Nelson v. Eighth Judicial Dist. Court of Nev.
| Decision Date | 22 December 2022 |
| Docket Number | 84006 |
| Citation | 521 P.3d 1179 |
| Parties | Jane NELSON, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Susan Johnson, District Judge, Respondents, and Muhammad Saeed Sabir, M.D.; and Pioneer Health Care, LLC, Real Parties In Interest. |
| Court | Nevada Supreme Court |
Breeden & Associates, PLLC, and Adam J. Breeden, Las Vegas, for Petitioner.
McBride Hall and Robert C. McBride and Sean M. Kelly, Las Vegas, for Real Parties in Interest.
BEFORE THE SUPREME COURT, CADISH AND PICKERING, JJ., AND GIBBONS, Sr. J.1
Petitioner challenges a district court order denying her motion to disqualify real parties in interest's law firm based on an alleged conflict of interest resulting from that firm hiring a paralegal who had previously worked for petitioner's attorney. Petitioner argues that the facts, including that the paralegal worked on petitioner's case while employed by petitioner's attorney, require automatic disqualification and she need not show actual prejudice for such disqualification. Alternatively, petitioner argues that the district court improperly declined to hold an evidentiary hearing to determine the sufficiency of the other firm's screening practices.
While we elect to entertain this writ petition because it is the appropriate mechanism to challenge an order denying a motion to disqualify counsel and it presents important legal issues needing clarification, we nevertheless deny writ relief. We conclude that automatic disqualification was not required despite the paralegal's significant work on the case at the prior firm because petitioner failed to show any actual disclosure of confidences or ineffectiveness of the screening measures implemented by real parties in interest's firm. Thus, the district court acted within its discretion by denying the motion to disqualify. Given that there were no specific factual or credibility disputes, we further conclude the district court did not abuse its discretion by ruling on the motion without an evidentiary hearing.
McBride Hall represents real parties in interest Dr. Muhammad Saeed Sabir and Pioneer Health Care, LLC (collectively, Sabir) in a medical malpractice action brought by petitioner Jane Nelson. Nelson's attorney, Adam Breeden, owns a small, solo practice known as Breeden & Associates, PLLC. Kristy Johnson worked full time as his sole paralegal and assistant for roughly four years. In that role, Johnson worked closely with Breeden, as he purportedly shared his mental impressions and evaluations of every case with her.
While Johnson was employed by Breeden. & Associates, Breeden represented plaintiffs in two cases for which McBride Hall acted as defense counsel, including Nelson's underlying malpractice case against Sabir. While Nelson's case was ongoing, Johnson interviewed with and ultimately began working as a paralegal for McBride Hall. Upon notice of Johnson's departure, Breeden asked McBride Hall whether it intended to withdraw from the matters Johnson worked on at his firm. McBride Hall responded that it did not intend to withdraw and, instead, detailed the various screening measures imposed on Johnson as part of her employment.
The stated screening mechanisms first required a conflicts check to ensure that Johnson would be screened off any conflicting matters. Before beginning her position, McBride Hall further informed Johnson that she could not discuss any of the cases she worked on at Breeden's firm, including Nelson's case, with any staff at McBride Hall. As stated in her affidavit, Johnson agreed. The affidavit also indicated that McBride Hall (1) blocked Johnson's access to the Nelson computer file, (2) locked her out of the physical file, (3) instructed all staff not to discuss Nelson's case with Johnson, (4) circulated two memos to all staff detailing these screening mechanisms, and (5) assigned Johnson to different cases while another paralegal was assigned to the Nelson case.
