8 29 13 553 Doc 51 Hafter v. SBN

Case 2:10-cv-00553-PMP-LRL Document 51 Filed 08/29/13 Page 1 of 9
1 Rew R. Goodenow, Bar No. 3722

2 Robert W. DeLong, Bar No. 10022
P ARSONS BEHLE & LATIMER
3 50 West Liberty Street, Suite 750
Reno, NV 89501
4 Telephone: (775) 323-1601
Facsimile: (775) 348-7250
5 rgoodenow@parsonsbehle.com
6 rdelong@parsonsbehle.com
7 Attorneys for Defendants
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
I ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
11
JACOB HAFTER, ESQ.,
12
Plaintiff,
13 v.
14 DAVID CLARK, in his official capacity;
15 GLENN MACHADO, in his official
capacity; PHIL PATTEE, in his official
16 capacity; DOE Defendants I though X,
inclusive; and ROE CORPORATIONS A
17 through Z, inclusive,
Defendants.
Case No. 2:10-cv-00553-PMP-LRL
18
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21
MOTION TO DISMISS
Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants David Clark, Glenn Machado and Phil
Pattee, by and through their counsel of record, Parsons Behle & Latimer, hereby move to dismiss
22 this case based on the doctrine of issue preclusion. This motion is made and based on the
23 following Memorandum of Points and Authorities, the attached exhibits, the Nevada Supreme
24 Court Order Disapproving Panel Recommendation, Remanding for Imposition of Private
25 Reprimand, and Assessing Costs filed on March 7, 2012, in Case No. 57298, and all pleadings
26 and papers on file herein.
27 / / /
28
PARSONS
BEHLE &
LATIMER
4834-6389-6853.1
1
1
2
3 I.
4
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION:
The Plaintiff s Third Amended Complaint should be dismissed by this Court because the
Order Disapproving Panel Recommendation, Remanding for Imposition of Private Reprimand,
5
and Assessing Costs, (attached hereto as Ex. 1) precludes all of the claims and issues raised by the
6
Plaintiff Jacob Hafter, Esq. ("Hafter") in this case. Hafter's case before this Court raises the same
7
constitutional political speech claims that were fully litigated and addressed by the Nevada
8
Supreme Court in Hafter's appeal of a recommendation reached by the State Bar's disciplinary
9
panel. Hafter should not be permitted another bite at the apple in this case, when all of his claims
10
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12
13
were fully considered and disposed of within proceedings before the Nevada Supreme Court.
II. STATEMENT OF RELVANT UNDISPUTED FACTS:
Hafter is an attorney licensed to practice law in the State of Nevada. As is set forth in the
14 Third Amended Complaint (Doc. # 50), on April 13, 2010, the State Bar of Nevada opened a
15 grievance file (NI0-18-1227) regarding a press release issued by Hafter, and communications
16 between Hafter and a reporter. The instant federal district court case constitutes a collateral
17 attack on that disciplinary process.
18
This case was initially filed by Hafter on April 16, 2010 (Doc. # 1), and Hafter's Second
19 Amended Complaint (Doc. #32) was dismissed by this Court based on abstention principles (Doc.
20 #38). After the dismissal, Hafter filed an Emergency Petition for a Writ of Prohibition before the
21 Nevada Supreme Court on May 28, 2010, seeking "to preclude [the State Bar] from engaging in
22 their discipline of [Hafter] for comments he made as candidate for Attorney General in a press
23 release issued by his campaign and comments he made to a reporter." (Emergency Writ Petition,
24 Case No. 56124, p. 1.) The petition was denied by the Nevada Supreme Court on June 1, 2010,
25 because no discipline had yet been imposed at the time the petition was filed. The Court further
26 found that "in the event that a decision is reached to impose discipline, [Hafter] has the right to
27 appeal an adverse decision against him to [the Nevada Supreme Court.]"
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PARSONS
BEHLE &
LATIMER
2
4834-6389-6853, I
1 Disciplinary proceedings were commenced and a letter was sent to Hafter informing him
2 of the State Bar's concerns that he had engaged in professional misconduct. (Third Amended
3 Complaint 36.) Hafter was given the opportunity to respond to the letter within 10 days, and he
4 responded on April 14, 2010. (Third Amended Complaint 38-39.) The State Bar notified
5 Hafter in an e-mail that, among other things, the panel voted unanimously to impose a letter of
6 reprimand. (Third Amended Complaint 41.) Hafter then wrote a letter objecting to the
7 reprimand and requested a formal hearing. (Third Amended Complaint 42.) A formal
8 complaint was filed by the State Bar on July 26, 2010, which was answered by Hafter on the
9 same day. (Third Amended Complaint 49-51.) A hearing was held on the matter by the panel
10 on November 30, 2010. (Third Amended Complaint 52.) The disciplinary panel ultimately
11 determined that Hafter's statements and press release were material misstatements in violation of
12 RPC 8.1 (a) and 8.4(c), but were not a violation ofRPC 8.4(d). (Third Amended Complaint 53.)
13 The recommendation by the panel was automatically reviewed by the Nevada Supreme Court and
14 Hafter filed an Opening Brief in connection with the review on February 7, 2011. (Ex. 2.) The
15 Nevada Supreme Court ultimately entered an Order in the case determining that "Hafter violated
16 RPC 8.4(c), but ... that no RPC 8.1 (a) violation was shown." (Ex. 1, p. 5.) The Court also stated
17 that "no more than a private reprimand is appropriate." (Ex. 1, p. 5.)
18 On August 2, 2013, this Court entered an Order (Doc. #49) granting Hafter's Motion to
19 Reopen Case and permitting Hafter to file his Third Amended Complaint. The Third Amended
20 Complaint was filed on August 7, 2013 (Doc. #50), and it raises issues that are identical to those
21 resolved by the Nevada Supreme Court within the context of Hafter's appeal of the disciplinary
22 panels'recommendations.
23
24 III. DISCUSSION:
A. Standard of Review:
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26
Under Rule 12(b )(6) of the Federal Rules of Civil Procedure, a district court must dismiss
27 a complaint if it fails to state a claim upon which relief can be granted. It is settled that "a federal
28 court 'must give to a state-court judgment the same preclusive effect as would be given that
PARSONS
BEHLE &
LATIMER
4834-6389-6853.1
3
1 judgment under the law of the State in which the judgment was rendered.'" White v. City of
2 Pasadena, 671 F.3d 918, 926 (9th Cir. 2012) (quoting Migra v. Warren City Sch. Dist. Bd. of Ed.,
3 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984. "In determining the preclusive effect of
4 a state administrative decision or a state court judgment, we follow the state's rules of
5 preclusion." White, 671 F.3d at 926 (citing Kremer v. Chem. Canst. Corp., 456 U.S. 461, 482,
6 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982. Furthermore, "[t]he rules of claim and issue preclusion
7 apply equally to 1983 actions in federal courts." Id. (citing Allen v. McCurry, 449 U.S. 90, 98,
8 101 S.Ct. 411, 66 L.Ed.2d 308 (1980. Because Plaintiff brought this case pursuant to 43 U.S.C.
