Appendix — Pipkins v. Nevada State Bar

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IN THE SUPREME.COURT OF THE STATE OF NEVADA

RICHARD L. PIPKINS,

Attorney at Law,

Appellant

.

vs.

THE STATE BAR OF NEVADA,

Respondent.

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AND MODIFYING DISCIPLINE

On May 28, 1993, this court suspended attorney Richard L.

Pipkins from the practice of law in this state for a period of not

On June 23, 1994, Pipkins filed in this court a petition for

reconsideration of our order of May 28, 1993. Although Pipkins’

petition for reconsideration is untimely, see NRAP 40 (a), and

dilatory, we have elected to consider it. Pipkins contends that

the discipline imposed by this court was too harsh.1 Having

review the record and the pleadings, we conclude that the

discipline previously imposed by this court should be modified.

Motte aaa paaeanes i ee

Pipkins shall be suspended from the practice of in this state for

@ period of not less than three years from the date of our

previous order of suspension, May 28, 1993. Prior to seeking

reinstatement pursuant to SCR 116, Pipkins will still be required

to pass the Nevada State Bar Examination and the Multistate

Professional R ibility Examinati

It is so ordered 2

, C.J.

Steffen

__/s/ Young J

Young

_/s/ Springer _ J

Springer

_/s/ Rose _ J

Rose

2 We deny appellant’s motion for oral argument.

The Honorable Miriam Shearing, Justice, did not participate

in the decision of this appeal.

AFFIDAVIT OF JUDGE JOSEPH PAVLIKOWSKI

STATE OF NEVADA )

) ss:

COUNTY OF CLARK )

Joseph Pavlikowski, being first duly sworn, deposes and

says as follows:

L That your Affiant is a duly elected District Court

Judge in Clark County, Nevada, is over the age of eighteen (18),

is competent to testify to the matters stated therein, and herein

testifies based upon personal knowledge.

2. That on August 15, 1988, "Plaintiff’s Motion For

Release of Funds" in the case of Mariam Litowsky, et. al., vs.

Julius Mandler, et.al., case number A267011, came before the

Affiant for consideration.

8. That present in the court file at that time was

plaintiff’s complaint and plaintiff's motion, but no answer to

plaintiff’s complaint and no opposition to plaintiff’s motion, as

well as no evidence of the service of either the complaint or the

motion upon the defendants.

4. That prior the start of that morning’s motion

calendar at 9:00 A.M., Attorney Richard L. Pipkins indicated to

erate inary, SAR RRANT TE ROR NCR RRE DOOR ORE RATS Mis eos DME ES

the Affiant’s staff that he would be delayed in another depart-

ment, and that Attorney Pipkins made no appearance in open

court that morning prior to the completion of the court’s

calendar.

5. That what with no attorney appearing for either the

plaintiff nor the defendant, and there being no evidence of service

of process upon the defendant of either the complaint or the

motion, the Affiant in open court ordered this matter taken off

calendar.

6. That following completion of the court’s morning

motion calendar Attorney Pipkins arrived at the court and was

brought to the chambers of the Affiant whereupon Attorney

Pipkins was advised in chambers of the fact that the Affiant had

taken the matter off calendar. Nothing said in chambers by

Attorney Pipkins had any effect on the court’s prior ruling that

the matter should be taken off calendar.

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8. That attached hereto is a copy of the Court’s

minutes relative to this matter.

Further Affiant sayeth not.

—/s/ Joseph Paviikowski

JOSEPH PAVLIKOWSKI

On this A0th day of June 1994, before me, the under-

signed, a Notary Public in and for the County of Clark, State of

Nevada, duly commissioned and sworn, Personally appeared

JOSEPH PAVLIKOWSKI, known to be the person whose name

is subscribed to the above instrument, and who acknowledged to

me that he executed the same freely and voluntarily and for the

uses and purposes therein mentioned.

NOTARY PUBLIC

NOTARY SEAL

LEE << i EPR TN LITO, LI BIE EL LTO TERS RI A NOSE IY RONEN I BANE NE APM YE M8 a paged i Ay in

AFFIDAVIT OF KENNETH PHILLIPS

STATE OF NEVADA )

) ss:

COUNTY OF CLARK )

Kenneth Phillips, being first duly sworn, deposes and

says as follows:

1. That your Affiant is over the age of eighteen (18),

is competent to testify as to these matters, and herein testifies

based upon personal knowledge;

2. That on July 29, 1988, Affiant was retained by the

law office of attorney Richard L. Pipkins for the specific purpose

of affecting service of process of a summons and civil complaint

» case number A267011,

upon Defendants Julius Mandler and Carmella Mandler,

8. That on July 29, 1988, attorney Pipkins provided

Affiant with an original summons together with a copy thereof

and a copy of the complaint in this matter, and that during the

period between July 29, 1988, and August 11, 1988, Affiant made

numerous efforts to locate and serve Defendants Julius Mandler

and Carmella Mandler, all of which proved unsuccessful;

