Legal Holidays And Vulgar Language

The Nevada Supreme Court has suspended one attorney for 90 days and publicly reprimanded another for litigation-related violations

Having reviewed the record and considered the parties’ arguments, we agree with the hearing panel that Ghibaudo violated RPC 3.1 and RPC 3.4 by issuing a deposition notice for a legal holiday and in person. In doing so, Ghibaudo disobeyed rules of the tribunal, one of which precluded in-person depositions at the time, and Ghibaudo did not have a non-frivolous basis for his actions. See RPC 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous ․”); RPC 3.4(c) (providing that a lawyer shall not disobey the rules of a tribunal), (d) (directing lawyers to refrain to make frivolous discovery requests). We also agree with the panel’s findings and conclusion that Ghibaudo violated RPC 3.4(c) by disobeying the court’s admonitions during a hearing on October 20, 2020, and that he violated RPC 4.4(a) by sending six separate emails with language that had “no substantial purpose other than to embarrass” a third party. RPC 4.4(a). Finally, the record supports the panel’s findings and conclusion that Ghibaudo violated RPC 8.4 by committing the violations of the rules as noted herein by his actions during the October 20, 2020, court hearing. See RPC 8.4(a) (explaining that it is misconduct when an attorney violates the rules of professional conduct).

We agree with Ghibaudo, however, as to two of the violations. First, we conclude that Ghibaudo’s conduct during the October 20, 2020, court hearing did not disrupt proceedings and therefore the RPC 8.4(d) violation must be dismissed. See RPC 8.4(d) (“It is professional misconduct for a lawyer to ․ [e]ngage in conduct that is prejudicial to the administration of justice.”); In re Discipline of Colin, 135 Nev. 325, 332, 448 P.3d 556, 562 (2019) (explaining that conduct that “is intended to or does disrupt a tribunal” may constitute an RPC 8.4(d) violation). Second, we conclude that substantial evidence does not support the panel’s findings as to the RPC 3.5(d) violation. The plain language of RPC 3.5(d) provides that “[a] lawyer shall not engage in conduct intended to disrupt a tribunal.” Here, the panel found that Ghibaudo violated RPC 3.5(d) during an October 20, 2020, court hearing when he made inappropriate comments to opposing counsel and a district court judge. Although we conclude that Ghibaudo acted with a knowing mental state during that hearing, the record does not support that he acted with an intent to disrupt the court proceedings. Accordingly, we conclude that the panel erred in finding that Ghibaudo violated RPC 3.5(d).

Mental state

The record reflects that Ghibaudo acted with an intentional mental state by setting an in-person deposition for a holiday (Christmas Day) when there was a standing district court order prohibiting in-person depositions due to the COVID-19 pandemic.

A public reprimand was imposed on another attorney

Having reviewed the record and considered the parties’ arguments, we agree with the hearing panel that Cramer violated RPC 3.4(c), RPC 4.4(a), and RPC 8.4(a), (d). As to the RPC 3.4 violations, we agree with the hearing panel that Cramer “[k]nowingly disobey[ed] an obligation under the rules of a tribunal,” RPC 3.4(c), by ignoring the court’s multiple admonitions to discontinue certain lines of questioning. We also agree that Cramer violated RPC 4.4(a) by using a derogatory term when referring to a party during a May 13, 2020, hearing and by calling opposing counsel a vulgar name during an argument after a deposition on August 3, 2020. In both instances, substantial evidence supports that Cramer had “no substantial purpose other than to embarrass” those third parties by her comments. RPC 4.4(a) (“[A] lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person ․”). Finally, because Cramer’s actions violated the Rules of Professional Conduct and her conduct during hearings on May 13, 2020, and September 11, 2020, disrupted the tribunal, we also conclude that Cramer violated RPC 8.4(a) and (d).

Sanction

In determining the appropriate discipline for Cramer’s violations of RPC 3.4(c), RPC 4.4(a), and RPC 8.4(a), (d), we weigh four factors; “the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.” In re Discipline of Lerner, 124 Nev. 1232, 1246, 197 P.3d 1067, 1077 (2008). Cramer violated duties owed to the legal profession (fairness to opposing party and counsel, impartiality and decorum of the tribunal, respect for rights of third persons, and misconduct). We agree with the panel that Cramer’s actions caused actual or potential injury by potentially delaying the proceedings and resolution of the matters at issue in the respective litigations. However, we disagree with the panel’s conclusion that Cramer’s mental state in committing these acts of misconduct was negligent.at her, the record demonstrates that Cramer had a knowing mental state during the May 13, 2020, and September 11, 2020, hearings. In particular, she appeared to have a “conscious awareness of the nature or attendant circumstances of” her actions but did not appear to have the intent to accomplish a particular result beyond representing her client at those hearings. Standards for Imposing Lawyer Sanctions, Compendium of Professional Responsibility Rules and Standards, 452 (Am. Bar Ass’n 2023) (Standards) (defining a knowing mental state). We further conclude that the record demonstrates that Cramer’s conduct after the August 3, 2020, deposition, during which she called opposing counsel a vulgar name after asking opposing counsel to leave Cramer’s office, was done with an intentional mental state. Indeed, the record demonstrates that Cramer had a “conscious objective or purpose to accomplish a particular result,” id. (defining an intentional mental state), particularly since she directed her comments to opposing counsel after she had left the office and then repeated the vulgar terminology a second time when questioned.

(Mike Frisch)