IN RE: DISCIPLINE OF CHRISTOPHER R. ARABIA

137 Nev., Advance Opinion 51

IN THE SUPREME COURT OF THE STATE OF NEVADA

IN THE MATTER OF DISCIPLINE OF No. 82173

CHRISTOPHER R. ARABIA, BAR NO.

9749. Fi E 3

Automatic review of a disciplinary board hearing panel's

recommendation for attorney discipline.

Attorney publicly reprimanded.

Pitaro & Fumo, Chtd., and Thomas F. Pitaro and Emily K. Strand, Las

Vegas,

for attorney Cluistopher R. Arabia.

Daniel M. Hooge, Bar Counsel, Las Vegas, and R. Kait Flocchini, Assistant

Bar Counsel, Reno,

for State Bar of Nevada.

BEFORE THE SUPREME COURT, CADISH, PICKERING, and

HERNDON, JJ.

OPINION

By the Court, HERNDON, J.:

Attorneys who practice law in Nevada are "subject to the

exclusive disciplinary jurisdiction of the supreme court and the disciplinary

boards and hearing panels created by [the Supreme Court Rules]." SCR

99(1). In this attorney discipline case, we are asked to make an exception

for attorneys who hold public office either because they are entitled to

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qualified immunity or because they are subject exclusively to the

jurisdiction of the Commission on Ethics for misconduct committed while in

office. We reject both arguments. When an attorney is elected to public

office and then violates the Rules of Professional Conduct, the attorney's

position as an elected official does not entitle the attorney to qualified

immunity from professional discipline. Further, the Commission on Ethics'

authority over public officers is not exclusive. Therefore, an attorney who

engages in professional misconduct while in public office remains subject to

the disciplinary jurisdiction of this court and the disciplinary boards and

hearing panels created under the Supreme Court Rules regardless of

whether the misconduct also falls within the Commission on Ethics'

jurisdiction. Because the State Bar proved by clear and convincing evidence

that attorney Christopher Arabia violated two rules of professional conduct

and a public reprimand sufficiently serves the purpose of attorney discipline

under the circumstances, we adopt the hearing panel's recommendation and

reprimand Arabia for violations of RPC 1.7 (conflict of interest: current

clients) and RPC 8.4(d) (misconduct prejudicial to the administration of

justice).1

FACTS

Arabia has been licensed to practice law in Nevada since 2006

and has no prior discipline. He is currently the duly elected Nye County

District Attorney.

On September 15, 2019, Arabia terminated Michael Vieta-

Kabell's employment as an assistant district attorney. Vieta-Kabell

maintained that he was terminated because he had been attempting to

'Pursuant to NRAP 34(f)(1), we have determined that oral argument

is not warranted.

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unionize assistant district attorneys, but Arabia asserts the termination

was the result of Vieta-Kabell's job performance.

Vieta-Kabell filed an appeal of his termination with Nye County

on September 23, 2019. The Human Resources Director for Nye County,

Danelle Shamrell, sent both Vieta-Kabell and Arabia an email on

September 24, scheduling the appeal for a hearing. That same day, Arabia

sent an email to Shamrell, but not Vieta-Kabell, stating, "[i]t is my legal

opinion as the Nye County District Attorney that you must cease and desist

from conducting the proposed hearing." Arabia's email asserted that

because Vieta-Kabell was an at-will employee, Arabia had the right to

terminate Vieta-Kabell at any time, and thus, an appeal hearing was not

available to Vieta-Kabell. Arabia ended the email by stating, "[p]lease

confirm via e-mail no later than 4:00 p.m. on Thursday, September 26, 2019

that you have vacated the proposed hearing regarding Mr. Vieta-Kabell."

At the subsequent disciplinary hearing, Shamrell testified that "[t] he DA's

Office provides legal advice to the County, and he told me to cancel it. And

so, based on the fact that hes who he is, the DA, I did what I was told to

do." Thus, the next day, on September 25, Shamrell emailed Vieta-Kabell

stating, "[b]ased on direction from Chris Arabia, Nye County District

Attorney I have been instructed to cease and desist from conducting the

requested hearing and as such there will not be the hearing."

Vieta-Kabell filed a grievance against Arabia with the State

Bar. Arabia responded to the grievance stating he "was not acting as the

County's counsel with respect to this matter and therefore provided no

advice or counsel." Arabia further asserted that "[Ole County had Attorney

[Rebecca] Bruch representing it and decided to cancel the hearing."

However, Arabia later provided emails demonstrating that Bruch was not

retained until the morning of September 25, after he had sent the email

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requesting the hearing be canceled. Additionally, Bruch testified that when

she was retained by Nye County, her scope of representation did not include

whether there should be a County hearing, and instead, related to an

Employee Management Relations Board claim filed by Vieta-Kabell.

Before the disciplinary hearing, Arabia moved to dismiss the

bar complaint twice, the first time because he asserted he was protected

under qualified immunity, and the second time because he argued the State

Bar lacked jurisdiction over him as an elected official. Arabia's motions

were denied.

At the hearing, Arabia testified that he did not direct the

hearing to be vacated and that "it was a request." In contrast to his letter

responding to the grievance, he testified that he did not wait for Bruch to

become involved because he did not think that the hearing would even

trigger her involvement. He acknowledged that if terminating Vieta-

Kabell's employment "was wrong, then I'm going to take the hit on that. I

get that. I'm talking about me as the District Attorney." Arabia, however,

also stated that telling the County not to hold the hearing was the right and

proper thing to do.

The hearing panel found in a 2-1 vote that Arabia violated RPC

1.7 (conflict of interest: current clients) and RPC 8.4(d) (misconduct

prejudicial to the administration of justice), but unanimously found that his

conduct was negligent, rather than knowing or intentional. The panel found

two aggravating circumstances (substantial experience in the practice of

law and failure to accept wrongfulness of the conduct) and one mitigating

circumstance (lack of prior discipline). The panel has recommended Arabia

be reprimanded and ordered to pay the costs of the disciplinary proceeding.