9 1983 and the Defendants assert that it should be precluded by a prior ruling of the Nevada
10 Supreme Court on the same issue in an extraordinary writ proceeding, Nevada's rules regarding
11 issue preclusion are applicable.
12 "In Nevada, issue preclusion requires that (1) an issue be identical, (2) the initial ruling
13 was final and on the merits, (3) 'the party against whom the judgment is asserted' was a party or
14 in privity with a party in the prior case, and (4) 'the issue was actually and necessarily litigated.'"
15 Bower v. Harrah's Laughlin, Inc., 125 Nev. 470, 481, 215 P.3d 709, 718 (2009) holding modified
16 by Garcia v. Prudential Ins. Co. of Am., 293 P.3d 869 (Nev. 2013) (quoting Five Star Capital
17 Corp. v. Ruby, 124 Nev. 1048, 1056, 194 P.3d 709,713 (2008. The doctrine "is based upon the
18 sound public policy of limiting litigation by preventing a party who had one full and fair
19 opportunity to litigate an issue from again drawing it into controversy." Thompson v. City of
20 North Las Vegas, 108 Nev. 435,439-40, 833 P.2d 1132, 1134-35 (1992). The burden rests with
21 the moving party to establish that the prior judgment has a preclusive effect. Bennett v. Fidelity
22 & Deposit Co., 98 Nev. 449, 452, 652 P.2d 1178, 1180 (1982).
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B. This Court Should Consider the Attached Documents without Converting this
Motion to Dismiss into a Motion for Summary Judgment.
This Court should consider the attached Nevada Supreme Court Order Disapproving Panel
26 Recommendation (Ex. 1), and Hafter's Opening Brief Opening Brief (Ex. 2) without converting
27 this motion to dismiss to a motion for summary judgment pursuant to Fed. R. Civ. P. 12(d),
28
PARSONS
BEHLE &
LATIMER
4834-6389-6853.1
4
1 because the documents are public documents that concern a threshold issue that is integral to the
2 allegations contained in the complaint, and which were described in detail within this Court's
3 Order permitting the filing of the Third Amended Complaint (Doc. # 49). In addition, the
4 authenticity of these documents is readily discernible, as they are public documents that are
5 available on the Nevada Supreme Court's website. Although these documents were not attached
6 as Exhibits to the Third Amended Complaint, this Court can properly review the attached
7 documents because they are a critical portion of the proceedings Hafter seeks to have declared
8 unconstitutional. "[A] district court ruling on a motion to dismiss may consider a document the
9 authenticity of which is not contested, and upon which the plaintiff s complaint necessarily
10 relies," regardless of whether the document is attached to the plaintiffs complaint. See Parrino
11 v. FHP, Inc., 146 F.3d 699, 705-706 (9
th
Cir. 1998) (citing Branch v. Tunnell, 14 F.3d 449, 454
12 (9
th
Cir. 1994. "Where a plaintiff has 'reli[ed] on the terms and effect of a document in drafting
13 the complaint,' and that document is thus 'integral to the complaint,' we may consider its contents
14 even if it is not formally incorporated by reference." Broder v. Cablevision Sys. Corp., 418 F.3d
15 187, 196 (2d Cir. 2005) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.
16 2002). "The court may treat such a document as 'part of the complaint, and thus may assume
17 that its contents are true for purposes of a motion to dismiss .... '" Marder v. Lopez, 450 F.3d
18 445 (9th Cir. 2006) (quoting United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003.
19 Accordingly, this Court should consider Exhibits 1 and 2 to this Motion without converting it to a
20 motion for summary judgment.
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c. The State Court Order Meets all of the Elements Required to Preclude
Harter's Case before this Court.
1. The Issues are Identical.
The Third Amended Complaint raises claims based upon 43 U.S.C. 1983 for "violation
of his rights under the First and Fourteenth Amendments to the United States Constitution."
26 (Third Amended Complaint p. 2:26-27.) Count I states that "[t]he First Amendment of the United
27 States Constitution, applicable to the states under the Fourteenth Amendment, guarantees the
28 right of freedom of speech, especially political speech .... " These issues are identical to the
PARSONS
BEHLE &
LATIMER
4834-6389-6853.1
5
1 issue raised by Hafter in his Appeal from the Decision, Findings of Fact and Recommendation,
2 filed in Supreme Court Case No. 57298. (Ex. 2, pp. 10-17.) Within the Appeal Hafter states that
3 the first issue presented for review is "[w]hether the State Bar of Nevada has the ability to
4 discipline a member of the Bar for speech made as a political candidate in a press release." (Ex.
5 2, p. 1 :3-4.) It is undeniable that Hafter is challenging the propriety of the State Bar's
6 disciplinary proceeding before this Court by raising the same constitutionality issues that he
7 asserted before the Nevada Supreme Court within the context of his appeal of the disciplinary
8 panel's ruling.
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2. The Order Denying Hafter's Appeal was Final on its Merits.
The Nevada Supreme Court Order's Disapproving Panel Recommendation (Ex. 1) was the
final determination on the merits of Hafter' s appeal of the Disciplinary Panel's Recommendation
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13
because a remittitur was issued by the Court and the United States Supreme Court denied Hafter's
petition for writ of certiorari. Hafter v. State Bar of Nev., 81 USL W 3110, 81 USL W 3262, 81
14
USLW 3264 (U.S. Nov. 13, 2012) (No. 12-290). It is clear that the Nevada Supreme Court
15
reached the merits of the Hafter's appeal because the Court's Order Disapproving the Panel
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Recommendation set forth a lengthy discussion of the issues raised by Hafter in his appeal. (Ex.
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PARSONS
BEHLE &
LATIMER
1, pp. 4-5.)
3. Hafter was the Party Against Whom the Decision was Entered.
Hafter was an appellant in his appeal of the Disciplinary Panel's Recommendation (Ex. 2,
p. 2:5.), and he was clearly the party against whom the decision was entered. (Ex. 1, pp. 5-6.)
4. The Issues Before this Court were Actually and Necessarily Litigated
Before the Nevada Supreme Court.
