IN RE DISCIPLINE OF TANNER, 34192 (Nev. 8-17-2000)

No. 34192.Supreme Court of Nevada.
August 17, 2000.

ORDER OF SUSPENSION AND PUBLIC REPRIMAND
This is an appeal from a decision of a hearing panel of the Southern Nevada Disciplinary Board. The panel found that attorney Mont E. Tanner had violated SCR 121 (confidentiality), SCR 157 (conflict of interest: general rule), SCR 170 (meritorious claims), SCR 172 (candor toward a tribunal), and SCR 203 (3) (misconduct involving dishonesty, fraud, deceit or misrepresentation). The panel recommended that Tanner receive a public reprimand and a 90-day suspension. The panel further recommended that the suspension be stayed and Tanner be placed on probation for one year, upon the following conditions: (1) that Tanner pay the costs of the proceeding, (2) that Tanner take and pass the MPRE, (3) that Tanner’s practice be monitored by a mentor during the probationary period, and (4) that Tanner attend the next Bridge the Gap program offered by the state bar.

Although the recommendations of the disciplinary panel are persuasive, this court is not bound by the panel’s findings and recommendation, and must examine the record anew and exercise independent judgment. See In re Kenick, 100 Nev. 273, 680 P.2d 972 (1984). Ethical violations must be proven by clear and convincing evidence, which this court has described as evidence which “`need not possess such a degree of force as to be irresistible, but there must be evidence of tangible facts from which a legitimate inference . . . may be drawn.'” In re Stuhff, 108 Nev. 629, 635, 837 P.2d 853, 856 (1992) (quoting Gruber v. Baker, 20 Nev. 453, 477, 23 P. 858, 865 (1890)).

We conclude that clear and convincing evidence supports the panel’s finding that Tanner violated SCR 121, SCR 157, SCR 170, SCR 172 and SCR 203 (3). We further conclude that the discipline recommended by the panel is appropriate. Accordingly, Tanner shall be suspended for a period of ninety (90) days. The suspension shall be stayed, and Tanner shall be placed on probation for a period of one year, upon the following conditions: (1) Tanner shall pay the costs of this disciplinary proceeding within thirty (30) days of the date of this order; (2) Tanner shall take and pass the MPRE during the one-year probation period; (3) Tanner’s practice shall be monitored during the one-year probation period by a mentor who shall be selected by the state bar, and who shall file quarterly progress reports with the state bar; and (4) Tanner shall attend, at his own expense, the next Bridge the Gap program offered by the state bar.

In addition, we authorize the publication, in accordance with SCR 121, of the following letter of public reprimand.

To: MONT E. TANNER, ESQ.