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DISCUSSION

Before we consider the hearing panel's findings and the

appropriate discipline, we must address Arabia's arguments that this

matter should be dismissed because he has qualified immunity and the

State Bar lacked jurisdiction over him.2

Qualified immunity does not apply to attorney disciplinary proceedings

Arabia contends that he cannot be professionally disciplined

because his actions are entitled to protection under the qualified immunity

doctrine, and thus, this matter must be dismissed. We disagree.

The qualified immunity doctrine "provides that government

actors following statutory guidelines or exercising their discretion are

immune from common law tort actions in connection with their statutory

duties or their discretion." City of Boulder City v. Boulder Excavating, Inc.,

124 Nev. 749, 756, 191 P.3d 1175, 1179 (2008). NRS 41.032(2) provides in

relevant part that "no action may be brought . . . against an . . . officer or

employee of the State . . . which is . . . ased upon the exercise or

2Arabia also contends the State Bar should have been disqualified

from pursuing the underlying disciplinary complaint because Vieta-Kabell

worked for the State Bar when he filed the grievance and because the State

Bar has employed two other attorneys Arabia fired from the Nye County

District Attorney's Office. While Vieta-Kabell filed the underlying

grievance during his State Bar employment, his employment lasted just

one-and-a-half months, and because Arabia did not respond to the grievance

until after Vieta-Kabell left the State Bar, Vieta-Kabell was not employed

by the State Bar during the majority of the investigation or disciplinary

proceedings. The record further demonstrates that the two former Nye

County Deputy District Attorneys who worked at the State Bar were

properly screened from this matter. Additionally, in an abundance of

caution, this matter was handled by bar counsel in the Northern Nevada

office, when it would normally be assigned to the Southern Nevada office.

Thus, we conclude there was no conflict of interest requiring the State Bar's

disqualification.

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performance or the failure to exercise or perform a discretionary function or

duty." The first step to determining whether qualified immunity is

available to Arabia is to determine if an attorney discipline proceeding

qualifies as an "action" under NRS 41.032.

As discussed in Boulder City, qualified immunity generally

applies in actions where the plaintiff seeks damages or redress for the

government employee's actions. 124 Nev. at 756, 191 P.3d at 1179. An

attorney discipline proceeding is not such an action. The purpose of an

attorney discipline proceeding is to protect the public, the courts, and the

legal profession, not to make the grievant whole or punish the attorney.

State Bar of Nev. v. Claiborne, 104 Nev. 115, 213, 756 P.2d 464, 527-28

(1988). Therefore, even though disciplinary proceedings are generally

treated as civil actions, see SCR 119(3) (providing that "[e]xcept as

otherwise provided in these rules, the Nevada Rules of Civil Procedure and

the Nevada Rules of Appellate Procedure apply in disciplinary cases"), they

are not the type of common law actions to which qualified immunity

generally applies.

The conclusion that qualified immunity does not extend to an

attorney discipline proceeding finds support in cases where courts have

determined that a prosecutor enjoyed qualified immunity from civil

liability. In particular, courts often point to the availability of professional

discipline as a counterbalance that offers a means to deter misconduct when

qualified immunity otherwise protects a prosecutor from civil liability. For

example, the United States Supreme Court has explained that a

prosecutor's immunity from liability in Section 1983 suits "does not leave

the public powerless to deter misconduct" because a prosecutor is subject

"to professional discipline by an association of his peers." Imbler v.

Pachtrnan, 424 U.S. 409, 428-29 (1976). Similarly, a few of our sister states

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have recognized that where a civil action must be dismissed because of

qualified immunity or litigation privilege, the attorney may still be subject

to professional discipline. See, e.g., Silberg v. Anderson, 786 P.2d 365, 373-

74 (Cal. 1990) (recognizing that although a tort action based on

communications between participants in earlier litigation is precluded

under immunity or privilege principles, an attorney may nevertheless be

subject to discipline for such a communication); Wright v. Yurko, 446 So. 2d

1162, 1164 (Fla. Dist. Ct. App. 1984) (providing that there can be no civil

action for slanderous statements made during the course of an action and

the remedies for such slander "are left to the discipline of the courts, the bar

association, and the state); Hawkins v. Harris, 661 A.2d 284, 288 (N.J.

1995) ("Although the public policy served by the absolute privilege

immunizes the defamer from a civil damage action, the privilege does not

protect against professional discipline for an attorney's unethical conduct.");

Kirschstein v. Haynes, 788 P.2d 941, 950 (Okla. 1990) (recognizing that the

litigation privilege may apply to protect statements made by an attorney

from tort liability, but such privilege does not protect against professional

discipline if those statements are also unethical conduct), superseded by rule

on other grounds as stated in Dani v. Miller, 374 P.3d 779, 785 n.1 (Okla.

2016); see also Casey L. Jernigan, The Absolute Privilege Is Not a License to

Defame, 23 J. Legal Prof. 359, 365-70 (1999); Judith Kilpatrick, Regulating

the Litigation Immunity: New Power and a Breath of Fresh Air for the

Attorney Discipline System, 24 Ariz. St. L. J. 1069, 1081 (1992).

Because attorney disciplinary proceedings are a mechanism for

deterring professional misconduct and protecting the public, the courts, and

the legal profession, we conclude a disciplinary proceeding is not the type of

action to which NRS 41.032 applies. Therefore, an attorney who is a public

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officer or employee cannot rely on qualified immunity to escape professional

discipline.

The State Bar had jurisdiction over the underlying grievance against Arabia

Arabia next contends the State Bar lacked jurisdiction over him

because only the Commission on Ethics can bring a disciplinary complaint

against him for conduct undertaken as a public officer.3 We disagree

because the Commission's jurisdiction over public officers is not exclusive.