The constitutionality issues raised by Hafter in this case were actually and necessarily
raised and litigated before the Nevada Supreme Court because section VI (A) of Hafter's
appellate brief detailed his First Amendment political speech arguments-which are identical to
the arguments raised before this Court. (Ex. 2, pp. 10-17.) Hafter argued within his brief that his
comments and the press release were "political speech which gave rise the instant Complaint" and
6
4834-6389-6853.1
that "such speech, is protected under the First Amendment." (Ex. 2, p. 13:14-15.) He also cited
2 numerous opinions discussing the application of the First Amendment to speech that was asserted
3 to be political speech. (Ex. 2, pp. 10-12.) Hafter then argued that "None of the Express
4 Limitations on First Amendment Protections Apply in this Case." (Ex. 2, p. 13:17-18.) Finally,
5 he argued that "[w]hile the Bar may have a compelling state interest in regulating attorneys, such
6 regulation cannot impede on an attorney's right to engage in political speech, especially when one
7 is a candidate for political office; such sanctions are nothing more than violative of the First
8 Amendment." (Ex. 2, pp. 16-17.)
9 All of Hafter's constitutional arguments were clearly considered and addressed by the
10 Nevada Supreme Court within its Order Disapproving the Panel's recommendation. (Ex. 1, pp.
11 4-5.) The Court acknowledged Hafter's arguments when it stated that "Hafter claims that his
12 misrepresentations cannot constitute a violation of an ethical rule because they are protected
13 political speech." (Ex. 1, p. 4.) However, the Court rejected this argument when it recognized
14 that:
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PARSONS
BEHLE &
LATIMER
Hafter did more than simply engage in the pugilistic rhetoric of a
political campaign. First he improperly cloaked himself in the
authority of the Southern Nevada Disciplinary Board. Then, after
insinuating that he spoke with some degree of inside knowledge
due to his membership on the disciplinary panel, he claimed that he
confirmed with the State Bar that an ethical complaint had been
filed against the attorney general when he knew no such thing had
happened. He then repeated this statement to the media on a
conference call. These misrepresentations are not protected
political speech.
(Ex. 1, p. 4 (citations omitted) (emphasis added.
The Nevada Supreme Court specifically determined that the First Amendment did not
protec,t Hafter's speech when it stated that:
4834-6389-6853.1
[Hafter's] misrepresentations are not protected political speech.
"The guarantee of freedom of speech will not protect [a lawyer in
the context of a political campaign] from disciplinary action ... if
he is guilty of known falsehood intentionally used and published for
the purpose of misleading the voters and gaining personal
advantage for himself or his candidate." Thus, we conclude that
Hafter's actions constitute a violation ofRPC 8.4(c).
7
1 (Ex. 1, pp. 4-5 (quoting State v. Russell, 610 P.2d 1122 (Kan. 1980).)
2 This analysis by the Nevada Supreme Court clearly demonstrates that it fully considered
3 and addressed Hafter's First Amendment political speech arguments, and addressed them on their
4 merits. Hafter's challenges to the validity of the disciplinary process were actually litigated and
5 determined by a valid and final judgment of the Nevada Supreme Court. Accordingly, its
6 determination should be considered conclusive as to this litigation.
7
8 IV.
CONCLUSION:
9
Based on the forgoing, this Court should dismiss the Third Amended Complaint because
the Order Disapproving Panel Recommendation precludes all of the claims and issues raised by
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PARSONS
BEHLE &
LATIMER
Hafter in this case.
Dated: August 29,2013.
4834-6389-6853.1
8
P ARSONS BEHLE & LATIMER

Rew R. Goodenow, Bar No. 3722
Robert W. DeLong, Bar No. 10022
Attorneys for Defendants
CERTIFICATE OF SERVICE
2 I hereby certify that on this 2.1,t.-{ day of August, 2013, I caused to be filed and served
3 through the United States District Court's ECF system, a true and correct copy of the foregoing
4 document MOTION TO DISMISS, to:
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Jacob L. Hafter
911 N. Buffalo Drive, Suite 209
Las Vegas, NV 89128
(702) 405-6700
jhafter@hafterlaw.com
20820.001/4827-1166-1074.1
4835-4975-1829.1
Case 2:10-cv-00553-PMP-LRL Document 51-1 Filed 08/29/13 Page 1 of 7
EXHIBIT 1
EXHIBIT 1
An unpublis d order shall not be regarded as precedent and shall not be cited as legal authority. SCR 12 .
SUPREME COURT
OF
NEVADA
(0) 1947A \ J ~
IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE DISCIPLINE
OF JACOB HAFTER, ESQ.
No. 57298
FILeD
MAR 072012
ORDER DISAPPROVING PANEL RECOMMEN ATION,
REMANDING FOR IMPOSITION OF PRIVATE REPRIMAND,
AND ASSESSING COSTS
This IS an automatic review of a Northern Nevada
Disciplinary Board hearing panel's recommendation that attorney Jacob
Hafter receive a public reprimand for violating RPC 8.1(a) (false statement
of material fact in connection with attorney admission or discipline
process) and RPC 8.4(c) (misrepresentation). See SCR 105(3)(b). While
we conclude that insufficient evidence supports the panel's conclusion that
!
Hafter violated RPC 8.1(a), we conclude that sufficient evidence supports
the panel's determination that Hafter violated RPC 8.4(c). We further
conclude that Hafter's conduct warrants a private reprimand. We
therefore disapprove the panel's recommendation of a public reprimand
and remand for the panel to impose a private reprimand.
Facts
Hafter was a candidate for the office of Nevada Attorney
General in 2010. Hafter believed that the incumbent to that office,
Catherine Cortez Masto, violated attorney-client privilege by releasing to
the media correspondence between the offices of the attorney general and
the governor. Accordingly, Hafter called the Nevada State Bar and asked
SUPREME COURT
OF
NEVADA
(0) 1947A
whether anyone at the governor's office had reported this alleged
misconduct to the Bar, and was told that no one had. Hafter then
attempted to file an anonymous complaint against General Masto but was
told that this was impossible.
Nevertheless, five days later Hafter issued a press release on
his campaign letterhead entitled "Hafter Responds to Allegations Masto
Violates Attorney Ethics Rules." In the release, Hafter stated that: "Mr.
Hafter, who sits on the Southern Nevada Disciplinary board, was made
aware of this issue on Friday, April 2, 2010 .... Mr. Hafter called the Bar
and confirmed that a report of Ms. Masto's violation was made to the State
Bar." The same day, Hafter participated in a conference call hosted by the
Nevada News Bureau. The author of the resulting news story reported
that "Hafter said today he received confirmation from a reliable source
inside the Nevada State Bar that a formal ethics complaint has been filed
against the Attorney General for violations of attorney-client privilege."
The State Bar then filed a formal complaint alleging that
Hafter's statements to the press amounted to a violation of RPC 8. 1 (a) for
knowingly making a false statement of material fact in connection with a
disciplinary matter, RPC 8.4(c) for conduct involving deceit and
dishonesty, and RPC 8.4(d) for conduct prejudicing the administration of
justice. After a hearing, a panel of the Northern Nevada Disciplinary
Board found that Hafter's statements amounted to material
misstatements in violation of RPC 8.1(a) and 8.4(c), but did not find a
violation of RPC 8.4(d). The panel recommended that Hafter be publicly
reprimanded and assessed the costs of the disciplinary proceeding.
Discussion
2
SUPREME COURT
OF
NEVAOA
(0) 1947A
Although persuaSIve, the panel's findings and
recommendations are not binding on this court, Matter of Discipline of
Droz, 123 Nev. 163, 168, 160 P.3d 881, 884 (2007), and we will conduct an
independent, de novo review to determine whether and what type of
discipline is warranted, see In re Stuhff, 108 Nev. 629, 633, 837 P.2d 853,
855 (1992); In re Kenick, 100 Nev. 273, 275-76, 680 P.2d 972, 973-74
(1984).