Nelson moved to disqualify McBride Hall from representing Sabir given Johnson's purported direct involvement in the pleadings, filings, communications, and discovery and her knowledge of Breeden's legal conclusions on Nelson's case. Nelson argued that Johnson's employment presented a paradigmatic case for imputed disqualification. Johnson's intimate knowledge, Nelson argued, posed a significant risk to Nelson's confidential information that should render McBride Hall presumptively disqualified from continued representation. Relying on Nevada caselaw, she further maintained that Sabir could overcome this presumption only if they met their burden of showing sufficient screening, and that Ryan's Express Transportation Services, Inc. v. Amador Stage Lines, Inc., 128 Nev. 289, 279 P.3d 166 (2012), mandated an evidentiary hearing to ascertain the sufficiency of such screening. Accordingly, Nelson asked the district court to either (1) hold an evidentiary hearing and issue findings of fact as to the sufficiency of the screening mechanisms or (2) rule that McBride Hall is immediately disqualified under the facts at bar. In response, Sabir contended that the screening mechanisms were effective under existing caselaw to prevent imputed disqualification. In addition, they claimed that they would suffer undue prejudice upon McBride Hall's disqualification when there was no allegation or evidence that their counsel acquired privileged or confidential information about Nelson's case, such that Nelson would be prejudiced by McBride Hall's continued representation.
Following a nonevidentiary hearing, the district court denied the motion to disqualify McBride Hall. It noted both that McBride Hall properly screened Johnson and that Nelson did not establish any specific prejudice she would experience in light of this screening. Nelson now seeks a writ of mandamus instructing the district court to either grant her disqualification motion or vacate its ruling and hold an evidentiary hearing to make findings of facts and conclusions of law.
We elect to entertain the writ petition
A writ of mandamus is appropriate to "compel the performance of an act that the law requires or to control an arbitrary or capricious exercise of discretion." Nev. Yellow Cab Corp. v. Eighth Judicial Dist. Court, 123 Nev. 44, 49, 152 P.3d 737, 740 (2007). A petition for mandamus relief is generally a proper means to challenge a district court order regarding disqualification of a lawyer. See Liapis v. Second Judicial Dist. Court , 128 Nev. 414, 418, 282 P.3d 733, 736 (2012). Nelson contends, therefore, that we should consider the petition on its merits and for the additional reason that it concerns an important issue regarding the scope of imputed disqualification of nonlawyers. See City of Mesquite v. Eighth Judicial Dist. Court, 135 Nev. 240, 243, 445 P.3d 1244, 1248 (2019) (). We agree and thus elect to entertain the petition.
Given McBride Hall's screening mechanisms, the district court did not err in denying the motion
District courts have broad discretion in determining whether disqualification is required in a particular case. Leibowitz v. Eighth Judicial Dist. Court, 119 Nev. 523, 529, 78 P.3d 515, 519 (2003). Sabir maintains that our caselaw explicitly permits the type of screening utilized here. Nelson urges us to instead recognize automatic disqualification due to Johnson's previous work on the case.
As a threshold matter, Nevada's ethics rules governing the legal profession generally prohibit representation of a client whose interests are adverse to those of a former client in the "same or substantially related matter." See RPC 1.9(a). This disqualification rule is based on a presumption that confidences were shared during the prior representation. See Ryan's Express, 128 Nev. at 295, 279 P.3d at 170 (). Imputation arises based on a second presumption that such confidences are shared with members of the new firm. See id. at 295 n.2, 279 P.3d at 170 n.2 ().
Nonlawyer employees, like the attorneys with whom they work, receive confidential information in the course of employment and thereby stand in a fiduciary relationship with the client. See 2 Ronald E. Mallen, Legal Malpractice § 18:53 (2022 ed.). We first recognized this principle in Ciaffone v. Eighth Judicial District Court, in which we denied writ relief to a plaintiff who challenged a district court decision applying imputed disqualification to her attorney based on the attorney's employment of a nonlawyer who previously worked on the same matter for the defendant's firm. 113 Nev. 1165, 1166-67, 1170, 945 P.2d 950, 951-53 (1997), overruled in part by Leibowitz, 119 Nev. at 532, 78 P.3d at 521.
Our holding stood on a reading of former ethics rules SCR 160(2) and SCR 187.2 Id. at 1167-68, 945 P.2d at 952-53. SCR 160(2) imputed disqualification to lawyers associated with a lawyer already disqualified for involvement in the "same or a substantially related matter" and in possession of confidential information and communications. And SCR 160(2) did not permit screening to remedy this conflict of interest. See id. at 1168, 945 P.3d at 952 (). Meanwhile, SCR 187 mandated that partners and lawyers with direct supervisory authority "make reasonable efforts" to ensure that a...
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