The Legislature passed the Nevada Ethics in Government Law,

NRS Chapter 281A, to promote the integrity and impartiality of public

officers. See NRS 281A.020 (stating legislative findings and declarations);

1977 Nev. Stat., ch. 528, § 3, at 1103 (noting the passing of the law). In

doing so, the Legislature created the Commission on Ethics and authorized

it to issue advisory opinions and resolve ethics complaints against public

officers. NRS 281A.680; NRS 281A.710; NRS 281A.765. "[T]he Commission

has jurisdiction to investigate and take appropriate action regarding an

alleged violation of [NRS Chapter 281A1 by a public officer" when an ethics

complaint has been filed with or initiated by the Commission. NRS

281A.280(1).

When interpreting a statute, we focus on its plain language.

City of Sparks v. Reno Newspapers, Inc., 133 Nev. 398, 402, 399 P.3d 352,

356 (2017) ("When interpreting a statute, if the statutory language is

facially clear, this court must give that language its plain meaning."

3Arabia acknowledged in his reply brief that the State Bar and the

Commission on Ethics could have dual jurisdiction except where qualified

immunity is at issue. To the extent Arabia still challenges the State Bar's

jurisdiction despite our conclusion regarding qualified immunity, we

address that jurisdictional argument herein.

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(internal quotation marks omitted)). Nothing in NRS 281A.280(1) or

elsewhere in NRS Chapter 281A states that the Commission's jurisdiction

is exclusive.4 In contrast, the Legislature has used explicit language

elsewhere when it intends to grant exclusive jurisdiction. For example,

NRS 1.440(1) provides that the Commission on_ Judicial Discipline "has

exclusive jurisdiction" to discipline judges. See also NRS 3.223(1) (affording

the family court "original, exclusive jurisdiction" over certain identified

proceedings); NRS 7.275(1) (providing that the State Bar of Nevada is

"under the exclusive jurisdiction" of the Nevada Supreme Court); NRS

32.255 (providing that the court that appoints a receiver "has exclusive

jurisdiction to direct the receiver and determine any controversy related to

the receivership or receivership property"); NRS 62B.320(1) (providing that

"the juvenile court has exclusive original jurisdiction" over certain

proceedings involving a child in need of supervision).

Similarly, nothing in the Supreme Court Rules suggests that

the normal disciplinary authority over attorneys practicing law in Nevada

is limited when the attorney involved is an elected official. The State Bar

is authorized to investigate and prosecute all possible attorney misconduct.

SCR 104(1)(a), (c) (providing "State Bar counsel shall . . . [i]nvestigate all

matters involving possible attorney misconduct" and "[p]rosecute all

proceedings under these rules"). SCR 99(1) provides that "[E]very attorney

admitted to practice law in Nevada . . . is subject to the exclusive

4 In fact, NRS 281A.280(2) recognizes that the Commission on Ethics'

jurisdiction is not exclusive when the grievance concerns an employment

issue. See NRS 281A.280(2) (providing dual jurisdiction when an

employment-related grievance pertains to alleged discrimination or

harassment but also includes separately or concurrently alleged conduct

that is sanctionable under NRS Chapter 281A).

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disciplinary jurisdiction of the supreme court and the disciplinary boards

and hearing panels created by these rules." (Emphasis added.)

Accordingly, the State Bar has jurisdiction to pursue attorney discipline

against any attorney practicing law in Nevada, regardless of whether the

attorney is an elected official.

The scope of the Commission's jurisdiction further indicates

that its jurisdiction is not exclusive when it comes to public officers who are

attorneys. Specifically, the Commission only has jurisdiction over alleged

violations of the ethics standards set forth in NRS Chapter 281A. Those

standards are not coextensive with the Rules of Professional Conduct that

establish ethical guidelines for attorneys practicing law in this state. For

example, RPC 3.8(f) lays out special responsibilities for prosecutors,

including not "making extrajudicial comments that have a substantial

likelihood of heightening public condemnation of the accused." There is no

similar provision in the ethical standards set forth in NRS 281A.400-.550.

Thus, if the Commission had exclusive jurisdiction over an elected district

attorney, there would be no means to deter a prosecutor or protect the public

and the profession when a prosecutor engaged in misconduct that clearly

violates the Rules of Professional Conduct but does not also implicate the

ethics standards set forth in NRS Chapter 281A. That absurd result further

convinces us that an attorney's election to public office does not deprive the

State Bar of its authority to initiate disciplinary proceedings against that

attorney for a violation of the Rules of Professional Conduct.

Because nothing in NRS Chapter 281A provides the

Commission on Ethics with exclusive jurisdiction and the attorney

discipline system serves a different purpose than the Ethics in Government

Law codified in NRS Chapter 281A, we conclude the State Bar could proceed

with disciplinary proceedings against Arabia regardless of whether his

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conduct also fell within the Commission on Ethics jurisdiction. If an

attorney who is subject to NRS Chapter 281A violates the Rules of

Professional Conduct and the ethics standards in NRS Chapter 281A, the

State Bar disciplinary process would address the violation of the Rules of

Professional Conduct and the Commission on Ethics would address the NRS

Chapter 281A violation. Any discipline imposed by the Commission on

Ethics could be considered in the State Bar disciplinary process. See SCR

102.5(2)(1) (providing that "imposition of other penalties or sanctions"

qualify as mitigating circumstances in disciplinary proceedings).

Accordingly, the Disciplinary Panel Chairman did not err by denying

Arabia's motion to dismiss for lack of jurisdiction on this ground.

Substantial evidence supports the panel's findings of misconduct

As to the merits of the complaint, Arabia argues the State Bar

failed to prove the allegations by clear and convincing evidence because

(1) he had no personal stake in the outcome of the County hearing so he had

no conflict of interest, and (2) he did not exert control over County

employees to have the hearing vacated. We disagree.