Having reviewed the record of the proceedings before the
board and the briefs filed in this court, we conclude that there is not clear
and convincing evidence that Hafter violated RPC 8.1(a). In relevant part,
RPC 8.1(a) states that "a lawyer ... in connection with a disciplinary
matter, shall not ... [k]nowingly make a false statement of material fact."
Hafter's statements to the press were certainly false statements, but we
reject the State Bar's assertion that because the subject matter of the
statements concerned a disciplinary matter, they were made "in
connection with a disciplinary matter." Instead, we conclude that there
must be clear and convincing evidence that Hafter's false statements were
made to a disciplinary authority in order to sustain a charge that he
violated RPC 8.1(a). See ABA Annotated Model Rules of Profl Conduct
8.1 (2011) ("Rule 8.1(a) imposes a duty of candor in connection with all
communications with admission authorities and disciplinary authorities."
(emphasis added; Geoffrey C. Hazard, Jr. & W. William Hodes, The Law
of Lawyering 62.3, at 62-5 (3d ed. Supp. 2008) ("Rule 8.1(a) states a
simple rule: lawyers ... may not deliberately lie to regulatory authorities
about material facts."). Hafter did not make his false statements to any
disciplinary authority and we therefore conclude that he did not violate
RPC 8.1(a).
3
SUPREME COURT
OF
NEVADA
(0) 1947A ..,
However, Hafter's false statements to the press support the
panel's conclusion that he violated RPC 8.4(c). That rule states: "It is
professional misconduct for a lawyer to ... [e]ngage m conduct
involving ... misrepresentation." The evidence presented at the hearing
clearly demonstrated that Hafter either intended to mislead in his press
release or, at the least, acted in reckless disregard for the truth. See In re
Surrick, 338 F.3d 224, 234 (3d Cir. 2003); In re Conduct of Huffman, 13
P.3d 994, 998 (Or. 2000) ("'Misrepresentation' may include an affirmative
misstatement, an intentional failure to disclose material facts that mayor
may not have been intended to deceive, or a combination of both.").
Hafter claims that his misrepresentations cannot constitute a
violation of an ethical rule because they are protected political speech.
Hafter errs. A lawyer who is a candidate for political office has a First
Amendment right to discuss public issues and advocate his own election.
Buckley v. Valeo. 424 U.S. 1, 52 (1976). However, Hafter did more than
simply engage in the pugilistic rhetoric of a political campaign. First, he
improperly cloaked himself in the authority of the Southern Nevada
Disciplinary Board. Cf. Jenevein v. Willing, 493 F.3d 551, 560 (5th Cir.
2007) (reaffirming judge's First Amendment right to comment on matters
of public concern, but upholding public censure for his "use of the
trappings of judicial office to boost his message"). Then, after insinuating
that he spoke with some degree of inside knowledge due to his
membership on the disciplinary panel, he claimed that he confirmed with
the State Bar that an ethical complaint had been filed against the
attorney general when he knew no such thing had happened. He then
repeated this statement to the media on a conference call. These
misrepresentations are not protected political speech. "The guarantee of
4
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OF
NEVADA
(0) 1947A
freedom of speech will not protect [a lawyer in the context of a political
campaign] from disciplinary action ... if he is guilty of known falsehood
intentionally used and published for the purpose of misleading the voters
and gaining personal advantage for himself or his candidate." State v.
Russell, 610 P.2d 1122, 1127 (Kan. 1980); see also Garrison v. Louisiana,
379 U.S. 64, 75 (1964) ("[T]he knowingly false statement and the false
statement made with reckless disregard of the truth, do not enjoy
constitutional protection."). Thus, we conclude that Hafter's actions
constitute a violation of RPC 8.4(c).
The purpose of attorney discipline is to protect the public, the
courts, and the legal profession, not to punish the attorney. State Bar of
Nevada v. Claiborne, 104 Nev. 115, 213, 756 P.2d 464, 527-28 (1988). In
determining the appropriate discipline, this court has considered four
factors to be weighed: "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 Lerner, 124 Nev.
1232, 1246, 197 P.3d 1067, 1077-78 (2008). In considering the panel's
recommended discipline here, we note that Hafter has never been
disciplined before, no clients were harmed, and the incident is an isolated
one. In those circumstances, a private reprimand is appropriate. See ABA
Standards for Imposing Lawyer Sanctions 7.4 (stating that an
admonition (the equivalent of a private reprimand) is generally the
appropriate discipline when the violation is isolated and "causes little or
no actual or potential injury to a client, the public, or the legal system").
We agree that Hafter violated RPC 8.4(c), but we conclude
that no RPC 8.1(a) violation was shown. We further conclude that no
more than a private reprimand is appropriate. Accordingly, we remand
5
SUPREME COURT
OF
NEVADA
(0) 1947A ...,
for the panel to impose a private reprimand of attorney Jacob Hafter for
violating RPC B04(c). Also, Hafter shall pay the costs of the disciplinary
proceeding.
It is so ORDERED.
C.J.
Saitta
Jf
/Gibbons
, J.
---<--I J.
"
Hardesty
k
...:-....:---,,-------f----f---, J.
Cherry
-i _____
Parraguirre
cc: Law Office of Jacob 1. Hafter & Associates
Clark County District Attorney/Civil Division
State Bar of Nevada/Las Vegas
6
EXHIBIT 2
EXHIBIT 2
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RECEIV\:'f)
Las Vegas Drop
CLERI<. OF SUPRfME COURT
IN THE SUPREME COURT OF THE 30
Supreme Court Docket No. 57298
IN THE MA TIER OF THE DISCIPLINE OF
JACOB HAFTER, ESQ.

FEB 07 20\\

CLERK CLERK
Appeal from the Decision, Findings of Fact
and Recommendation
APPELLANT'S OPENING BRIEF
JACOB L. HAFTER, Esq.
Nevada Bar Number 9303
FIleD
LAW OFFICE OF JACOB HAFfER & ASSOCIATES
7201 W. Lake Mead Blvd., Ste 210
Las Vegas, Nevada 89128
Petitioner-Appellant
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I.
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IV.
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VI.
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D.
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F.
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2.
VII.
