No. 45430.Supreme Court of Nevada.
July 7, 2005.
Before: BECKER, C.J., ROSE, J., MAUPIN, J., GIBBONS, J., DOUGLAS, J., HARDESTY, J., PARRAGUIRRE, J.
ORDER IMPOSING RECIPROCAL DISCIPLINE
This is a petition under SCR 114 to reciprocally discipline attorney Robert J. Handfuss, based on his disbarment in New Jersey. Handfuss has not responded to the petition.[1]
Handfuss was admitted to practice law in Nevada on December 31, 1982. Until May 4, 2005, he was also licensed as an attorney in New Jersey. By order filed on May 4, 2005, the New Jersey Supreme Court approved its Disciplinary Review Board’s recommendation that Handfuss be disbarred. The discipline was based on Handfuss’ violation of the New Jersey equivalents of SCR 151 (competence), SCR 153 (diligence), SCR 165 (safekeeping of property), and SCR 200(2) (failure to respond to disciplinary authority).
The New Jersey disbarment was based on seventeen matters involving the purchase or refinancing of real property. Handfuss was found to have failed to cancel sellers’ mortgages so that title insurance policies were issued subject to pre-existing mortgages, and he failed to record a new mortgage. Handfuss also failed to deliver entrusted funds to a third party and failed to pay for title insurance. Furthermore, Handfuss failed to respond to the New Jersey bar’s requests for information and did not appear in the court proceedings leading to his disbarment.
Aggravating circumstances considered by the New Jersey Supreme Court were: (1) that Handfuss had a prior disciplinary record, which showed identical violations in 2001 and 2002; (2) that the current violations occurred during the same time frame as the previous misconduct, from October 1998 to November 2001; and (3) that the Disciplinary Review Board found that Handfuss’s “ethics character is unsalvageable.” The New Jersey Supreme Court found no mitigating circumstances.
SCR 114(4) provides that this court shall impose identical reciprocal discipline unless the attorney demonstrates or this court determines that one of three exceptions applies:
(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 misconduct 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.
Discipline elsewhere is res judicata, as SCR 114(5) also provides, “[i]n all other respects, a final adjudication in another jurisdiction that an attorney has been guilty of misconduct conclusively establishes the misconduct for the purposes of a disciplinary proceeding in this state.”[2]
Handfuss has failed to provide any affidavits or other evidence to meet his burden of proving that any of the exceptions applies and that he should not be disbarred in Nevada. Consequently, we grant the petition. Handfuss shall be disbarred from the practice of law fifteen days after entry of this order and shall comply with the provisions of SCR 115.
It is so ORDERED.[3]