The State Bar has the burden of showing by clear and

convincing evidence that Arabia committed the violations charged. In re

Discipline of Drakulich, 111 Nev. 1556, 1566, 908 P.2d 709, 715 (1995). To

be clear and convincing, evidence "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 Discipline of Schaefer, 117

Nev. 496, 515, 25 P.3d 191, 204 (internal quotation marks omitted), as

modified by 31 P.3d 365 (2001). Our review of the panel's findings of fact is

deferential, SCR 105(3)(b), and we will uphold the factual findings

regarding an attorney's misconduct if they "are not clearly erroneous and

are supported by substantial evidence," Sowers v. Forest Hills Subdiv., 129

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Nev. 99, 105, 294 P.3d 427, 432 (2013) (explaining deferential standard of

review in civil actions).

Arabia violated RPC 1.7

RPC 1.7(a) precludes a lawyer from representing "a client if the

representation involves a concurrent conflict of interest." A concurrent

conflict of interest may exist if "[t]here is a significant risk that the

representation of one or more clients will be materially limited . . . by a

personal interest of the lawyer." RPC 1.7(a)(2). If a lawyer believes he or

she may still provide competent and diligent representation in spite of the

concurrent conflict of interest, the lawyer may still represent the client if,

among other requirements, lelach affected client gives informed consent,

confirmed in writing." RPC 1.7(b)(4).

The impetus of the conflict of interest rule is to ensure "Woyalty

and independent judgment], which] are essential elements in the lawyer's

relationship to a client." Model Rules of Proll Conduct r. 1.7 cmt. 1 (Am.

Bar Ass'n 2016). Thus, a "lawyer's own interests should not be permitted

to have an adverse effect on representation of a client." Id. at cmt. 10. "For

example, if the probity of a lawyer's own conduct in a transaction is in

serious question, it may be difficult or impossible for the lawyer to give a

client detached advice," Id. "The primary rationale behind the general rule

on adverse personal interests is simple: When theres friction between the

interests of a lawyer and a client, the lawyer's loyalties are divided or

confused and her effectiveness is diminished." Lawyers Manual on

Professional Conduct: Practice Guides, 51 Conflicts of Interest 401,

401.20.50 (Am. Bar Ass'n & Bureau of Nat'l Affairs, Inc. 2021). In

particular, when a client's interests are inconsistent with the lawyer's

personal interests, the lawyer "may be tempted to recommend courses of

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action that benefit the lawyer more than the client, or may be inclined to

avoid choices that could damage or impair [the lawyer's) own interests." Id.

Personal interests that may impair a lawyer's representation of

a client include "the financial, business, property, professional or personal

aspects of the lawyer's life." Id. at 401.10. While the most obvious examples

involve the lawyer's financial or familial relationships, not all personal

conflicts fall into these areas. Restatement (Third) of the Law Governing

Lawyers § 125 cmt. c (Am. Law Inst. 2000). "Clients interests also clash

sometimes with their attorneys' own interests in their professional

reputations and affiliations." 51 Conflicts of Interest at 401.20.190. Thus,

a lawyer's political, social, professional, or emotional interests or beliefs

may lead the lawyer to act in the lawyer's own self-interest or in others'

interests, rather than in their clienes best interest. Bruce A. Green &

Rebecca Roiphe, Rethinking Prosecutors' Conflicts of Interest, 58 B.C. L.

Rev. 463, 472 (2017). Accordingly, determining if a lawyer's personal

interests create a concurrent conflict with a client depends on the facts and

circumstances of each case.

Considering the facts and circumstances here, substantial

evidence supports the panel's finding that Arabia had a concurrent conflict

of interest because he had a personal interest in ensuring Nye County

vacated Vieta-Kabell's termination appeal hearing. First, it was in Arabia's

interest to have the appeal hearing not only vacated, but vacated quickly.

Arabia sent his cease-and-desist email almost immediately after the

hearing was scheduled. He acknowledged• at the disciplinary hearing that

he knew it was common practice for the County to retain independent

counsel in similar circumstances and generally that counsel was retained

quickly. Thus, the record supports that he knew it would be in his best

interest to immediately send a strongly worded email to the County's

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human resources director stating his legal opinion that she must vacate the

hearing. Second, Arabia had a professional interest in ensuring the hearing

was vacated. It is clear from the record that Arabia did not want to be forced

to rehire Vieta-Kabell. Further, Vieta-Kabell's grievance complains that he

was terminated primarily because he was attempting to unionize the

deputy district attorneys in the office, and if such a complaint were

addressed at the appeal hearing, a significant conflict-of-interest risk

emerges based on Arabia's interest in maintaining his professional

reputation. Arabia even acknowledged he had a professional interest at the

disciplinary hearing by stating that he would "take the hit" if terminating

Vieta-Kabell had been wrong.

In a case addressing similar conflict-of-interest concerns, the

New Jersey Supreme Court determined that even though the Legislature

permitted the same person to hold two municipal offices, an attorney could

not serve as both the municipal attorney and the clerk-administrator for the

saine municipality because such service would present concurrent conflicts

of interest based on the attorney's own professional interests. In re Advisory

Comm. on Prop Ethics, Docket No. 18-98, 745 A.2d 497, 502 (N.J. 2000). In

reaching that decision, the court reasoned that there would likely come a

time when the municipal attorney would have to give the municipal body—

the mayor and council—advice concerning his own conduct as clerk-

administrator. Id. For example, the court noted there may come a time

when the clerk-administrator's decision in an employment matter is

challenged and the municipal body would need access to independent

counsel and advice from the municipal attorney concerning whether the

employment decision was proper. Id.

To the extent Arabia argues the County had independent

counsel appointed to represent it in this matter, the record demonstrates

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that the County did not contact Bruch until after Arabia sent his cease-and-

desist email, and even then the County contacted Bruch about a different

matter.5 Additionally, the panel's finding that Arabia's email qualified as

legal advice is supported by substantial evidence. While the dissent asserts

that Arabia testified he was acting in his executive capacity, the record does

not support this assertion as Arabia never provided testimony regarding his

"executive capacity." Additionally, in the email itself, Arabia wrote, "It is

my legal opinion as the Nye County District Attorney . . . ." (Emphasis

added.) Further, Shamrell testified that she regularly received legal advice

on County matters from Arabia, and nothing in the email indicated this

instance was different from any other time Arabia provided such advice.