TABLE OF CONTENTS
STATEMENT OF ISSUES PRESENTED FOR REVIEW ........................................................... ; .............. 1
STATEMENT OF THE PROCEDURE OF THE CASE ............................................................................. 2
STATEMENT OF THE FACTS .................................................................................. ; ................................ 2
STANDARD OF REVIEW .......................................................................................................................... 9
SUMMARY OF ARGUMENT .................................................................................................................... 9
ARGUMENT .............................................................................................................................................. 10
ASSUMING THAT THE ALLEGATIONS IN THE COMPLAINT ARE TRUE, THE FIRST
AMENDMENT PROTECTS APPELLANT'S ACTIONS ................................................................... 10
The First Amendment Protects Appellant's Actions in this Case ....................................................... 10
None of the Express Limitations on First Amendment Protections Apply in this Case ..................... 13
The Bar's Duty to Regulate the Profession Does Not Trump Political Speech. ................................. 14
A PRIMA FACIA ELEMENT FOR PROVING A VIOLATION OF RULE OF PROFESSIONAL
CONDUCT ("RPC") 8.1 IS A SHOWING THAT THERE WAS AN ON-GOING DISCIPLINARY
ACTION ................................................................................................................................................ 17
THE BAR FAlLED TO DEMONSTRATE A PRIMA FACIA ELEMENT FOR PROVING A
VIOLATION OF RPC S.I, AS THERE WAS NO ON-GOING DISCIPLINARY ACTION .............. 17
A PRIMA FACIA ELEMENT FOR PROVING A VIOLATION OF RPC 8A(d) IS THAT THERE BE A
SHOWING OF PREJUDICE TO THE ADMINISTRATION OF JUSTICE ........................................ IS
THE BAR FAlLED TO DEMONSTRATE A PRIMA FACIA ELEMENT FOR PROVING A
VIOLATION OF RPC 8.4{d), AS THERE WAS NO EVIDENCE THAT THE ADMINISTRATION
OF JUSTICE WAS PREJUDICED BY APPELLANT'S ACTIONS ................................................... 19
THE HEARING PANEL VIOLATED APPELLANT'S DUE PROCESS RIGHTS ................................. 19
The Panel altered the charges which were being made against Appellant in their Decision .............. 20
The Panel, through the Panel Chair, engaged in harassing actions against Appellant which interfered
with and frustrated his ability to defend himself ............................................ ; ................................... 21
CONCLUSION ........................................................................................................................................... 21
APPELLANT'S OPENING BRIEF - i
1
TABLE OF AUTHORITIES
2 Cases
3
Beauharnais v, Illinois, 343 U.S. 250,254-55, 72 S.Ct. 725 (1952) ......................................... 14
4
Brandenburg v. Ohio. 395 U.S. 444, 447-49,89 S.Ct. 1827 (1969) ......................................... 14
5
Brown v. Hartlage, 456 U.S. 45, 53, 1853 WL 7634 (1982) ..................................................... 11
6
Buckley v. American Constitutional Law Foundation. Inc., 525 U.S. 182, 186, 119 S.Ct. 636
7
(J 999) ......................................................................................................................... " ............ 12
8
Carver y. Dennis. 104 F.3d 847 (6th Cir.I997) ......................................................................... II
9
Chaplin sky v. New Hampshire, 315 U.S. 568,571-72,62 S.Ct. 766, (1942) ........................... 13
10
Citizens United y. Federal Election Com'n, 130 S.Ct. 876 (2010) ..................................... 11, 16
11
Clark v. Cmty. for Creative 468 U.S. 288, 293, 104 S.Ct. 3065 (1984) ..... 14, 15
12
Cornelius v. NAACP Legal Defense & Ed. Fund. Inc., 473 U.S. 788, 800, 105 S.Ct. 3439,
13
(1985) ...................................................................................................................................... 15
14
Federal Election Com'n v. Wisconsin Right To Life. Inc., 551 U.S. 449, 457, 127 S.Ct. 2652,
15
2659 (2007) ....................................................................................................................... 11, 15
16
Finkelstein v. 924 F.2d 1449, 1453 (9th Cir.1991) ................................................ 11, 12
S 17
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Galli v. New Jersey Meadowlands Comm'n, 490 F.3d 265, 272-73 (3d Cir.2007) .................. 11
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Giboney v. Empire Storage & Ice Co., 336 U.S. 490,498,69 S.Ct. 684 (1949) ...................... 14
Hill v, Colorado, 530 U.S. 703, 787, 120 S.Ct. 2480 (2000) ..................................................... 16
Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S.
789,816, 104 S.Ct. 2118 (1984) ............................................................................................. 12
Meyer v. Grant. 486 U.S. 414,422, 108 S.Ct. 1886 (1988) ...................................................... 12
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Millerv. 413 U.S. 15,24,93 S.Ct. 2607 (1973) ..................................................... 14
Murphy v. Cockrell, 505 F.3d 446,451 (6th Cir.2007) ............................................................. 11
NAACP v. Claiborne Hardware Co., 458 U.S. 886,913, 102 S.Ct. 3409 (1982) ..................... 16
26
Republican Party of Minnesota v. White, 536 U.S. 765, 793, 122 s.et. 2528, 2544 (2002) .... 16
27
Roth v, United States, 354 U.S. 476, 483, 77 S.Ct. 1304 (1957) .............................................. 14
28
APPELLANT'S OPENING BRIEF - ii
1 Simpson Strong-Tie Company. Inc. v. Gore, - Cal.Rptr.3d --,2010 WL 1948283 *14
2 (Cal.,2010) .............................................................................................................................. 12
3 Thomas v. Chicago Park Dist., 534 U.S. 316, 323-23, 122 S.Ct 775 (2002) ..................... 14, 15
4 U.S. v. Playboy EntIn't Group. Inc., 529 U.S. 803,816, 120 s.et. 1878 (2000) ...................... 15
5 United States v. Stevens, - U.S. -, 130 S.Ct. 1577,2010 WL 1540082 at *5 (2010) ......... 13
6 Va. Bd. of Pharmacy v. Va. Citizens Consumer Council. Inc., 425 U.S. 748, 771, 96 S.Ct. 1817
7 (1976) ...................................................................................................................................... 14
8 Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746 (1989) .............................. 14
9 Washington v. Finlay, 664 F.2d 913,927-28 (4th Cir.l981) .................................................... 11
10 Wheelerv. TW. of Edison, 326 Fed. Appx. 118, 121 (3d Cir.2009) ........................................ 11
11 Wiggins v. Lowndes County. Miss., 363 F.3d 387, 390 (5th Cir.2004) .................................... 11
12
Rules
13
RPCS.l ....................................................................................................................................... 1, 17
14
RPC 8.4 .................................................................................................................................. I, 18
15
Constitutional Provisions
16
U.S. Const .. amend. I ................................................................................................................. 10
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APPELLANT'S OPENING BRIEF iii
1 I. STATEMENT OF ISSUES PRESENTED FOR REVIEW
2
3 1. Whether the State Bar of Nevada has the ability to discipline a member of the
4 Bar for speech made as a political candidate in a press release.
5
6 2. Whether the State Bar of Nevada can discipline a licensed attorney for violation
7 of Rule of Professional Conduct ("RPC") 8.1 for making statements when the State Bar of
8 Nevada admits that there were no on-going disciplinary actions occurring when alleged
9 statements were made.
10
11 3. Whether the State Bar of Nevada met its burden of demonstrating by clear and
12 convincing evidence that Mr. Hafter made a knowingly "false statement of material fact" as he
13 was charged with in the Complaint.
