proceedings in district court is in no way relevant to these disciplinary proceedings. We are only concerned with Miller's conduct on March 14, 1967, and any subsequent acts by him relevant to that conduct.

We find that Miller surreptitiously offered Kapetan $2,000 outside the probate proceedings in payment for his consent to the sale of the Silver Dollar, and in order to obtain Kapetan's signature to the deed of the premises he paid Kapetan the $2,000 in denominations of $20, and cautioned him 'if anybody should say anything, just tell them it is for your good will.'

It is to be noted that at the time he received the $2,000, Kapetan was represented by counsel, and Miller never gave him any advice about the future disposition of the money. Kapetan was free to seek his attorney's advice in regards to its ultimate disposition. However, the entire atmosphere created by Miller's offer to pay 'under the table' and his warnings to Kapetan not to reveal the true purpose of the $2,000, could only have lead Kapetan or any one else in his position to understand and believe that ...