Stayed Interim Suspension In Nevada

The Nevada Supreme Court granted a motion for interim suspension for a criminal conviction but stayed the order on conditions.

The court considered the rule mandating interim suspension for a felony offense and whether good cause existed to stay the order

Consistent with these goals, we hold that “good cause” to relieve a lawyer from automatic interim suspension depends, first and foremost, on the danger the lawyer’s crime and other established misconduct suggest he or she poses to clients, the courts, and the public. Cf. SCR 102(4)(b) (providing for temporary suspension of a lawyer where, although not convicted of a crime, the lawyer “appears to be posing a substantial threat of serious harm to the public”). A related but secondary concern is “whether there is a substantial likelihood, based on all the available evidence, that a significant sanction will be imposed on the [lawyer] at the conclusion of any pending disciplinary proceedings.” In re Discipline of Trujillo, 24 P.3d 972, 979 (Utah 2001). Additional factors suggested by this case include the harm interim suspension will cause the lawyer and the lawyer’s existing clients, and the mechanisms available for monitoring the lawyer’s conduct so suspension can be stayed and conditions imposed, rather than set aside outright. 

Any crime by a lawyer reflects adversely on the profession. But Treffinger’s crime—first-time possession not for purposes of sale of a controlled substance does not inherently involve dishonesty, theft, or serious interference with the administration of justice. We recognize, as the Texas Supreme Court did in In re Lock, 54 S.W.3d 305, 309 (2001), a case involving similar facts, that “possession of a controlled substance may adversely affect a lawyer’s ability to practice honestly and effectively.” But “looking solely to the elements of the offense, we cannot say that the elements of  Treffinger’s offense mandate the legal conclusion that every attorney guilty of that offense is categorically unfit to practice law.” Id. The risk in allowing a lawyer who has entered a conditional guilty plea to possession of a controlled substance to continue to practice pending formal disciplinary proceedings is not per se intolerable, as it would be, for example, where a lawyer has victimized his clients by stealing from them. This view finds support in the Nevada Lawyers’ Assistance Program and Lawyers Concerned for Lawyers, both of which proceed from the premise that education and treatment, with proper monitoring, can allow a lawyer to continue to practice despite an addictive disorder…

By his plea, Treffinger has admitted committing the crime of possession of a controlled substance—heroin—as serious a possessory offense as exists. We thus are not prepared to “set aside” his suspension as he asks. But by virtue of his plea, Treffinger has subjected himself to stringent probation conditions, with which he has thus far complied. These conditions include being subject to search at any time of day or night without prior notice or a warrant, successfully completing any counseling deemed necessary by the Division of Parole and Probation, having no contact with his co defendants (other than his fiancée), performing 300 hours of community service, completing substance abuse evaluation, and being subjected to and complying with random drug tests.

Courts hesitate to fashion stayed suspension orders not imposed as part of stipulated final discipline because of the difficulty and expense associated with adequate compliance monitoring. See In re Conduct of Obert, 89 P.3d 1173, 1181 (Or. 2004). But here, Treffinger already is on probation and in a diversion program addressing the criminal act giving rise to the referred disciplinary charge. This court can stay Treffinger’s interim suspension and require, as a condition of the stay, that he provide the office of bar counsel quarterly compliance reports from his probation officer and that he immediately advise the State Bar of any violations without unduly imposing on the office of bar counsel. These conditions cabin the risk associated with allowing him to continue to practice despite his plea.

The professional discipline to be imposed on Treffinger remains undecided. If Treffinger successfully completes his diversion program, he will not be a convicted felon. His admitted act of possessing a controlled substance remains a violation of law for which bar discipline is appropriate, see Nev. R. Prof. Cond. 8.4(b), but the felony conviction will not exist. 

Thus

we grant the State Bar’s petition under SCR 111(1) and (7), suspend Treffinger from the practice of law, and refer this matter to the Southern Nevada Disciplinary Board for formal disciplinary proceedings. We stay the suspension conditioned on Treffinger’s continued adherence to the terms and conditions of his probation, his successful participation in his diversion program, and the absence of any further disciplinary offenses. Treffinger shall provide the office of bar counsel with quarterly compliance reports from his probation officer and shall immediately notify the State Bar of any probation violations, so the office of bar counsel can timely apply to this court to dissolve the stay in that event. 

The link may not work. The case is Discipline of Timothy Treffinger.

Pahrump Valley Times reported that the attorney is a former prosecutor. (Mike Frisch)