4. That on August 11, 1988, attorney Pipkins provided

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“Geom PTI LE NYT Rs i

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Affiant with two copies of "Plaintiff’s Motion For Release of

Funds” and that during the period August 11, 1988, up to and

including August 14, 1988, Affiant made numerous efforts to

locate and serve Defendants Julius Mandler and Carmella

Mandler with the aforementioned Complaint and 'Plaintiff’s

Motion For Release of Funds’, all of which also proved

unsuccessful;

5. That on August 15, 1988, attorney Pipkins provided

Affiant with an additional original summons and one copy thereof,

the first summons having been lost by Affiant during previous

attempts at service, and that on August 16, 1988, Affiant was

able to affect service of process upon Julius Mandler and Carmel-

la Mandler of the aforementioned Complaint and "Plaintiff’s

Motion For Release of Funds’, and on August 17, 1988, signed the

attached “Affidavit of Service” for filing with the Eighth Judicial

6. That at the time the Affiant served the Defendants,

Julius Mandler stated to Affiant that Julius Mandler and

Carmella Mandler had just returned the previous day from an

extended vacation out of the country lasting several weeks and

thus it would have been nearly impossible to have affected service

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of process upon them any earlier than was done;

7. That the Affiant has never previous to this date

been interviewed by attorney Pipkins’ counsel: |

Further Affiant sayeth not.

“KENNETH PHILLDS—

On this 24th day of May 1994, before me, the undersigned,

a Notary Public in and for the County of Clark, State of Nevada,

duly commissioned and sworn, personally appeared KENNETH

PHILLIPS, known to be the person whose name is subscribed to

the above instrument, and who acknowledged to me that he

executed the same freely and voluntarily and for the uses and

purposes therein mentioned.

—/s/Yvonne M. Guthrie

NOTARY PUBLIC

PREG Se THAN oe 5

1G Qa yaa SIAR Per HY ow NPC PME BR EEL RANT

August 24, 1988

Dear Julius:

Contrary to my advice, you have expressed a desire to litigate to

the end with Mr. and Mrs. Litowsky. You apparently chose to do

this as a matter of principle.

You desire for this office to represent you, however, you are in

_effect asking us to extend credit to you for the purpose of

vindicating your principles. I am sorry to advise you that we are

not in a position to do that. I simply do not feel as strongly about

this matter as you do and I don’t have any principles involved.

We have ongoing expenses in this office and we simply cannot

finance your litigation and allow you to pay us over a period of

time.

Accordingly this office will not be able to represent you. We

on you.

Yours very truly,

JOHN P. WANDERER

700 South 4th Street

Las Vegas, Nevada 89101

(702) 386-6004

August 19, 1988

HAND DELIVERED

Mr. Harry E. "Chip" Hinderliter

Vice President & General Counsel

First Interstate Bank of Nevada

3800 Howard Hughes Plaza

Las Vegas, Nevada 89101

Re: Funds held by FIB on behalf of "La Cornucopia"

Pending litigation: Litowsky vs. Mandler

Case Number: A 267011

Dear Chip:

I have a matter that I would like to present to you for your

consideration and review. The specific facts are set forth in the

attached materials, but suffice to say that my clients, Richard and

Miriam Litowsky were once in a partnership with the Defendants,

Julius and Carmella Mandler when, about two years ago, the

Mandlers took off with all of the proceeds of the business and

have, my clients have alleged, converted the proceeds to personal

use. The one asset that they missed was approximately $4,000.00

sitting in a business checking account at FIB, Main and Oakey.

I am informed that this account was once a one signature

account with either my clients or the Mandlers being authorized

signers, but that due to the split between the Litowskys and the

Mandlers, the account was “flagged” and now requires both the

signature of Mrs. Litowsky and Mr. Mandler. The current

problem is that Mr. Litowsky is very ill, needs ongoing medical

treatment that he presently does not the ability to pay for, and

therefore my clients would again like one signature access to the

account. Absent this being possible, I would suggest that the

funds be placed with Loretta Bowman’s office so the appropriate

court, in either this action or in a separate Interpleader action,

can adjudicate who the proper owner of this money is.

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I much appreciate your attention to this matter. Since I am

sure you are much more experienced than I am in matters such

Mr. Harry E. "Chip" Hinderliter

August 19, 1988

Page two of two

as these I would much appreciate any input you might have in

respect to this problem. However, in light of the severity of Mr.

