State Bar of Nevada v. Claiborne
| Decision Date | 18 May 1988 |
| Docket Number | No. 17294,17294 |
| Citation | 756 P.2d 464,104 Nev. 115 |
| Parties | STATE BAR OF NEVADA, Petitioner, v. Harry Eugene CLAIBORNE, Respondent. |
| Court | Nevada Supreme Court |
John Howe, Nevada State Bar Counsel, Las Vegas, for petitioner.
Oscar B. Goodman, David Goldwater, Las Vegas, John S. Drendel, Reno, for respondent.
On November 25, 1987, this court entered a preliminary order in this matter indicating that from our review of the pertinent legal authorities and the facts reflected in the record before us, we were "not persuaded that further discipline should be imposed upon respondent." See Docket No. 17294, order filed November 25, 1987. Our order indicated that a full and formal opinion setting forth in detail the grounds for our decision would be forthcoming. Accordingly, this opinion constitutes our formal and final resolution of the issues presented in this disciplinary proceeding.
The unique history and extensive interest permeating this proceeding demand a protracted and detailed analysis of the complex of factors that culminated in this court's determination not to impose further discipline on the respondent Harry Eugene Claiborne. The extent to which the judicial assets of this court have been allocated to the fair and just resolution of this matter reflect a predominate concern and sensitivity to the preservation of public confidence in the integrity of the state bar and, by extension, the judicial system of this state. We especially invite those who are and have been content to judge the integrity and rightness of our preliminary decision by result alone to travel forthrightly and objectively with us over the expansive terrain that follows. There can be little understanding or appreciation for the destination reached by this court without surveying the path it followed.
TABLE OF CONTENTS
I. PROCEDURAL HISTORY 5BF
II. PRELIMINARY NOTE 3BF
III. THE FACTUAL HISTORY OF RESPONDENT'S CONVICTION AND 3BF
EVENTUAL REMOVAL FROM OFFICE
A. THE TENSION BETWEEN FEDERAL AGENTS AND THE NEVADA 4BF
FEDERAL DISTRICT COURT JUDGES
B. ALLEGATIONS OF INVESTIGATORY MISCONDUCT 7BF
C. THE FEDERAL GOVERNMENT'S BARGAIN WITH JOSEPH CONFORTE 9BF
D. THE GRAND JURY INDICTMENT 8BF
E. RESPONDENT'S FIRST TRIAL 9BF
F. THE SECOND TRIAL AND SUBSEQUENT APPELLATE AND *
CONGRESSIONAL PROCEEDINGS *
*
9BF
1. CONCERNS AND CONSEQUENCES OF THE GRAND 1BF
JURY INDICTMENT
2. EVIDENCE OF RESPONDENT'S "WILLFUL AND 4BF
KNOWING" CONDUCT
a. THE 1979 RETURN 4BF
b. THE 1980 RETURN 8BF
3. THE JUDICIAL AND CONGRESSIONAL 6BF
PROCEEDINGS
IV. RESPONDENT'S PROFESSIONAL BACKGROUND 3BF
V. DISCUSSION 5BF
VI. CONCLUSION 9BF
Initially, for the benefit of the public and the bar, we will set forth in detail the procedural history of this matter in order to clarify the circumstances under which this case came before this court, as well as the process we employed in resolving the legal issues presented.