Therefore, the record supports the panel's conclusion that Arabia sent his

cease-and-desist email as part of his representation of the County. Because

there was a significant risk that Arabia's representation of the County

would be materially limited by his personal interest in having the appeal

hearing vacated, Arabia had a duty to disclose the conflict of interest to the

County and obtain a written waiver before advising the County on whether

the appeal hearing was appropriate, which he did not do here. Accordingly,

substantial evidence supports the panel's finding that Arabia violated RPC

1.7 (conflict of interest: current clients).6

5The dissent overstates the scope of Bruch's representation and the

impact it had on the County's decision to vacate the hearing. Bruch testified

that she was not retained in relation to this hearing.

6Whi1e the dissent concludes that the record does not support the

panel's finding that Arabia violated RPC 1.7(a)(2) because there was not

substantial evidence that Arabia had a disabling personal interest that

caused harm to his representation of Nye County, the dissent misstates the

rule. RPC 1.7(a)(2) provides that a concurrent conflict of interest may exist

if "Where is a significant risk that the representation of one or more clients

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Arabia violated RPC 8.4(d)

RPC 8.4(d) provides lilt is professional misconduct for a lawyer

to . . . fe]ngage in conduct that is prejudicial to the administration of

justice." "For purposes of this rule, prejudice requires either repeated

conduct causing some harm to the administration of justice or a single act

causing substantial harm to the administration of justice." In re Discipline

of Colin, 135 Nev. 325, 332, 448 P.3d 556, 562 (2019) (internal quotation

marks omitted). RPC 8.4(d) addresses conduct that "is intended to or does

disrupt a tribunal." Id. The rule applies to conduct occurring inside or

outside of a courtroom and because other adjudicatory bodies, such as

administrative tribunals, may administer justice, RPC 8.4(d) applies to an

attorney's conduct in relation to an administrative proceeding. See id.; RPC

1.0(m) ("Tribunal denotes a court, an arbitrator in a binding arbitration

proceeding or a legislative body, administrative agency or other body acting

in an adjudicative capacity. A legislative body, administrative agency or

other body acts in an adjudicative capacity when a neutral official, after the

presentation of evidence or legal argument by a party or parties, will render

a binding legal judgment directly affecting a party's interests in a particular

matter.")7

The record demonstrates that Sharnrell canceled the hearing

based solely on Arabia's cease-and-desist email. Arabia's conduct not only

will be materially limited . . . by a personal interest of the lawyer."

(emphasis added).

7While we reference the definition of "tribunal" under RPC 1.0(m) as

part of our discussion of Arabia's violation of RPC 8.4(d), we note that

Arabia has not challenged whether the instant proceedings met the

definition of "tribunal."

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disrupted an administrative tribunal, but prohibited the administrative

proceeding from ever occurring.8 Thus, substantial evidence supports the

panel's finding that Arabia's conduct violated RPC 8.4(d) (misconduct

prejudicial to the administration of justice).

A reprimand is appropriate

In determining the appropriate discipline, this court weighs

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). Although this court determines the

appropriate discipline de novo, SCR 105(3)(b), the hearing panel's

recommendation is persuasive, Discipline of Schaefer, 117 Nev. at 515, 25

P.3d at 204.9

8Ifthe hearing had been improper as Arabia alleged, that would have

been determined in due course, instead of the hearing being canceled on the

advice of someone who had a personal interest in the hearing never

occurring. We note even the dissent acknowledges that the issue of whether

the hearing was proper should not have been resolved on such short notice.

If Arabia had not expedited his cease-and-desist demand, Nye County

would have had a matter of weeks to determine whether it should conduct

the hearing.

Nevertheless, the issue presented here is not whether Arabia gave

correct advice, but whether he should have given the advice at all based on

a conflict of interest, without a written waiver. Because this matter

concerns Arabia's ethical violations and does not concern whether the

hearing was proper, we do not reach that issue.

9Arabia focused his arguments on whether he committed misconduct

and did not present any argument regarding what would be appropriate

discipline for such misconduct.

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Arabia violated duties owed to his client (conflict of interest)

and the profession (misconduct). Nye County was potentially injured, and

Arabia interfered with an administrative proceeding.1° The record supports

the panel's finding that Arabia's violations were negligent. The baseline

sanction for Arabia's conduct, before consideration of aggravating and

mitigating circumstances, is reprimand. See Compendium of Professional

Responsibility Rules and Standards: Standards for Imposing Lawyer

Sanctions, Standard 6.23 (Am. Bar Ass'n 2017) (explaining that reprimand

is appropriate when a lawyer negligently fails to comply with a rule "and

causes injury or potential injury to a client or other party, or causes

interference or potential interference with a legal proceeding"). The record

supports the two aggravating circumstances (substantial experience in the

practice of law and failure to accept the conduct was wrong) and the single

mitigating circumstance (lack of prior discipline). Considering all four

factors, we conclude the panel's recommended reprimand serves the

purpose of attorney discipline. State Bar of Nev. v. Claiborne, 104 Nev. 115,

10We disagree with the dissent's conclusion that interference with an

administrative proceeding based on an attorney's own personal interest can

cause no harm to the client. While the dissent argues that Nye County's

position in other proceedings regarding the termination of Vieta-Kabell

could have been hindered by the internal, administrative proceeding, the

dissent overlooks the County's interest in ensuring its own internal policies

and procedures are followed.

Further, while the dissent disagrees with the imposition of a

reprimand because the dissent concludes the County was not harmed, the

ABA Standards only require a potential injury to the client to warrant a

reprimand. Compendium of Professional Responsibility Rules and

Standards: Standards for Imposing Lawyer Sanctions, Standard 6.23 (Am.