Litowsky’s illness, I would request that we reach some sort of

solution to this problem in as timely a manner as possible.

Thank you very much for your attention to this matter.

Very Truly Yours,

RICHARD L. PIPKINS, CHTD.

: /s/ Richard L. Pipki

RICHARD L. PIPKINS, ESQ.

Attorney & Counselor At Law

enclosure: 1) Summons & Complaint

2) Motion For Release of Funds

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INDEMNITY AGREEMENT

WHEREAS there currently exists a commercial checking

account at First Interstate Bank of Nevada (hereinafter "FIB")

under account number 0880030734, as maintained at First

Interstate Bank, Main and Oakey Office, Las Vegas, Clark

County, Nevada and the owner of that account being listed as "La

Cornucopia"; and

WHEREAS “La Cornucopia” was originally established as a

partnership in April of 1986 as by and between MARIAM

LITOWSRY (hereinafter "LITOWSKY’) and JULIUS MANDLER

(hereinafter "MANDLER’) for the purpose of operating a retail

furniture business; and

WHEREAS the establishment known as "La Cornucopia"

ceased to exist on or about August 1, 1988, when MANDLER, it

is being alleged by LITOWSKY, [Emphasis added.] took all of the

proceeds of "La Cornucopia” without the permission of LITOW-

SKY, and thereafter disappeared; and

WHEREAS the time period of two (2) years has since passed

since there has been any significant activity in respect to FIB

account number 0880030734, and since there still remains some

four thousand nine hundred and seventy-one dollars and sixty-

three cents ($4,971.63) remaining in said account; and

WHEREAS LITOWSKRY is desirous of withdrawing all of the

remaining amounts in this account, and FIB’s only principal

concern with this request being that of any legal duty as owed to

MANDLER by FIB and LITOWSKY im respect to these funds;

and

IT IS HEREBY AGREED BY AND BETWEEN FIB AND

LITOWSKEY that said funds, that being some four thousand nine

hundred and seventy-one dollars and sixty-three cents ($4,971.63)

remaining in said account number 0880030734 as maintained at

First Interstate Bank, Main and Oakey Office, Las Vegas, Clark

County, Nevada may be withdrawn by LITOWSKY on the

condition, as herein agreed, that LITOWSKY indemnify FTB fully

in respect and in direct portion to the amount being withdrawn

FIB from any action by MANDLER in respect to these funds as

against FTB.

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LITOWSKY hereby agrees that in the event that any action

is instituted by MANDLER as against FIB in respect to these

funds that LITOWSKY will stand in the place of FIB, will

si ML _/s/ SBB Page one of two

ML SBB

such

action on behalf of FIB, and will

FIB in respect to both the amount of the funds

held by FIB and im respect to any litigation costs

THIS AGREEMENT entered into this nineteenth day of

August 1988 at Clark County, Nevada.

On behalf of MARIAM LITOWSKY On behalf of FIB

MARIAM LITOWSKY SARA BETH BROWN

NOTARIZATION AS TO MARIAM LITOWSKY

subscribed to the above instrument, and who acknowledged to me

that she executed the same freely and voluntarily and for the

uses and purposes therein mentioned.

(Notary Seal]

NOTARY PUBLIC

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IN THE SUPREME COURT OF THE STATE OF NEVADA

RICHARD L. PIPKINS, Attorney at

Law,

Appellant

No. 19449

vs.

THE STATE BAR OF NEVADA,

Respondent.

RICHARD L. PIPKINS, Attorney at

Law,

Appellant

No. 20280

FILED May 28, 1993

vs.

THE STATE BAR OF NEVADA,

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Respondent. )

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ORDER OF SUSPENSION

This is an automatic, consolidated appeal from the findings

and recommendations of separate hearing panels of the Southern

Nevada Disciplinary Board. See SCR 105(3)(b). On June 27,

1990, following oral argument of these matters, this court

remanded the proceedings in Docket No. 20280 for a full ad-

versarial rehearing before a new hearing panel of the Southern

Nevada Disciplinary Board. We deferred any final decision in

docket No. 19449 pending our receipt and consideration of the

panel’s findings and recommendations on rehearing.

The board has now filed the record of the proceedings on

rehearing with the clerk of this court, and the matter has been

fully briefed by the parties.1 In both pending matters the

disciplinary panels have recommended, in part, that attorney

Richard L. Pipkins be suspended from the practice of law in this

state for a period of not less than five years.

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Docket No. 20280.