14
15 4. Whether the State Bar of Nevada can discipline a licensed attorney for violation
16 of RPC 8.4(d) for engaging in "conduct prejudicial to the administration of justice" when the
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State Bar of Nevada admits that there were no on-going disciplinary actiQns occurring when
such conduct was alleged to occur.
5. Whether the State Bar of Nevada met its burden of demonstrating by clear and
convincing evidence that Mr. Hafter engaged in "conduct involving deceit and dishonesty and
conduct prejudicial to the administration of justice," as he was charged with in the Complaint.
6. Whether the various decisions made by Mr. Moore, as chair of the Hearing
Panel, were arbitrary and capricious, and if they were, did such violate Mr. Hafter's due
26 process rights.
27
28
APPELLANT'S OPENING BRIEF - 1
1
II. STATEMENT OF THE PROCEDURE OF THE CASE
2 This is an appeal from the Decision, Findings of Fact and Recommendation issued by
3 the Hearing Panel appointed from the Northern Nevada Disciplinary Board on December 3,
4 2010.
5 On December 7,2010, Appellant, Jacob Hafter, Esq., filed a Notice of Appeal.
6 On January 3, 2011, the State Bar of Nevada filed a Record of Disciplinary
7 Proceedings, Pleadings, Transcript of Hearing and Pleadings Filed in United States District
8 Court before this Court in this matter.
9 This Court has jurisdiction over this appeal pursuant to Supreme Court Rule 105(3).
10
11
III. STATEMENT OF THE FACTS
12 I. On or about June 23, 2005, Appellant was admitted to practice law in the State of
13 Nevada.
14 2. On March 1, 2010, Appellant filed his Petition for Candidacy to run for the Attorney
15 Generalofthe State of Nevada.
16 3. In his Petition for Candidacy, Appellant declared his candidacy as a member of the
17 Republican party.
18 4. On March 24, 2010, Governor Jim Gibbons wrote Catherine Masto, the incumbent
19 Attorney General for the State of Nevada ("Masto") a letter asking Masto to litigate against the
20 Patient Protection and Affordable Care Act of 2010 ("Obamacare") on behalf of the State of
21 Nevada .. JLH Hearing Exhibit at 002.
22 5. The March 24, 2010 letter was delivered electronically via electronic mail from
23 Governor Gibbons by Adriana Fralick, Esq., counsel to the Governor ("Fralick"), to Jim T.
24 Spencer. JLH Hearing Exhibit at 004.
25 6. The March 24, 2010 electronic mail contained the March 24, 2010 letter from the
26 Governor to Masto as an attachment with the body of the message stating that "[r]elease of this
27 letter to public should not be construed as express waiver of attny [sic] client privilege in this
28 manner." JLH Hearing Exhibit at 004; Fralick testimony at TR87-90.
1 7. On March 24, 2010, Masto responded to Governor Gibbons' letter advising the
2 Governor that she would take the matter under advisement. JLH Hearing Exhibit at 006-7.
3 8. The March 24, 2010 letter from Masto was leaked to the press, but it was not done so
4 by the Governor's office. Reedy testimony at TR52-53.
5 9. On March 25, 2010, Governor Gibbons responded to Masto, expressing frustration
6 with her position and asking her, again, to initiate litigation against Obamacare on behalf of the
7 State of Nevada. JLH Hearing Exhibit at 009-10 .
.
8 10. The March 25, 2010 letter from the Governor was sent to the press by the Governor's
9 office. Reedy testimony at TR53.
10 ii. On March 26, 2010, Masto wrote Governor Gibbons, again, to infonn him that she
11 would take his request under advisement. JLH Hearing Exhibit at 0012-13.
12 12. The March 26, 2010 letter from Masto was leaked to the press, but it was not done so
13 by the Governor's office. Reedy testimony at TR53-54.
14 13. Robin Reedy, the Chief of Staff for the Governor was "shocked" that this letter would
15 be leaked to the press by the Attorney General. Reedy testimony atTR54.
16 14. Ms. Reedy's shock was due to Masto's inclusion of numerous confidential matters in
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addition to the Obamacare issue and that such was "magically leaked to the press." Reedy
testimony at TR55.
15. On March 30, 2010, Masto, wrote a letter to Governor Jim Gibbons declining Governor
Gibbon's direction to Masto to litigate against Obamacare on behalf of the State of Nevada.
JLH Hearing Exhibit at 0015-18.
16. In her March 30, 2010 letter, Masto provided her reasoning for why such representation
by her office would not be prudent. JLH Hearing Exhibit at 00 15-18.
17. The March 30, 2010 letter from Masto was leaked to the press, but it was not done so
by the Governor's office. Reedy testimony at TR54.
26 18. Ms. Reedy believed that the release of the Masto letters was a violation of the attorney
27 client privilege between Masto and the Governor's office. Reedy testimony at TR50-57.
28
APPELLANT'S OPENING BRIEF 3
1 19. "From the minute the letter came out," there was shock amongst the "senior staft" of
2 the Governor that such correspondence was released by to the press. Reedy testimony at
3 TR56; Hettrick testimony at 100:4-11.
4 20. The senior staff believed that the Masto "overstepped her bounds of client privilege
5 when she came out and talked about various lawsuits or actions that she was working on
6 behalf" of various people, including the Governor. Reedy testimony at TR6 .. 57.
7 21. Ms. Reedy went public with her beliefs when she said that she believed that such
8 violation occurred "on a couple of TV shows," specifically, "Lawyers, Guns and Money."
9 Reedy testimony at TR55: 15-19.
10 22. These allegations, specifically that Masto violated the attorney client privilege by
11 leaking the various letters to the press, were made public by other people from the Governor's
12 office.
13 23. On April 2, 2010, Fralick had two telephone conversations with Appellant. Fralick
14 testimony at TR82-83.
15 24. The first telephone call occurred at approximately II :25 a.m. and lasted for
16 approximately six (6) minutes, and another at 12:19 p.m. that lasted approximately one (I)
17 minute. Fralick testimony at TR82; JLH Exhibits at 020.
N
j 18 25. During these telephone conversations, Fralick expressed concerns of the Governor's
! j 19 office that Masto "may have violated the attorney/client privilege based on" her release of her

20 letters to the press. Fralick's sworn testimony at TR82-83.
i 21 26. During the April 2, 2010 telephone caUs, Fralick told Appellant that Mr. Hettrick would

r:! ..J C C 22 be appearing on Nevada Newsmakers discussing these concerns. Fralick's sworn testimony at
el V) 23 TR83.

.. t 24 27. During these telephone conversations, Fralick discussed with Appellant about what
.. '"
25 may be done and what the options were with respect to making "an actual bar complaint
====:::!I
26 related to this alleged action." Fralick's sworn testimony at TR83:11-17.
