KERESEY v. STATE BAR OF NEVADA, 112 Nev. 1139 (1996)

923 P.2d 583

No. 27593Supreme Court of Nevada.
August 28, 1996

Original proceedings in prohibition or mandamus.

Attorney sought prohibition to preclude State Bar from proceeding with complaint alleging sexual relations with client. The supreme court, SPRINGER, J., held that Bar could not go forward on prosecution of six-year-old case that appeared never to have been a case as attorney denied any sexual relations and the “client” denied that the attorney had ever been her lawyer.

Petition granted.

Brady Williams Keresey, in Proper Person, Reno, for Petitioner.

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C. A. Olendorff, Bar Counsel, Rob Bare, Assistant Bar Counsel, Las Vegas, for Respondents.

OPINION
By the Court, SPRINGER, J.:

Attorney Brady Williams Keresey seeks a writ of prohibition prohibiting the State Bar of Nevada from proceeding against him on a complaint filed by the Bar on August 17, 1992, arising out of conduct alleged to have been committed in the summer of 1990.

In May of 1990 Mr. Keresey and his client, Ms. Katrina Kimura-Eckert, signed a document called “Agreement of Retainer and Professional Engagement.” In that document Ms. Eckert was designated as “Client” and Mr. Keresey was designated as “Attorney.” The document provided that Mr. Keresey was to “represent her in various matters.” Mr. Keresey, on his part, agreed that he would act as Ms. Eckert’s attorney and, specifically, that “under no circumstances at any time now, or in the future, will Attorney disclose to anyone, in or out of court, any information whatsoever of and concerning Client without Client’s express written permission.” This is the essence of the professional engagement agreement signed by Mr. Keresey and his client.

Mr. Keresey acted as Ms. Eckert’s attorney during her divorce case, in association with attorneys Ron Logar and Samuel Belford, at an agreed-upon hourly rate of $85.00 per hour. Despite the fact that Ms. Eckert filed a sworn affidavit in support of a motion for allowances in which she requested that her husband pay to Mr. Keresey for his legal services an interim attorney’s fee of $13,566.00, she later claimed, under oath, that Mr. Keresey “was never her lawyer.”

Claiming that the professional engagement document was a “sham” and that Mr. Keresey filed an attorney’s lien even though he was “never her lawyer,” Ms. Eckert brought these improbable claims to Bar officials. Although Ms. Eckert’s actual complaints are not part of this record, her complaints eventually became part

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of a formal Bar complaint which was filed by Bar counsel on August 17, 1992, about two years after the complaints were originally made. This is the only disciplinary charge that has ever been made against Mr. Keresey. A copy of the charging allegations of the August 1992 complaint are included in the margin.[1]

The first of Ms. Eckert’s formal charges against Mr. Keresey is that the professional engagement document was a “sham” and was signed by the parties to protect Ms. Eckert so that Mr. Keresey “could not be questioned in her pending divorce proceedings about their [allegedly romantic] relationship.” Quite obviously, the document would not protect Ms. Eckert from Mr. Keresey’s being “questioned” in her divorce case. Bar counsel mentioned to the Disciplinary Board that he did not “know how that agreement would have done that”; and one Board member chimed in with “That makes no sense.” The charge that the agreement was a “sham” designed only for the purpose of protecting Ms. Eckert and not for its stated purposes, did not, of course, make any sense; and Bar counsel appropriately advised the Disciplinary Board that he “would not be in a position to prove by clear and convincing evidence that the agreement . . . was in fact a sham agreement.[2]

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The Bar is now pursuing charges that Mr. Keresey signed a “sham” professional engagement agreement; and the only two charges contained in the August 17, 1992 complaint which the Bar now intends to pursue are: (1) that Mr. Keresey’s “romantic involvement with Ms. Eckert violated his duties to his client,” (2) that he was not, in fact, Ms. Eckert’s attorney and that, accordingly, he filed an attorney’s lien “for [legal] work not performed.” The Bar tells us in its opposition document that there are only two matters “remaining in dispute,” namely:

(1) whether Keresey engaged in a sexual relationship with Ms. Eckert; and
(2) whether he did in fact act as her attorney and, if so, to what extent. . . .

The question before us, then, is whether the Bar should be prohibited, under the circumstances of this case, from trying to prove at this time (in the absence of Ms. Eckert) that Mr. Keresey engaged in a sexual relationship with Ms. Eckert in 1990 and from trying to establish “whether he did in fact act as her attorney, and if so, to what extent.” Because of the long and intolerable delays (over six years since the alleged commission of the complained-of professional misconduct) and because of the due process implications inherent in such delay, we conclude that the Bar should be prohibited from “going forward” in the manner announced in their opposition document.

The two most salient reasons for putting a stop to this prosecution are (1) that two different Bar counsel have recommended to the Board that the complaint be dismissed and (2) that the Discipline Board itself admitted that the Bar has “dropped the ball” in his case and is responsible for the delay.

Two different Bar counsel have tried to dismiss the August 17, 1992 complaint. By the time of the first hearing (March 2, 1994), almost four years after the complained-of events, Bar counsel had become convinced that he could not prove a case against Mr. Keresey. Mr. Keresey has, during the course of these proceedings, incurred close to $40,000.00 in attorney’s fees and suffered other destructive consequences.[3] Because of this he was apparently

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willing to accept a private letter of reprimand in exchange for dismissal of the complaint, even though he has vehemently insisted throughout these proceedings that he was not guilty of any professional misconduct.