Pipkins first contends that no evidence supports the panel’s

findings of misconduct. Our independent review of the record,

however reveals that the panel’s findings are supported by

substantial clear and convincing evidence. Specifically, we note

that Pipkins’ testimony regarding the events in question was

directly contradicted by the testimony of the other witnesses, and

we concur with the panel’s findings that Pipkins we ss than

truthful under oath.

next contends that the panel selection procedures set

forth in the Supreme Court Rules create a constitutionally

unacceptable potential for biased decision-making. See SCR

103(8); SCR 105(2)(a); In re Ross, 99 Nev. 1, 656 P.2d 832

(1983). We disagree. The flexible demands of due process of law

do not require a trial by randomly selected jury in attorney

discipline proceedings. See In re Rhodes, 370 F.2d 411 (8th Cir.)

(court rejected claim that denial of a trial by jury in federal

disbarment proceedings was a violation of due process of law).

cert. denied, 386 U.S. 999 (1967).

Moreover, the rules governing discipline proceedings allow an

accused attorney and bar counsel two peremptory challenges

each. The rules also contemplate additional challenges for cause.

See SCR 105(2)(a) (‘[t]he chairman may make ad hoc appoint-

ments to replace either the layman or attorneys . . . in the event

challenges or disqualification reduce the number to less than the

five required for a hearing panel"). See also SCR 103(8) (panel

members shall not participate in any matter where a judge

similarly situated would be required to abstain). Our review of

the record reveals that these provisions provided Pipkins a full

and fair opportunity to challenge in a timely manner the partici-

pation in the proceedings of the Chairman of the Southern

Nevada Disciplinary Board and all individuals selected by the

Chairman to sit on the disciplinary panel.

We further conclude that Pipkins had more than adequate

notice of the proceeding and a full and fair opportunity to present

his defense. Contrary to his contentions, the record reveals that

Pipkins was not denied the right to meaningful discovery; nor did

any evidentiary rulings of the panel chairman deprive Pipkins of

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an opportunity to present a meaningful defense. Due process of

law does not require more. See Selling v. Radford, 243 U.S. 46

(1916). See also Burleigh v. State Bar of Nevada, 98 Nev. 140,

643 P.2d 1201 (1982) (proceedings before disciplinary panel not

charged with executive responsibilities relating to state bar’s

budget held not to offend due process).

Pipkins further failed to demonstrate affirmatively on appeal

any actual bias on the part of the former Chairman of the

Southern Nevada Disciplinary Board or on the part of any

particular panel member assigned to hear the case on rehearing.

See In re Miller, 87 Nev. 65, 482 P.2d 326 (1971) (on appeal, an

attorney must affirmatively reveal where the board’s findings and

recommendations are erroneous or unlawful). Nor has Pipkins

demonstrated on appeal that the Board Chairman erred in either

refusing to disqualify himself, or in denying Pipkins’ belated

motion, filed on the day of the scheduled hearing, to disqualify an

ad hoc replacement to the panel See Ainsworth v. Combined

Ins. Co., 105 Nev. 237, 774 P.2d 1003, cert. denied, 493 U.S. 958

(1989); In re Petition to Recall Dunleavy, 104 Nev. 784, 769 P.2d

1271 (1988); Goldman v. Bryan, 104 Nev. 644, 764 P.2d 1296

(1988). We also reject as wholly unsubstantiated Pipkins’

allegations that he has been the victim of a dishonest or corrupt

prosecution at the hands of former bar counsel or the special

prosecutor.

Accordingly, we adopt and approve the findings and recom-

mendations of the panel. Richard L. Pipkins is hereby suspended

frum the practice of law in this state for a period of not less than

five years. Prior to seeking reinstatement pursuant to SCR 116,

Pipkins shall be required to pass the Nevada State Bar Examina-

tion and the Multistate Professional Responsibility Examination.

Pipkins’ reinstatement may be conditioned upon his reimburse-

ment of any losses incurred by the parties as a result of the

actions that are the subject of this proceeding. The costs of the

disciplinary proceedings are assessed against Pipkins, and the

parties shall comply with the notice provisions of SCR 115.

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We conclude that the discipline imposed in Docket No. 20280

adequately serves the paramount objectives of bar disciplinary

proceedings to protect the public against attorneys unfit to serve

as officers of the court. See State Bar of Nevada v. Claiborne,

104 Nev. 115, 756 P.2d 464 (1988). Accordingly, we decline to

impose the additional discipline recommended in this proceeding.

It is so ORDERED.2

1

On June 29, 1992, we ordered the appeal submitted for

decision on the opening and answering briefs without further

argument. On April 8, 1993, Pipkins moved this court to file and

consider a long overdue reply brief. Cause appearing, we grant

the motion. We have considered Pipkins’ reply brief in resolving

the appeal, and we direct the clerk of this court to file the reply

brief provisionally submitted on April 8, 1992.

2

The Honorable Miriam Shearing, Justice, did not participate

in the decision of these matters.

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