Bar Ass'n 2017).

18

213, 756 P.2d 464, 527-28 (1998) (recognizing that the purpose of attorney

discipline is to protect the public, courts, and the legal profession).

CONCLUSION

An attorney cannot avoid professional discipline by asserting

qualified immunity. Further, even if an attorney is an elected official, the

State Bar has authority to investigate and prosecute alleged violations of

the Rules of Professional Conduct, and this court, along with the

disciplinary boards and hearing panels, has exclusive jurisdiction to

discipline an attorney when such violations are proven. Because

substantial evidence supports the paners findings that Arabia violated RPC

1.7 and RPC 8.4(d), we conclude a reprimand is appropriate discipline.

Accordingly, we hereby reprimand attorney Christopher R.

Arabia for violating RPC 1.7 (conflict of interest: current clients) and RPC

8.4(d) (misconduct prejudicial to the administration of justice).

Additionally, Arabia must pay the costs of the disciplinary proceeding plus

$1,500 under SCR 120(1) & (3) within 30 days from the date of this opinion.

Herndon

I concur:

Cadish

afiK , J.

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PICKERING, J., concurring in part and dissenting in part:

I join the court in rejecting both Arabia's qualified immunity

claim and his argument that only the Nevada Commission on Ethics can

discipline an elected district attorney. I write separately because I disagree

that the record supports the professional discipline imposed. It takes clear

and convincing evidence to establish a violation of the Nevada Rules of

Professional Conduct (RPC), In re Discipline of Colin, 135 Nev. 325, 329,

448 P.3d 556, 560 (2019), and "the Rules presuppose that disciplinary

assessinent of a lawyer's conduct will be made on the basis of the facts and

circumstances as they existed at the time of the conduct in question and in

recognition of the fact that a lawyer often has to act upon uncertain or

incomplete evidence of the situation." RPC 1.0A(c); see Model Rules of Profl

Conduct, Scope, ¶ 19 (Am. Bar Ass'n 2018).1 Accepting this perspective, I

have difficulty concluding that the email Arabia sent the Nye County

human resources director on September 24, 2019 violated the RPC. At

most, the email amounted to a negligent and isolated violation of RPC 1.7(a)

(prohibiting concurrent conflicts of interest) that did not cause the client

harm. The strongest sanction appropriate for such a violation is an

admonition, not a formal public reprimand.

I.

The events giving rise to the disciplinary charges against

Arabia took place over a few days time. On September 18, 2019, Arabia

terminated a Nye County deputy district attorney. Several days later, on

September 23, the deputy emailed the Nye County human resources

'Nevada drew its RPC from the ABA Model Rules of Professional

Conduct. Although it did not adopt the preamble and comments to the ABA

Model Rules, RPC 1.0A provides that they "may be consulted for guidance

in interpreting and applying" the RPC.

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director, asking to appeal his termination to the Nye County manager

pursuant to an informal review process that the Nye County Code and

Personnel Policy Manual established for certain nonexempt county

employees. The next morning, the human resources director sent Arabia

and the deputy an email setting the review hearing the deputy requested

two weeks out, for October 9. The email asked the parties to reply and

confirm their availability.

Arabia did not believe that the informal review process applied

to the deputy because it would substitute the county manager for the

district attorney as the person with the final say over the deputy's

termination. Still new to the office, Arabia consulted with two long-term

chief deputy district attorneys (both of whom later testified at the State Bar

disciplinary hearing). They advised that the review process did not apply

to Nye County deputy district attorneys, whose employment was at will and

whose hiring and firing NRS 252.070 made the district attorney's

prerogative, exclusively.2 At 4:42 p.m. on September 24, Arabia responded

to the human resources director's email of the day before with his own email

explaining this position. In his email, which Arabia did not copy the deputy

on, he objected to the October 9 hearing and demanded that the human

resources director cancel it. About 24 hours later, on September 25 at 3:57

p.m., the human resources director sent emails to both Arabia and the

deputy canceling the hearing.

20ne of the two chief deputy district attorneys had worked for the Nye

County district attorney's office for 25 years. She could not recall a single

instance where the county manager reviewed a deputy district attorney's

termination pursuant to the informal hearing process the deputy invoked

here.

2

The disciplinary panel finds that "[b]etween September 23,

2019 and September 25, 2019, no other attorney, representing Nye County,

cornmunicated with the Nye County Human Resources Director regarding

the requested appeal hearing." To the extent this finding suggests that the

human resources director acted alone and without access to a lawyer in

deciding to cancel the hearing, it is clearly erroneous. See Colin, 135 Nev.

at 330, 448 P.3d at 560 (noting that this court is not bound by findings of

fact that are clearly erroneous). The county manager—himself an attorney

and a former Nye County deputy district attorney—was copied on all

emails, including Arabia's. And the Nye County human resources director

testified that she consulted with the Nye County manager before canceling

the hearing. Also on September 25 at 11:15 a.m., almost 5 hours before the

human resources director canceled the hearing, Nye County's insurer

retained outside counsel, Rebecca Bruch, based on the litigation threat the

deputy's term i n ati on posed.

The record repels the majority's suggestion, ante at 17 n.8, that

the terminated deputy district attorney had a legal right to the informal

hearing. Citing authority, Arabia argued to the disciplinary panel orally

and in writing that the deputy was not eligible for this particular type of

code- and personnel-manual-based hearing—in other words, that the legal

opinion expressed in Arabia's email was correct. State Bar counsel did not

dispute this, instead maintaining that, for purposes of deciding attorney

discipline, "it did not matter whether Mr. Arabia's opinion was correct or

not." Taking the State Bar at its word, it is appropriate to assume that the

law did not entitle the deputy to have the county manager review his

termination. Cf. Einhorn u. BAC Home Loans Servicing, LP, 128 Nev, 689,

693 n.3, 290 P.3d 249, 252 n.3 (2012) (lad party may not raise new issues,

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factual and legal, [on appeal] that were not presented to the district court")

(internal quotation marks omitted).