Bar counsel was very candid at the March 2, 1994 hearing and told the Board that he could not prove that the agreement was a sham and that he would “have a great amount of difficulty in proving by clear and convincing evidence that Mr. Keresey engaged in a sexual relationship with Ms. Eckert.” Bar counsel represented further that with regard “to the allegations concerning having sex . . . with a client, we don’t have a specific rule on that in Nevada.” With reference to Ms. Eckert’s sworn statement that Mr. Keresey “never was her lawyer,” Bar counsel stated that there was “no question that Mr. Keresey performed some legal services for Miss Katrina Eckert in the course of her divorce.” Bar counsel represented to the Board that Mr. Keresey was then willing to accept a private letter of reprimand relating to the manner in which he had drafted the professional engagement agreement and recommended that the complaint be dismissed.[4] The Board refused to accept this recommendation, and the complaint remained pending.

The matter lay dormant for almost one and one-half years, until August 3, 1995. By this time another Bar counsel had taken over the case. New Bar counsel conscientiously poured over page after page of documents in this file and argued to a newly-constituted

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Disciplinary Board the same argument that his predecessor had made — that the complaint should be dismissed. At the time of the second, August 1995 hearing Mr. Keresey had expressed his refusal to accept voluntarily any professional discipline, even a private letter of reprimand. Bar counsel moved that the “panel consider dismissal of this matter based upon a number of factors I’m going to outline here today.” Bar counsel told the Board that, “in fairness, I’ve looked very closely at her inconsistent statements . . . and I question her credibility, I really do.” On top of this, Bar counsel advised that he had not been successful in contacting Ms. Eckert and that she had apparently abandoned her complaint. Bar counsel advised the Board that the “State Bar does not intend to call any witnesses” and submitted the matter. Again, the Disciplinary Board refused to accept Bar counsel’s motion for dismissal.

At the Disciplinary Board’s direction, Bar counsel then hired a private investigator to search the land for Ms. Eckert. The investigator was eventually successful in locating Ms. Eckert, who told the investigator and Bar counsel that she would be willing to appear for a hearing. A hearing was set for October 5, 1995, but, as the Bar’s opposition document tells us, Ms. Eckert “failed to show up on October 5, 1995 or to otherwise contact the State Bar.” Nonetheless, the Disciplinary Boar still wants to proceed, without Ms. Eckert, in an attempt to prove that “Keresey engaged in a sexual relationship with Ms. Eckert” in 1990. Now Bar counsel is faced, despite his conviction that the complaint should be dismissed, with the duty of trying to prove, without any witness, that Mr. Keresey was sexually involved with a client in 1990.[5]

In addition to rejecting the recommendations of two different

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Bar counsel, the two disciplinary panels involved in this case appear to be ignoring their own appraisal of the cause of the delays in this case. Even as far back as the March 2, 1994 hearing, two and one-half years ago, the Bar was aware of the delay problem. During the March 1994 hearing Board Chairman Digesti was critical of the time that this complaint had been “languishing,” noting that “we do not think that the Bar office did an adequate job” in prosecuting this case (which Bar counsel believed to be unprovable). Mr. Digesti went on further to say: “[U]nfortunately, I think this sort of fell through the cracks, the ball was dropped.”

If we were more convinced of the legitimacy of the complaint filed against Mr. Keresey, we might be more tolerant of the Bar’s having let it fall through the cracks in 1994. It does appear, however, that two successive Bar counsel were correct in their appraisal of the complaint and that there is really nothing to the complaint. The Bar now tells us that it still wants to pursue the matter of a supposed 1990 “sexual relationship” with a client. Paradoxically, even though her statement is incredible on its face, complainant Eckert has maintained throughout that she was never a client of Mr. Keresey. No one seems to have noticed that Ms. Eckert took advantage of her “vulnerable” status as a client when she is claiming at the same time that she was not Mr. Keresey’s client.

This case has gone on long enough. Mr. Keresey has sworn that he did not have sex with his client. His client claims that she was not his client. Now the Bar, according to its opposition document, “is prepared to go forward” and to present evidence on the issue of “whether he did in fact act as her attorney,” but that (as charged in the complaint) “if he were her attorney, [a 1990] romantic involvement with Ms. Eckert violated his duties to his client.” (Emphasis supplied.) It is nightmarish. The Bar may not “go forward” on the prosecution of a six-year-old case that appears never to have been a case.

The parties have presented a number of legal arguments relating to violations of time limits set by Supreme Court rules relating to professional discipline cases and arguments relating to estoppel and due process violations brought about by Mr. Keresey’s inability to defend against these six-year-old charges. We do not find it necessary to deal with these legal arguments in this case. It is absolutely clear to this court that fundamental fairness and common sense mandate the termination of these prolonged and agonizing proceedings against Mr. Keresey.

The writ of prohibition will issue; and the Bar is ordered to dismiss all proceedings against Mr. Keresey.

STEFFEN, C. J., concurs. YOUNG, SHEARING, and ROSE, JJ., concur in result only.

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