IN THE MATTER OF THE
REINSTATEMENT OF JEAN T. PAVAGEAU.
No. 35986
SUPREME COURT OF NEVADA
2000 Nev. LEXIS 155
October 23, 2000, Decided
DISPOSITION:
[*1]
Petition denied without prejudice.
JUDGES: ROSE, C.J., YOUNG, J., MAUPIN, J., SHEARING, J., AGOSTI, J., LEAVITT, J.,
BECKER, J.
OPINION:
ORDER DENYING PETITION FOR
REINSTATEMENT
This is a petition for
reinstatement of Jean Pavageau to the
practice of law. A
hearing panel of the Southern Nevada Disciplinary Board
recommended that the petition be denied, as petitioner had not demonstrated by
clear and convincing evidence that she should be
reinstated. The petition was very brief, and Pavageau attached no documentation in support
of her petition. Pavageau was the only witness to testify at the hearing.
We conclude that the
hearing panel correctly found that Pavageau did not meet her burden to demonstrate by
clear and convincing evidence that she had the
qualifications to be
reinstated. We therefore deny Pavageau's petition without prejudice.
Facts
Pavageau graduated from the University of San Diego College of Law in 1979. She
was admitted to practice in Nevada in 1982. From
[*2] 1982 through 1984, she operated the Nevada office of a California-based firm,
Goethals
& Swanson. In 1984, she opened her own practice in
Las Vegas, in which she worked until 1989.
In June 1989, Pavageau was seriously injured in a car accident. She underwent
over a year of therapy, and was prescribed strong painkillers and
muscle
relaxers. She testified that the
muscle
relaxers had a strong adverse effect on her, and prevented her from functioning
effectively or paying attention to detail. At the time, however, she did not
realize their effect. n1 In the months following the accident, her practice
dwindled. Her house went into foreclosure.
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n1 At the
reinstatement hearing, Pavageau testified that she became aware of her reaction to the
medication in 1996. She was injured in another accident, and was again prescribed
muscle
relaxers. However, whereas in 1989 she had lived alone, in 1996 she was living with her
brother. He noticed the effect the
medication had on her, and she stopped taking it. She testified that she now takes
nothing more than aspirin for a headache.
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[*3]
On November 2,
1989, this court
suspended Pavageau from the
practice of law for eighteen months. The
suspension was based upon her
misconduct with respect to two clients. In the first case, Pavageau failed to file a
complaint on behalf of the client before the expiration of the statute of
limitations. In the second case, she was retained to seal the client's criminal
record, and failed to perform any work on the client's behalf.
At about the time of her accident, Pavageau was retained to represent the
executor of an estate worth approximately $ 60,000. These funds were in
Pavageau's trust account, awaiting distribution to the
heirs. Pavageau distributed approximately $ 30,000 to some of the
heirs, but took the rest of the money and used it to save her house from foreclosure.
She stated that she intended to repay the funds with a
settlement from the car accident. However, due to the
medication, her mental state was such that she did not pursue litigation, and no
settlement was obtained. Pavageau failed to repay the amount to the trust account.
Sometime
later, the
heirs discovered what had happened, and initiated criminal proceedings. As part of a
plea agreement in the criminal matter,
[*4] Pavageau agreed to resign from the
practice of law and surrender her license for a period of no less than seven years. She signed
an
"affidavit of
resignation" to this effect. It appears that bar counsel learned of the affidavit and
forwarded it to this court in 1994. Later, this court entered, an order
approving the
resignation. The order provided that Pavageau could not petition for
reinstatement earlier than seven years from the date of the affidavit, which was executed in
April 1992. No other conditions for
reinstatement were specified in the order. n2
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n2 We note that this procedure was highly unusual. Generally, a
suspension is imposed by this court based upon a recommendation from a disciplinary
hearing panel after a formal disciplinary proceeding. In such a case,
conditions for
reinstatement are frequently set forth in this court's order. Here, no disciplinary
proceeding took place; rather, Pavageall's
resignation was part of her criminal sentence.