11.

An attorney facing professional discipline has a right to

procedural due process, which includes fair notice of the charges against

him. In re Ruffalo, 390 U.S. 544, 550 (1968). The State Bar charged Arabia

with violating RPC 1.7 and RPC 8.4. To prevail, the State Bar had to prove

by clear and convincing evidence that Arabia committed the violations

charged. In re Discipline of Drakulich, 111 Nev. 1556, 1556, 908 P.2d 709,

715 (1995). Conduct extraneous to the violations charged cannot make up

for the State Bar's failure to prove their elements by clear and convincing

evidence.

A.

The State Bar principally charged Arabia with violating RPC

1.7. This Rule prohibits a lawyer from representing a client if the

representation involves a concurrent conflict of interest:

[A] lawyer shall not represent a client if the

representation involves a concurrent conflict of

interest. A concurrent conflict of interest exists if:

(1) The representation of one client will be

directly adverse to another client; or

(2) There is a significant risk that the

representation of one or more clients will be

materially limited by the lawyer's responsibilities

to another client, a former client or a third person

or by a personal interest of the lawyer.

RPC 1.7(a) (emphases added). This matter does not involve a direct conflict

of interest arising from a lawyer's representation of multiple clients. RPC

1.7(a)(1). Instead, it involves a single client—Nye County—and an

allegation that the lawyer, Arabia, had a "personal interese that posed a

4

"significant risk" of "materially limit[ind" his representation of that client.

RPC 1.7(a)(2).

RPC 1.7(a) distinguishes direct multiple-representation

conflicts from those involving self-interest. The reasons for the distinction

are clear. "When multiple representation exists, the source and

consequences of the ethical problem are straightforward: 'counsel

represents two clients with competing interests and is torn between two

duties. . . . He must fail one or do nothing and fail both.'" Beets v. Scott, 65

F.3d 1258, 1270 (5th Cir. 1995) (quoting Beets u. Collins, 986 F.2d 1478,

1492 (5th Cir. 1993) (Higginbotham, J., concurring), on rehk en banc, 65

F.3d 1258 (1995)). "Conflicts between a lawyer's self-interest and his duty

of loyalty to the client," by contrast, "fall along a wide spectrum of ethical

sensitivity from merely potential danger to outright criminal misdeeds." Id.

A "personal interest" potentially creating conflict between the

lawyer and his or her client might arise from any number of sources, not all

of them consequential. A lawyer's emotive state or subjective "feelings"

normally fall outside RPC 1.7(a)(2). See Sands v. Menard, Inc., 787 N.W.2d

384, 405 (Wis. 2010) (Abrahamson, J., dissenting) (4-3) (noting "that the

phrase 'personal interest'" in Wisconsin's analogous rule governing

professional conduct, SCR 20:1.7(a)(2), "refers not to [the lawyer's] own

emotive state or stake, but rather to substantive, material conflicts of

interest"). A "serious question" concerning "the probity of a lawyer's own

conduct," by contrast, or "discussions concerning possible employment with

an opponent of the lawyer's client," "business transactions with clients," or

the instances referenced in RPC 1.8 can create a concurrent conflict of

interest under RPC 1.7(a), depending on circumstances. See Model Rules,

r. 1.7 cmt. 10, discussed in Sands, 787 N.W.2d at 405. "[T]he virtually

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limitless cases in which a 'conflict may theoretically arise" out of a lawyer's

personal interest pose "a very real danger of analyzing these issues not on

fact but on speculation and conjecture." Essex Cty. Jail Annex Inmates v.

Treffinger, 18 F. Supp. 2d 418, 432 (D.N.J. 1998). To guard against this

danger, "when a conflict of interest issue arises based on a lawyer's self-

interest, a sturdier factual predicate must be evident than when a case

concerns multiple representation" of clients whose interests directly

conflict. Id.

The disciplinary panel concluded, on a split vote, that Arabia

violated RPC 1.7 "when he opined to the Nye County Human Resources

Director that the requested appeal hearing was improper and demanded

that the hearing be vacated within 48 hours of his demand, without

recognizing the substantial risk that his personal interest in defending

against the appeal could materially limit his ability to fulfill his

responsibilities to his client, Nye County." The majority opinion adds that

Arabia had a personal interest in having the hearing vacated quickly

because the county would soon hire outside counsel and "Arabia did not

want to be forced to rehire the deputy. Maj. op., ante at 14. It also suggests

that Arabia wanted to cancel the hearing to protect his professional

reputation, since a hearing would reveal that Arabia had fired the deputy

for attempting to unionize the Nye County district attorney's office.

These reasons have too much of speculation and conjecture in

them to establish the "sturd[y] factual predicate needed to find a disabling

conflict of interest. Treffinger, 18 F. Supp. 2d at 432. Canceling the

informal hearing would not make the deputy and his wrongful termination

claims go away—and nothing in the record suggests that Arabia irrationally

thought it would. By the time Arabia sent his email, the deputy had hired

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a lawyer. Arabia knew this because the deputy referenced his lawyer in his

response to the human resources director's email setting the hearing date,

on which he copied Arabia. Nye County's retention of insurance defense

counsel followed as a matter of course, before the human resources director

emailed to cancel the hearing. And, as Arabia knew, the deputy had options

besides the review by the county manager, including a "245" hearing

(apparently referring to NRS 245.065) and filing a lawsuit in court. Unlike

the review process, which is informal, both are forms of public hearing. As

such, they carried a greater risk to Arabia of public criticism than the

canceled review hearing did. The court cites Arabia's reference to "tak [ing]

the hit," Maj. op., ante at 14, for the termination decision as evidence of his

disabling personal interest, but that statement did not refer to the informal

review hearing. It came in the context of Arabia's testimony about the 245

hearing the deputy separately sought—a hearing Arabia supported but that

the deputy later decided not to pursue. Arabia's support of the 245 hearing,

his brassy statement that he welcomed a 245 hearing because it would let

him publicly explain his reasons for the termination, and his willingness to

"take the hit" if the 245 hearing panel disagreed with him do not square

with the fear of public criticism on which the court grounds its conflict

analysis. And the possibility the informal review would require Arabia to

reinstate the deputy seems remote, especially if it was not something the

deputy had a legal right to pursue in the first place.