27 28. Based on Appellant's relationship with David A. Clark, Esq. ("Clark") it was agreed
28 that Appenant would call Clark to find out if anyone else had reported to the Bar the
1 Governor's senior staWs concerns about Masto's alleged violations. Fralick's sworn
2 testimony at TR83-84.
3 29. As a result of the conversation with Fralick, at approximately 12:20 p.m., Appellant
4 called Clark about the allegations involving Masto. JLH sworn testimony at 204, JLH Exhibits
5 TR020.
6 30. Appellant began the conversation with Clark by saying "have you heard about these
7 allegations about the AG and the Governor's fight?" JLH sworn testimony at TR203:16-18.
8 31. Appellant continued by saying something to the fact that "Have you heard that there
9 are allegations being made that she's violated Rule 1.6 [regarding] attorney/client privilege. to
10 JLH sworn testimony at TR203:19-20.
11 32. Clark denied hearing such allegations. JLH sworn testimony at TR203:21.
12 33. Clark denied that there were any open disciplinary investigations involving Masto.
13 34. Appellant then informed Clark that such allegations involving Masto were going to be
14 made on Nevada Newsmakers on April 6, 2010. JLH sworn testimony at TR203:22-25.
15 35. Appellant and Clark then discussed whether Appellant could make an anonymous
16 complaint. JLH sworn testimony at TR204.
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36. Clark told Appellant that he could not make an anonymous complaint and that all
complaints must be in writing. JLH sworn testimony at TR204.
37. Clark and Appellant had a discussion about the substance of the allegations and
whether the attorney client privilege attaches to the Attorney General. JLH sworn testimony at
TR204.
38. The conversation ended with Clark telling Appellant that he would discuss the matter
with Bar Counsel. JLH sworn testimony at TR204.
39. On April 6, 2010, Deputy Chief of Staff Lynn Hettrick appeared on the television show
Nevada Newsmakers, where he made public these accusations against Masto. Robin Reedy's
26 sworn testimony at TR56, Hettrick's sworn testimony at TR96, 98-99, JLH Exhibit 022-23.
27 40. At approximately minute 13:57 of the telephone show, the host, Sam Shad, stated the
28 following:
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Now the Attorney General shot back that she was too busy
defending the governor on personal issues. What were your
thoughts on that?
JLH Exhibit 022-23
41. Mr. Hettrick responded by stating:
I think the attorney general over stepped her bounds of client
privilege when she came out and talked about various lawsuits or
actions that she is working on behalf of anybody. I don't think that
was appropriate, quite frankly. But, and I think she disqualified
herself from ever being involved in this suit based on her
comments saying 'let someone else do it and we shouldn't be
involved and ifit works we'll win anyway." All of those things she
said I disagree with anyway.
JLH Exhibit 022-23
42. At approximately minute 15: II of the telephone show, the host, Ray Hagar, and Mr.
Hettrick had the following interchange:
RH: K. You mentioned that you felt that the Attorney General
broke the attorney client privilege with thegovemor on his
personal matters. Correct?
LH: Well on the comments that were made about being too busy
to do various things. Those are all client privilege issues.
And they shouldn't be brought up and mentioned. They
shouldn't even been discussed.
RH: But before she even mentioned that Lynn, those issues had
been discussed at nausea in the media. How is that
breaking attorney client privilege?
LH: Because the media doesn't have client privilege with the
JLH Exhibit 022-23
Governor and the Attorney General did. That's why.
Nothing excused the Attorney General from client privilege
because the media had a story.
43. On April 7, 2010, at approximately 12:35 pm, Appellant, on his campaign letterhead,
issued a press release entitled "HAFTER RESPONDS TO ALLEGATIONS MASTO
VIOLATES A TIORNEY ETHICS RULES" ("Press Release"). JLH Exhibits 025.
44. The Press Release stated:
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LAS VBGAB, Nevada - An exchange of letters between Governor Jim
Gibbons and Attorney General Catherine Mastoregarding the State's
participation in a legal challenge to Obamacare has become public,
The problem, however, is that the Governor's office did not
authorize the release of the March 30, 2010 letter written by Ms.
Mastol rather, Ms. Masto took it on her own accord to send a copy
of the letter to multiple media outlets in addition to Governor
Gibbons. This has been confirmed by the Governor and his staff
over the past 24 hours in various media outlets.
AS the attorney to the State of Nevada, Ms. Masto, however, is
bound by the Rules of Professional Conduct. Rule L 6 prevents the
unauthorized release of attorney-client information by an
attorney. Such release of any attorney-client information may
only be consented to by the client. The release of the March 30,
2010 letter may have been an unauthorized release of confidential
information in violation of Rule 1.6.
"Ms. Masto, as the State's head counsel must not only represent
the State of Nevada, but do so in such a manner that complies with
the Rules of Professional Conduct," stated Jacob Hafter, Esq.,
attorney and Republican candidate for Attorney General.
"Regardless of whether this specific issue has become a public
issue, such publicity is only authorized by the Governor, Ms.
Masto's client. An attorney may never release any work product to
the press unless that attorney has the express consent of her
client. Her blatant disregard for her professional duties to the
State is yet another example of why she must be replaced in
November,ff continued Mr. Hafter.
Mr. Hafter, who also sits on the Southern Nevada Disciplinary
Board for the State Bar, was made aware of this issue on Friday,
April 2, 2010. Pursuant to Rule 8.3, where a "lawyer who knows
that another lawyer has committed a violation of the Rules of
Professional Conduct" has a duty to report such misconduct, Mr.
Hafter called the Bar and confirmed that a report of Ms. Masto's
violation was made to the State Bar. "The State Bar has a duty to
investigate all complaints made to it regarding conduct of lawyers
and to take appropriate action," stated Mr. Hafter. "I am
confident in the professionalism of the Bar, their counsel and
their ability to investigate this matter and take appropriate
action."
JLH Exhibits 025.
45. On April 7,2010, at approximately 3 pm, Appellant participated in a teleconference
hosted by the Nevada News Bureau regarding Obamacare and Nevada's decision to litigate
against it.
46. On that teleconference, Appellant repeated the contents of the Press Release.
47. On April 8,2010, Elizabeth Crum wrote a news article regarding the discussion held on
the teleconference.
48. In her article, she stated in part:
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Hafter said he believes the Attorney General has been in
her duties
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and that her refusal to cooperate with the Executive
Branch has created a liability that may be punishable as a
misdemeanor under state law.
Hafter also said he today received confirmation from a reliable
source inside the Nevada State Bar that a formal ethics complaint
has been filed against the Attorney General for violations of
attorney-client privilege when she disclosed certain pieces of
information in her publicized response and explanation letters to
Governor Gibbons.
49. On April 13, 2010, at around 10:30 am, Benjamin Spillman, a reporter for the Las
Vegas Review Journal, called Mr. Hafter at his office.
50. During that call, Mr. Spillman infonned Mr. Hafter that Phil Pattee, Esq., assistant bar
counsel for the State Bar of Nevada, stated that not only is the Bar not investigating Masto for
the allegations of misconduct, but that "an investigation and a grievance file has been opened
in relation to Mr. Hafter himself."