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The rest of Pavageau's sentence included a
suspended
[*5] thirty-day jail sentence, and three years of probation, with several
conditions. Pavageau was to be subject to search for contraband at any time;
she was, to see a
counselor, and if the
counselor
recommended, was to obtain mental health counseling; and she was to pay $ 15,000 in
restitution to the
heirs. Pavageau successfully completed all terms of her probation, and was honorably
discharged in May 1995.
At the
reinstatement hearing, Pavageau testified that she was subject to search on several
occasions, but that no irregularities occurred. She further stated that she had
met with a
counselor in compliance with the terms of probation, and that the
counselor had determined that she did not require further counseling. In addition,
Pavageau had paid the
restitution.
The remaining $
15,000 that Pavageau had taken was paid to the
heirs from the state bar's Client Security Fund. Pavageau agreed to reimburse the
Fund, and at the time of the
reinstatement hearing, she had paid approximately 10,700 to the Fund. Pavageau testified at
that time that she was prepared to pay $ 1,000 immediately, and intended to
repay the remainder as soon as possible.
With respect to the
misconduct underlying
[*6] her November 1989
suspension, Pavageau testified that the client for whom she had failed to file a complaint
made a claim on her malpractice insurance, and the claim was paid. With respect
to the other client, Pavageau testified that she returned the retainer funds
she had been paid by the client.
After Pavageau's
suspension in 1989, she sold real estate for about two years. After that, she was
employed for approximately four years as a
paralegal for a sole practitioner. Following that employment, she worked for about a
year for the State Industrial insurance
System ("SIIS"), also as a
paralegal. Her position was terminated when SIIS was reorganized in about 1996. After
being unemployed for about a year, Pavageau worked as a
paralegal for a hospital corporation. This position was terminated after a hostile
takeover.
Since that time, Pavageau has not found permanent employment. She worked for a
few months for a company that lends money to personal injury claimants, secured
by a lien on any
settlement received. She testified that she quit that position because she felt this
practice was not ethical. She also testified that she was concerned that the
transactions might violate regulations
[*7] of the Securities Exchange Commission, and that she did not want to work for
such a company. After some period of unemployment, Pavageau then went to work
for a legal forms company as a
paralegal. She quit after two weeks when she was asked to meet with and give
legal advice to clients, because she did not want to engage in the
unauthorized practice of law.
At the time of the
reinstatement hearing, Pavageau had not yet found new employment. She was living with her
family to save money, and was living with their assistance and what was left of
a severance payment she received when she was laid off from the hospital
corporation after the takeover.
Pavageau testified that she had not taken any continuing legal education
courses during the period of her
resignation. She indicated that she would comply with whatever requirements were imposed
upon her as a condition of
reinstatement, including taking the
bar examination. She further testified that she would not repeat the actions that led to her
discipline troubles, as she now understands how valuable the right to practice
is, and she would not jeopardize it.
The
hearing panel concluded that Pavageau had not demonstrated by
clear and
[*8] convincing evidence that she should be
reinstated. We note that the panel's written decision does not state the reasons for its
conclusion.
Factors to Be Considered in
Reinstatement
Proceedings
SCR 116(3) provides, in pertinent part:
Petitions for
reinstatement by a
disbarred or
suspended attorney shall be filed with the disciplinary board governing the county in
which the attorney resides; a copy of the petition shall be served on bar
counsel. The board shall promptly refer the petition to a
hearing panel, which shall, within 60 days after referral, schedule a hearing at which the
petitioner has the burden of demonstrating by
clear and convincing evidence that the attorney has the moral
qualifications, competency, and
learning in law required for admission to practice law in this state, and that the
attorney's resumption of the
practice of law will not be
detrimental to the integrity and standing of the bar, to the administration of justice, or
to the
public interest.
