Opinion
No. 36173.
September 10, 2001.
MAUPIN, C.J., YOUNG, J., SHEARING, J., AGOSTI, J., ROSE, J., LEAVITT, J., BECKER, J.
ORDER DENYING REHEARING AND MODIFYING OPINION
This is a petition for rehearing of this court's opinion disbarring attorney John Michael Schaefer. We conclude that rehearing is not warranted, but modify our opinion as set forth below.
In re Discipline of Schaefer, 117 Nev. ___, 25 P.3d 191 (2001).
Schaefer first argues that rehearing is warranted because, contrary to the statement at page 3 in our opinion, the district court did not specifically order each party to bear its own costs. Rather, the district court's minute order was silent as to costs. While our opinion inadvertently misstated the district court's order, we were aware of the order's content. Rehearing is not warranted on this basis, but we modify our opinion to accurately reflect the district court's order. Accordingly, the sentence on page 3 that currently reads, "The Association stipulated to this relief, and the court approved the stipulation and ordered each party to bear its own costs." is modified to read, "The Association stipulated to this relief, and the court approved the stipulation; no costs were awarded to either party."
Schaefer next asserts several arguments in support of his position that his visit to the Foxes did not violate any ethical rules. Schaefer first argues that his communication with Mrs. Fox was permissible because, as a criminal defendant representing himself, he had a Sixth Amendment right to contact the witnesses against him. Schaefer does not assert any authority in support of his argument that he had a right to contact Mrs. Fox even in the face of the justice court's no-contact order, and so we need not consider his argument.
See SIIS v. Buckley, 100 Nev. 376, 382, 682 P.2d 1387, 1390 (1984) (noting that this court need not consider argument unsupported by citation to relevant authority).
In addition, we reject Schaefer's argument that any ethical violations were based on uncharged criminal conduct, and thus deprived Schaefer of due process. Schaefer's disbarment was based, in part, on his violation of SCR 173(6), which was charged in the first disciplinary complaint. While our opinion noted that Schaefer's conduct appeared to violate NRS 199.240, his disbarment was not based on this statute.
Finally, we reject Schaefer's argument that the violation was not shown by clear and convincing evidence because it was supported only by inadmissible hearsay. Schaefer's own testimony at the hearing was that he offered to dismiss Mr. Fox from the conspiracy lawsuit if Mr. Fox agreed not to testify against him at his criminal sentencing hearing. Rehearing is not warranted on this basis.
Next, Schaefer asserts that insufficient evidence was presented as to the identity of the trustee of the Thaler Trust. Without such evidence, Schaefer argues the violations based on his conduct in filing a complaint naming the trust as a plaintiff without authorization cannot stand. This argument is without merit. Schaefer admitted at the hearing that he did not have authorization to file the complaint on behalf of the trust.
Schaefer's next argument concerns the $5,000 sanction he was ordered to pay. He asserts that he paid the sanction during the pendency of this appeal. Consequently, he argues that our opinion's statement that he "has persistently failed to pay the sanction" falsely implies that he has yet to pay the sanction. Schaefer attached proof of payment to his petition for rehearing.
Schaefer's disbarment was based in part on his conduct in failing to pay the sanction for over two years, and this is accurately reflected on page 6 of our opinion. But page 27 of the opinion states, "[t]he record also reflects that the complaint was frivolous, and that the district court imposed sanctions of $5,000, which Schaefer has persistently refused to pay." Accordingly, we modify this sentence in our opinion to delete the word "has," so that the sentence reads, "[t]he record also reflects that the complaint was frivolous, and that the district court imposed sanctions of $5,000, which Schaefer persistently refused to pay."
Schaefer next argues that he did not make any misrepresentations in his affidavit to the Texas court. Schaefer states that the discipline he received between 1993 and 1997 was based on an incident occurring in 1992, and that his affidavit was accurate in this regard. Schaefer's argument is without merit. The 1995 California suspension and the 1997 reciprocal Nevada suspension were based on Schaefer's conduct in failing to comply with the terms of his probation — conduct which occurred within the five-year period referenced in the Texas affidavit.
Schaefer then repeats the arguments made in his briefs concerning the constitutionality of SCR 182. Specifically, Schaefer again argues that the rule is a content-based speech restriction subject to strict scrutiny under the First Amendment, and that the rule is overbroad in that it reaches a substantial amount of protected speech. These arguments were considered and rejected, and rehearing on this ground is not warranted.
NRAP 40(c)(1) (stating that matters presented in the briefs may not be reargued on rehearing).
Finally, Schaefer argues that this matter must be remanded to the Southern Nevada Disciplinary Board for a new hearing on the discipline to be imposed. Schaefer asserts that as we held that certain violations could not be considered, the hearing panel must reconvene to determine the appropriate discipline. Schaefer also maintains that when the SCR 182 violations are not considered, there is insufficient evidence of a pattern of misconduct. Finally, Schaefer asserts that he must be given the opportunity to present mitigating evidence concerning his activities as a "public interest attorney."
We conclude that this argument is without merit. First, this court has final authority over lawyer discipline; a hearing panel only makes recommendations to this court. Our de novo review extends even to the panel's factual findings. Accordingly, a remand is unnecessary. In addition, Schaefer had a full opportunity to present any evidence in mitigation that he wished at the hearing. He is not entitled to a new hearing on this basis.
In re Kenick, 100 Nev. 273, 680 P.2d 972 (1984).
In re Drakulich, 111 Nev. 1556, 908 P.2d 709 (1995).
Finally, the pattern of misconduct considered by this court did not consist solely of Schaefer's SCR 182 violations, but his conduct as a whole. As noted in our opinion:
The record reflects a blatant disregard by Schaefer for the rights of others and the administration of justice. This pattern is demonstrated by Schaefer's actions in naming the Thaler Trust as a party without authorization, his attempt to influence a witness's testimony, his self-serving award of costs without court order, and his false affidavit to the Texas court.
Having considered Schaefer's arguments and concluded that none of them warrant rehearing, we deny the petition for rehearing. We modify our previous opinion as set forth in this order.
It is so ORDERED.