No. 34069.Supreme Court of Nevada.
July 11, 2001.
ORDER VACATING DISBARMENT AND DENYING PETITION FOR RECIPROCAL DISCIPLINE MAUPIN, C.J., YOUNG, J., SHEARING, J., AGOSTI, J., ROSE, J., LEAVITT, J., BECKER, J.
This is a petition for reciprocal discipline under SCR 114. On August 13, 1998. the California Supreme Court entered a default order of disbarment against attorney Elizabeth Elliot. The disbarment was based on Elliot, alleged failure to comply with the conditions of a previous suspension. The suspension was based upon Elliot’s failure to return library books to the Fresno County Law Library, and her failure to pay a small claims judgment for the cost of the books.
In April 1999, the instant petition was filed. We initially ordered the petition held in abeyance. in order provide Elliot an opportunity to seek relief from the California authorities. On January 19, 2001 after Elliot had failed to comply with several orders of this court, we entered the petition and rehearing an order disbarring Elliot. On January 23, 2001, Elliot filed a petition for rehearing. We concluded that tile order of disbarment should he stayed pending consideration of the petition for rehearing, and so, on January 26, 2001, we entered an order temporarily staving the order of disbarment pending further order of this court.
On March 28, 2001, we conditionally granted the petition for rehearing. These conditions required Elliot to (1) retain counsel and for counsel to file notice of appearance with in thirty (30) days, (2) within sixty (60) days from counsel’s appearance, file a status report detailing Elliot’s efforts to set aside the California disbarment and (3) pay a $500 sanction to the Supreme Court Law Library and provide proof of payment with in thirty (30) days.
Elliot has fully complied with our March 28, 2001, order. Her status report filed on June 15, 2001, reveals that the California Supreme Court summarily denied her petition to set aside the California disbarment. Elliot nevertheless asks that this court deny the petition for reciprocal discipline and decline to impose any further sanctions upon her based on the exceptions set forth in SCR 114(3).[1] Elliot’s request is supported by ample documentation, as well as affidavits front several Nevada lawyers attesting to Elliot competence, professionalism and ethics.
Elliot first argues that the California proceedings were so lacking in notice as to deprive her of the process. The record reflects that Elliot met with a representative of the California bar in October 1995. During this meeting she informed the bar representative that she was closing her California practice in order to move to Reno and provided the bar representative with her Reno address. The record also reflects that at the time of this meeting. Elliot had already found and return the library books, together with a check for $500 and a letter requesting the library to inform her if any additional amounts were owed, and that the library had not informed her of any such amounts. Elliot asserts that alter this meeting with the bar representative, she believed that the matter was concluded.
The record further reflects that almost all of the notices in this matter were sent only to Elliot’s old California address. Elliot maintains that she did not receive the one notice that was purportedly sent by regular mail to her Reno address. It also appears that at the time of the California proceedings, the California bar was undergoing considerable changes because the state had severely limited its funding. Elliot asserts that the first notice she had of the California proceedings was when the petition for reciprocal discipline was filed in Nevada.
We conclude that Elliot did not receive adequate notice of the proceedings against her. The California bar was aware of Elliot’s Reno address, but persistently failed to provide service at that address. This lack of notice prevented Elliot from having an opportunity to be heard on the charges against her, and deprived her of due process.
Elliot next argues that disbarment is a grossly disproportionate form of discipline in light of her conduct, and thus substantial different discipline is warranted. Elliot acknowledges that she should have been more diligent in following the California proceedings, as well as in complying with our orders. But she asserts that her conduct in this matter is an isolated instance of negligence that does not warrant[2] disbarment. Elliot points out that she represents her clients well and ethically, and supports her position with affidavits from several Nevada lawyers with knowledge of her professional behavior.
We agree that disbarment is too severe a sanction in this case. While Elliot could have been more diligent in following up on the California proceedings after her October 1995 meeting with a bar representative, one could also conclude that she was perfectly reasonable in assuming that she would be notified of any additional proceedings, at her Reno address which she had provided to the bar. In addition, Elliot could have been more conscientious in adhering to the letter of the California court’s suspension order. which required not merely the fact of restitution, but notice by Elliot that she had paid it, and in informing the California court that she had no one to notify under Rule 955 because she had closed her California practice. She should also have been more diligent in keeping this court informed of the status of her efforts to set aside the California disbarment. Nevertheless, disbarment is generally reserved for serious financial misconduct, criminal behavior, or conduct exhibiting a pattern of ethical violations where no improvement scents likely. The record reflects that Elliot’s lack of diligence in this case was an isolated incident in her professional life, and that she is considered by her peers to be a conscientious, ethical lawyer. Thus, disbarment is far too harsh.
We conclude that two of the exceptions set forth i it SCR 114 apply, in that Elliot was deprived of due process, and substantially different discipline is warranted in this suite. We further conclude that no further discipline is appropriate, in it light of the substantial penalties already imposed upon Elliot.
Accordingly, we vacate our January 19, 2001, order, and deny the petition for reciprocal discipline.
It is so ORDERED.
[T]his court shall impose the identical discipline unless the attorney demonstrates, or this court finds, that on the face of the record upon which the discipline is predicated it clearly appears:
(a) That the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process: or
(b) That there was such an infirmity of proof establishing the as to give rise to the clear conviction that the court could not, consistent with its duty, accept the decision of the other jurisdiction as fairly reached: or
(c)That the misconduct established warrants substantially different discipline in this state.