This rule sets forth four areas of inquiry for
reinstatement petitions: First, the petitioner must demonstrate that her moral
qualifications satisfy the
requirements for admission to practice law
[*9] in this state. Second, the petitioner must demonstrate that she is competent
to be admitted to the
practice of law. Third, the petitioner must demonstrate that she has the
learning in law required for admission to this state. Finally, the petitioner must
demonstrate that her
reinstatement will not be
detrimental to the integrity of the bar, to the administration of justice, or to the
public interest.
The first area of inquiry, moral
qualifications, will necessarily require a petitioner to show rehabilitation from the conduct
leading to her
suspension, and that the
misconduct is not likely to recur.
See Model Rules of Lawyer Disciplinary Enforcement [hereinafter
"Model Rules"], Rule 25(E)(4) (providing that
reinstatement may be appropriate where
"the lawyer recognizes the wrongfulness and seriousness of the
misconduct for which the lawyer was
suspended or
disbarred") and 25(E)(6) (providing that
reinstatement may be appropriate where,
"notwithstanding the conduct for which the lawyer was disciplined, the lawyer
has the requisite honesty and
integrity to practice law"). In this regard, letters or affidavits and testimony from witnesses who know
the petitioner well, particularly
[*10] employers and attorneys, are
beneficial. n3
See
In re Groshong, 83 Ill. 2d 27, 413 N.E.2d 1266, 1268, 46 Ill. Dec. 153 (Ill. 1980);
Matter of Barton, 291 Md. 61, 432 A.2d 1335, 1337 (Ct. App. Md. 1981);
Matter of Livesey, 94 Wn.2d 251, 615 P.2d 1294, 1296 (Wash. 1980). Also, evidence of public service or volunteer work may help a petitioner to
establish this requirement.
See
Barton, 432 A.2d at 1337.
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n3 We note that, pursuant to Canon 2B of the Nevada Code of Judicia Conduct, a
judge is prohibited from testifying voluntarily as a character witness.
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Full compliance with the terms and conditions of prior disciplinary orders,
including
restitution, may also be considered in evaluating this factor.
See Model Rule 25(E)(1) (providing that
reinstatement may be appropriate where
"the lawyer has fully: complied with the terms and conditions of all prior
disciplinary orders"). Other considerations pertinent to this factor are that the petitioner has
[*11] not engaged in any other
misconduct during the
period of suspension, including the
unauthorized practice of law.
See Model Rule 25(E)(2) (providing that
reinstatement may be appropriate where
"the lawyer has not engaged nor attempted to engage in the
unauthorized practice of law during the
period of suspension or
disbarment") and 25(E)(5) (providing that
reinstatement may be appropriate where
"the lawyer has not engaged in any other professional
misconduct since
suspension or
disbarment"). Finally, the petitioner must demonstrate that she is financially
responsible, in compliance with SCR 51(8).
The
second factor, competence, is most critical in cases where the petitioner's
previous
misconduct was affected by alcohol or drug abuse, other addictions such as gambling, or
mental
disabilities.
See Model Rule 25(E)(3) (providing that
reinstatement may be appropriate where,
"if the lawyer was suffering under a physical or mental
disability or infirmity at the time of
suspension or
disbarment, including alcohol or other drug abuse, the
disability or infirmity has been removed"). In such cases, the petitioner must demonstrate that such addictions or
disabilities have been addressed
[*12] and will not lead to further
misconduct upon
reinstatement.
See
Livesey, 615 P.2d at 1296.
The third factor,
learning in law, could be demonstrated by proof that the petitioner has taken
continuing legal education courses during the
period of suspension so as to maintain her legal knowledge.
See Model Rule 25(E)(7) (providing that
reinstatement may be appropriate where
"the
lawyer has kept informed about recent developments in the law and is competent
to practice"). Where so ordered by this court, it could also include passing certain tests
such as the Multi-State Professional Responsibility Examination or the
bar examination. In some cases, a petitioner who has engaged in law-related employment during
the
suspension could be found to satisfy this requirement.