A lawyer's personal interest does not create a disabling conflict

of interest requiring client disclosure and consent or withdrawal unless it

carries a significant risk of materially and adversely affecting the client.

See Model Rules, r. 1.7 cmt. 10 (noting that under Rule 1.7(a)(2), "Mlle

lawyer's own interests should not be permitted to have an adverse effect on

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representation of a cliene); Restatement (Third) of the Law Governing

Lawyers § 121 (Am. Law Inst. 2000) (providing that for a prohibited conflict

of interest to arise, there must be "a substantial risk that the lawyer's

representation of the client would be materially and adversely affected by

the lawyer's own interests"). "Unless there is risk that the lawyer's

representation would be affected 'adversely,'" in other words, "there is no

conflict of interest." Restatement (Third) of the Law Governing Lawyers

121 cmt. c(i). Here, the State Bar does not explain how canceling the

informal hearing materially and adversely affected Nye County (or carried

a "significant risk" of doing so). In fact, the opposite appears true.

Proceeding with the informal hearing would have buttressed the deputy's

position that he could not be terminated except for good cause; this would

hurt the county's probable litigation position that his employment was at

will. The State Bar's effective concession that review by the county

manager was not something the deputy was entitled to as a right further

confirms that Arabia's email demanding that the human resources director

cancel the hearing did not cause the county legal harm.

Arabia had both executive and legal responsibilities to Nye

County. Although he testified that he believed he was acting in his

executive and not his legal capacity in sending the email, the disciplinary

panel and the majority disagree. But see Model Rules of Profl Conduct,

Scope, ¶ 18 (noting that "LuInder various legal provisions, including

constitutional, statutory and common law, the responsibilities of

government lawyers may include authority concerning legal matters that

ordinarily reposes in the client in private client-lawyer relationships" and

providing that "Mese Mules do not abrogate any such authority"); id. at

1.13 cmt. 9 (addressing the difficulties inherent in a lawyer representing a

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governmental entity and noting that "rdiefining precisely the identity of the

client and prescribing the resulting obligations of such lawyers may be more

difficult in the government context and is a matter beyond the scope of these

Rules"). Ideally, the matter of who had authority over the termination

would not have arisen on such short notice, allowing for clarification

without confrontation. See id. at 1.7 cmt. 35 (discussing the challenges and

need for occasional clarification when a lawyer serves an entity as both a

business and a legal adviSer). But with the hearing requested one day and

set the next, to occur just two weeks out, time did not permit a measured

dis!,!ussion, making reasonable Arabia's decision •to consult with two

experienced deputies and insist on the hearing's cancellation as legally

unfounded. See id. at 1.10(a)(1) (providing- that a concurrent. conflict of

interest that is' based on a lawyer's personal interest under Model Rule

.7(a)(2) is not imputed to other laWyers wha practice with. that lawyer

unless their representation, too, presents "a significant risk of materially

limiting the representation of the client by the remaining laWyers - in the

firm").

Our review of the disciplinary panel's findings of fact iS

deferential, "so long as they are not clearly .erroneous and are supported by

substantial evidence." Colin, 1.35 Nev. at 330, 44-8 P.3d at 560. And "we

determine de novo whether the factual findings establish an RPC violation."

id. Here, the panel's findings of a disabling Personal interest causing harm

to -Arabia's representation of Nye County are clearly erroneous and do not

support holding that Arabia's email violated RPC 1.7(a)(2).

-•B

The State. Bar -also charged Arabia with violating RPC 8.4(d)

based on the same September 24 email. RPC 8.4(d) provides that "filt is

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prejudicial to the administration of justice." "For purposes of this [Mule

WAWA , 'prejudice requires 'either repeated conduct causing some harm to

the administration of justice or a single act causing substantial harm to the

administration of justice."' Colin, 135 Nev. at 332, 448 P.3d at 562 (quoting

In re Discipline of Stuhff, 108 Nev. 629, 634, 837 P.2d 853, 855 (1992)). The

facts in this case do not rise to the level required to establish "prejudice"

under Colin. It proceeds from a "single act"—Arabia sending the

September 24 email to Nye County's human resources director without

copying the deputy—and that act did not cause "substantial harm to the

administration of justice." Id. The deputy promptly learned of Arabia's

communication, and the hearing was properly canceled for the reasons

already discussed. Accordingly, the RPC 8.4(d) charge is a legal nonstarter

and should be dismissed.

C.

Arabia has had no prior attorney discipline, and the panel found

that his conduct in sending the email was negligent, not intentional.

Furthermore, the hearing's cancellation caused Nye County little or no

actual or potential harm. Under these circumstances, even accepting for

purposes of argument that Arabia's email violated RPC 1.7(02), the

sanction of a formal public reprimand is unwarranted. At most, the email

warranted an admonition. See Compendium of Professional Responsibility

Rules and Standards: Standards for Imposing Lawyer Sanctions, Standard

4.34 (Am. Bar Ass'n 2017) ("Admonition is generally appropriate when a

lawyer engages in an isolated instance of negligence in determining

whether the representation of a client may be materially affected by the

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lawyer's own interests . . . and causes little or no actual or potential injury

to a client.").

While I join the parts of the opinion rejecting qualified

immunity and the claim of exclusive jurisdiction of the Nevada Commission

on Ethics, I otherwise respectfully dissent.

J.

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