You were a salaried employee of the law firm of Clark, Greene Associates (“the Firm”) from approximately October 1991 until March 1, 1995. While so employed, you worked on a personal injury case for clients J. William and Sandra Bate (“the Bates”) and, in approximately September 1994, entered into a contingency fee arrangement with the Bates on behalf of the Firm.
You subsequently filed a civil complaint on behalf of the Bates in late 1994, styled J. William Bate and Sandra Bate v. Harold R. Syfert; Michael A. Simon; Roderick A. Richards and Harold Ingle (“the Bates’ case”). Thereafter, in December 1994, you received a settlement offer in the amount of $50,000 from counsel for defendant Syfert, Robert Vannah, which you ultimately rejected on behalf of the Bates.
In January or February 1995, you received a second settlement offer from Vannah, on behalf of his client, in the amount of $85,000. At the time you neither accepted nor rejected this offer on behalf of the Bates. Shortly thereafter, on March 1, 1995, with little or no notice, you resigned from the Firm.
On or about March 2, 1995, you met with A. Kent Greene, one of the partners of the Firm, for the purpose of determining the status and billing arrangements of certain cases on which you had been working prior to leaving the Firm. An agreement was reached wherein you would be permitted to retain some of these cases; however, the Firm would be paid for services rendered by you on its behalf up to and including the date you resigned. Additionally, in the event any of those cases were based on a contingency fee arrangement, the fees generated therefrom would be divided between you and the Firm on an equitable basis.
One of the cases you retained pursuant to this agreement was the Bates’ case, which you represented to Greene had little likelihood of recovery. You failed to disclose the two prior substantial settlement offers communicated by Vannah.
Very shortly after you left the Firm, you and Vannah discussed the prior $85,000 settlement offer and you apologized to Vannah for your delayed response to that particular offer. Furthermore, you admitted to Vannah that the reason for the delay was that you wanted to settle the case yourself and keep the entire one-third contingency fee, to the exclusion of the Firm.
In a letter dated March 6, 1995, you made a $95,000 counteroffer on behalf of the Bates to Vannah, which he accepted on behalf of his client by a letter dated March 8, 1995. Upon being informed of the settlement, Greene filed a notice of attorneys’ lien on March 14, 1995, to protect the Firm’s interest in the contingency fee pursuant to your agreement when you left the Firm.
In retaliation for Greene’s lien, you filed a grievance against him with the State Bar of Nevada, purportedly on behalf of the Bates. On the very day that you filed the grievance, you also filed, on behalf of yourself and the Bates, a lawsuit against Greene, the Firm, Vannah, and Vannah’s firm. The case was styled as J. William Bate, Sandra M. Bate, Mont E. Tanner, and Low Office of Mont E. Tanner v. Clark, Greene Associates, Ltd., A. Kent Greene, individually, Robert D. Vannah, individually, and Vannah, Costello, Howard Canepa (“the Tanner suit”). In that civil complaint, you disclosed in detail the bar grievance that you had filed against Greene. The complaint alleged that Greene’s lien prevented the Bates from receiving their portion of the settlement.
Furthermore, you needlessly embroiled the Bates in this litigation by including them as co-plaintiffs, given that your dispute with Greene was limited to that portion of the settlement proceeds which represented the contigency fee, not any portion to which the Bates would be entitled. This became even more apparent when the parties to the Tanner suit stipulated to release to the Bates their entire portion of the settlement shortly after the suit was commenced. Accordingly, your representation to the district court that Greene’s lien rendered the Bates unable to receive the full amount of their settlement was less than candid. The Bates should have received their full settlement despite this dispute.
In your lawsuit, you also named as defendants Vannah, individually, as well as his law firm. However, you failed to plead any causes of action against these particular defendants nor could you articulate a good faith argument for their inclusion in the suit.
Ultimately, your dispute with Greene over the one-third contingency fee was resolved by the district court in the Bates’ case, which determined that you had no interest in the contingency fee in question and awarded the fee in its entirety to the Firm. Consequently, the parties in the Tanner suit stipulated to a dismissal without prejudice.
You are hereby publicly reprimanded for the following violations of the Supreme Court Rules of Professional Conduct: SCR 121 (confidentiality), for disclosing in litigation the existence of the state bar grievance that you purportedly filed on behalf of the Bates; SCR 157 (conflict of interest), for unnecessarily embroiling the Bates in your personal lawsuit for fees and breach of employment contract; SCR 170 (meritorious claims), for naming Vannah and his firm as defendants in the Tanner suit without even so much as asserting a cause of action against them or a good faith basis for their inclusion, in a frivolous action calculated to harass, embarrass or otherwise intimidate; SCR 172 (candor toward a tribunal), for misrepresenting a material fact to a tribunal when you stated that the Bates could not recover their portion of the settlement because of Greene’s lien; and SCR 203 (3) (misconduct involving dishonesty, fraud, deceit or misrepresentation), for misrepresenting to Greene that the Bates’ case had little or no value when you had received two significant offers from opposing counsel, and for failing to disclose these offers, all in a dishonest attempt to obtain the entire contingency fee for yourself despite the Firm’s legitimate interest in said fee.

It is so ORDERED.[1]

ROSE, C.J. YOUNG, J. MAUPIN, J. SHEARING, J. AGOSTI, J. LEAVITT, J. BECKER, J.