See
Barton, 432 A.2d at 1337-38. In other situations,
reinstatement could be conditioned upon the petitioner's completion of a certain number of
continuing legal education credits.
See
Livesey, 615 P.2d at 1296 (conditioning
reinstatement upon completion of forty-five hours of continuing legal education in each of
two years following
reinstatement).
The final consideration
[*13] is that the petitioner must demonstrate that her
reinstatement will not be
detrimental to the integrity of the bar, to the administration of justice, or to the
public interest. As stated by the Supreme
Court of California,
"the sole object of the court, upon an application by an attorney previously
disbarred for
reinstatement to practice, is to determine whether or not the character of the applicant is
such that he should be admitted to an office of trust, and
recommended to the public as a trustworthy person, fit to be consulted by others in
matters of confidence."
Feinstein v. State Bar of California, 39 Cal. 2d 541, 248 P.2d 3, 6 (Cal. 1952) (citations omitted). This factor is thus related to the other factors,
particularly the first, the petitioner's moral
qualifications. However, the focus is shifted from the petitioner's personal interest to the
public's interest in an ethical, competent bar, in recognition of a lawyer's
role as an officer of the court. It requires a demonstration that the
reinstatement of the petitioner will not bring the bar or the justice system into disrepute,
but rather that the petitioner, if
reinstated, will be a credit to
[*14] the legal profession.
Pavageau's
Petition for
Reinstatement
Applying the foregoing standards to Pavageau's petition, we conclude that the
hearing panel correctly found that Pavageau did not meet her burden of demonstrating by
clear and convincing evidence that she should be
reinstated to the
practice of law in Nevada.
First, Pavageau did not present recommendations from anyone who knew her in
support of her petition. As discussed above, testimony or affidavits from
employers, co-workers or longtime friends would be relevant and
beneficial in determining whether Pavageau has rehabilitated herself. Also in this
regard, Pavageau could provide evidence of any community service or volunteer
work she has done during the period of her
resignation.
Second, Pavageau must demonstrate her financial responsibility. It appears that
at the time of the hearing, she had not found steady employment and relied on
her family for at least a portion of her living expenses. Evidence that she is
financially independent and responsible would support her effort to be
reinstated.
Third, Pavageau has not completed her
restitution payments.
While she has paid a substantial part of what she owes,
[*15] she will be a stronger candidate for
reinstatement after the
restitution is paid in full.
Fourth, Pavageau's testimony concerning her reaction to the
muscle
relaxers was uncorroborated. It would be
beneficial to have medical testimony or documentation in support of Pavageau's testimony,
if available. Also, the testimony of Pavageau's brother, whom she stated
discovered the connection between the
medication and her abnormal behavior, would be helpful.
Finally, Pavageau presented little evidence to support a finding that she has
the requisite
learning in law to warrant her
reinstatement. While some of her employment during her period of
resignation has been law-related, it is not clear that this employment has kept Pavageau's
legal knowledge current. Also, Pavageau has been unemployed for substantial
periods of time. The record reflects that Pavageau has not taken any continuing
legal education courses during the period of her
resignation. It appears that Pavageau could provide additional support for a future
petition by completing some form of legal education. n4
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n4 In our November 2, 1989, order of
suspension, we indicated that a possible condition of
reinstatement would be that Pavageau must sit for and pass the Nevada
bar examination. After further review, we conclude that Pavageau need not sit for the Nevada
bar examination as a condition of
reinstatement.
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[*16]
Pavageau's brief petition and her testimony alone, although favorable to her,
were insufficient to satisfy the
clear and convincing evidence standard. We therefore approve the decision of the
hearing panel and deny the petition without prejudice. n5
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n5 Pursuant to SCR 116(7), Pavageau may file another petition in one year. We
make no comment at this time on the merits of any such petition.
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It is so ORDERED.
ROSE, C. J.
YOUNG, J.
MAUPIN, J.
SHEARING, J.
AGOSTI,
J.
LEAVITT, J.
BECKER, J.