The Board of Governors of the State Bar of Nevada (the Board) first acted upon this matter in May of 1986, at their annual meeting in San Diego, California. Following that meeting, on May 27, 1986, former Bar Counsel transmitted to this court a certified copy of respondent's judgment of conviction. Additionally, Bar Counsel filed a motion, referring to SCR 111, requesting that this court temporarily "suspend" respondent from the practice of law in this state and refer the matter to the Southern Nevada Disciplinary Board of the State Bar for the sole purpose of assessing the extent of the discipline to be imposed by reason of respondent's conviction. 1 On July 9, 1986, respondent's counsel opposed the motion for temporary suspension, contending, among other things, that the State Bar had no jurisdiction to proceed against respondent Claiborne under SCR 111 because of respondent's official status at that time as a member of the federal judiciary. 2 At the time former Bar Counsel filed the aforementioned motion with this court, respondent officially occupied the office of United States District Judge for the District of Nevada. Respondent was not actively engaged in the practice of law in this state and in fact was precluded from such practice by federal law because he was a sitting federal judge. See 28 U.S.C. § 454 (1982); cf. SCR 98. The policy underlying SCR 111 is to afford protection to the public while disciplinary proceedings are pending against active, practicing members of the bar who have been convicted of criminal offenses reflecting upon their fitness to practice law. SCR 111 relates to proceedings against attorneys who are convicted of serious crimes, and does not by its terms apply to state or federal judicial officers, whose conduct in office is subject to different regulatory measures. See, e.g., Nev. Const. art. 6, § 21 and art. 7, § 3; Nev. Code of Jud. Conduct, Canons 1 through 7; U.S. Const. art. II, § 4; 28 U.S.C. § 372 (1982). Based upon an extensive body of legal authority, this court concluded, therefore, in an order filed on July 22, 1986, that the State Bar lacked jurisdiction to conduct disciplinary proceedings against respondent pursuant to SCR 111 while he officially retained the position of United States District Judge. 3 Additionally, we noted that, arguably, this court also lacked jurisdiction to proceed against a sitting federal judge. We nevertheless considered it prudent to undertake a preliminary investigation that would facilitate a fair and reasonable resolution of the matter in the event that the jurisdictional impediment was removed. We accordingly specified in our order that:
Judge Claiborne's conviction justifies this court in deferring a final decision as to our own jurisdiction and in pursuing further inquiry. Moreover, this court believes that, although the State Bar of Nevada lacks jurisdiction over Judge Claiborne, [Bar Counsel] should be permitted to aid our inquiry by presenting any pertinent evidence he may possess concerning Judge Claiborne's contentions that proceedings against him in federal court have not been conducted fairly, in accord with due process, and in a manner entitling them to credit in disciplinary action by this court. (Emphasis added.)
Thereafter, on August 4, 1986, former Bar Counsel responded to our order and acknowledged that the State Bar possessed "no evidence concerning [respondent's] contentions." In our view, his response indicated, among other things, that he had filed his petition seeking respondent's temporary suspension without any substantial preliminary legal or factual research. Consequently, based on our review of the preliminary documents and materials filed by respondent's counsel, this court determined that respondent's contentions could not be summarily dismissed. See Docket No. 17294, order filed September 16, 1986; see also In re Hallinan, 48 Cal.2d 52, 307 P.2d 1 (1957); In re Hallinan, 43 Cal.2d 243, 272 P.2d 768 (1954) (). Accordingly, on September 16, 1986, we issued an order directing respondent to transmit to this court an extensive supplemental record of the federal proceedings against him which would fully apprise this court of matters essential to our complete understanding of the pending issues, and from which the federal government's position and the evidence against respondent could be accurately discerned. 4
On October 21, 1986, respondent's counsel complied with our directive and transmitted the requested record. 5 Subsequently, respondent's counsel further supplemented the record before us with a multi-volume set of the "Report of the Senate Impeachment Trial Committee" containing, inter alia, the transcripts of all testimony elicited during the United States Senate proceedings conducted pursuant to the articles of impeachment returned by the House of Representatives. Upon receipt of these materials, this court directed its Central Legal Staff to review the voluminous record and to prepare a detailed memorandum summarizing and evaluating its contents.
On January 26, 1987, upon completion of our staff's review, in an effort to insure the accuracy and completeness of our staff's factual analysis, this court issued an order affording the Board an opportunity to review, evaluate, and comment upon our staff's initial, extensive memorandum. 6 We requested the Board to evaluate carefully and objectively our staff's analysis "in the light of the record, so that the truth may be as fully determined as possible, to the end that we may perform our judgmental function." 7
On February 13, 1987, the Board submitted a response to our request stating in part that the Board "respectfully decline[d] to review the Claiborne record or comment on the Central Legal Staff's analysis of it." Instead, the...
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