51. It is believed that Mr. Pattee's statements were unsolicited.
52. The fact that Mr. Pattee leaked the existence of the grievance against Mr. Hafter was a
blatant violation of the Supreme Court Rules.
53. On April 13, 2010, David Clark, Esq., Deputy Bar Counsel, signed a letter to Mr.
Hafter infonning him of numerous concerns of professional misconduct which gave rise to the
opening of Grievance File No. NIO-I8-1227.
54. All of the concerns of professional misconduct stem from the Press Release and the
comments which Mr. Hafter made to Ms. Crum.
55. The April 13,2010 investigatory letter requested a response from Mr. Hafter within ten
(10) days.
56. Mr. Hafter responded in writing on April 14, 2010.
57. On May 27, 2010, a screening panel decided to issue a fonnal letter of reprimand
against Mr. Hafter as a result of the allegations made in the grievance.
58. Mr. Hafter has 14 days to object or accept the letter of reprimand.
59. On July 26,2010, the Bar filed its Complaint in this matter.
60. On July 26,2010, Appellant filed his Answer.
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IV. STANDARD OF REVIEW
Supreme Court Rule t 05(3) states:
(b) De novo review of public discipline. Except for disbarments
by consent pursuant to Rule 112 or a public reprimand agreed to in
writing by the attorney pursuant to Rule 113, a decision
recommending a public reprimand, suspension or disbarment shall
be automatically reviewed by the supreme court. Review under
this paragraph shall be commenced by bar counsel forwardingthe
record of the hearing panel proceedings to the court within 30 days
of entry of the decision. Receipt of the record in such cases shall be
acknowledged in writing by the clerk of the supreme court.
The attorney and bar counsel shall have 30 days from the date the
supreme court acknowledges receipt of the record within which to
file an opening brief or otherwise advise the court of any intent to
contest the hearing panel's findings and recommendations. If an
opening brief is filed, briefing shall thereafter proceed in
accordance with NRAP 31 (a). Extensions of time to file briefs are
disfavored and will only be granted upon a showing of good cause.
The parties shall not be required to prepare an appendix, but rather
shall cite to the record of the disciplinary proceedings. If no
opening brief is filed, the matter will be submitted for decision on
the record without briefing or oral argument.
V. SUMMARY OF ARGUMENT
Mr. Hafter, as a political candidate, issued a press release responding to allegations
made by the Governor's office that his opponent, the incumbent Attorney General, had
violated attorney-client privilege when her office released various letters she wrote to the
Governor to the press. As the Attorney General is an attorney, and the violation of the
attorney-client privilege falls within the purview of the State Bar of Nevada, Mr. Hafter
addressed both issues in his press release.
David Clark, Esq., a Democrat, rather than fully investigating the matter (including
calling the Governor's office to verify that they had, indeed, made such allegations against
Ms. Masto), or investigating the conduct of Ms. Masto, placed Mr. Hafter in sights and went
gunning for him. With no other evidence but his limited knowledge and opinions, Mr. Clark
took the matter to a screening panel, ex parte, and obtained a public sanction against Mr.
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1 Hafter. Mr. Hafter refused to accept the public sanction and demanded a fonnal hearing
2 pursuant to Supreme Court Rule 105.
3 Accordingly, Mr. Clark drafted and filed a fonnal disciplinary complaint against Mr.
4 Hafter. In the Complaint, Mr. Clark alleged that Mr. Hafter ''violated Rule of Professional
5 Conduct (RPC) (S.l) (Bar Admission and Disciplinary Matters) for knowingly making a false
6 statement of material fact in connection with a discipline matter and RPC S.4( c, d) for conduct
7 involving deceit and dishonesty and conduct prejudicial to the administration of justice."
8 At the Fonnal Hearing, the State Bar's case consisted solely of the testimony of Mr.
9 Clark. In that testimony, Mr. Clark admitted that there were no on-going disciplinary matters
10 at the time of Mr. Hafter's statements. Moreover, Mr. Clark could not cite one instance as to
11 how Mr. Hafter's conduct was prejudicial to the administration of justice. Worse, the panel
12 engaged in activities through conduct of the hearing, such as the imposition of arbitrary time
13 restraints and the constant interruptions of testimony, which made it difficult, at best, for Mr.
14 Hafter to defend himself. Ultimately, the panel found that Mr. Hafter was guilty of the
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allegations made against him, however, in doing so, they changed the standards for what the
Rules of Professional Conduct require.
Accordingly, the Bar failed to prove the allegations made against Respondent.
However, notwithstanding, even if they could have proven such,Mr. Hafter's actions were
protected under the First Amendment of the United States Constitution.
VI. ARGUMENT
A. ASSUMING THAT THE ALLEGATIONS IN THE COMPLAINT ARE TRUE, THE
FIRST AMENDMENT PROTECTS APPELLANT'S ACTIONS
1. The First Amendment Protects Appellant's Actions In this Case.
The First Amendment provides that "Congress shall make no law... abridging the
freedom of speech." U.S. Const.. amend. I. Within the protections of the First Amendment,
political speech has been deemed a priority. Citizens United v, Federal Election Com'n, 130
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1 S,Ct. 876 (2010). "Because speech is an essential mechanism of democracy-it is the means to
2 hold officials accountable to the people-political speech must prevail against laws that would
3 suppress it by design or inadvertence," Id at 886. ''The First Amendment requires us to err on
4 the side of protecting political speech rather than suppressing it." Federal Election Com'D v,
5 Wisconsin Right To Life, Inc., 551 U.S. 449, 457, 127 S,Ct. 2652, 2659(2007) ("WRTL").
6 ''The candidate, no less than any other person, has a First Amendment right to engage in the
7 discussion of public issues and vigorously and tirelessly to advocate his own election and the
8 election of other candidates." Brown v. Hartlage, 456 U.S. 45, 53, 1853 WL 7634 (1982)
9 "Political speech must prevail against laws that would suppress it, whether by design or
10 inadvertence." Citizens United, 130 S.Ct. at 898.
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The majority of circuit courts of appeals have indicated that a political campaign in
and of itself qualifies as a communicative act protected by the First Amendment. See
Wiggins v, Lowndes County. Miss., 363 F.3d 387, 390 (5th Cir.2004) ("Political speech
regarding a public election lies at the core of matters of public concern protected by the First
Amendment.") (citation omitted); Finkelstein v.Bergna, 924 F.2d 1449, 1453 (9th Cir.1991)
("Disciplinary action discouraging a candidate's bid for elective office represent[s]
punishment by the state based on the content of a communicative act protected by the [Flirst
[A]mendment.") (internal quotation marks and citation omitted); Washington v. Finlay, 664
F.2d 913, 927-28 (4th Cir.1981); see also Wheeler v. Twp. of Edison, 326 Fed. Appx. 118,
121 (3d Cir.2009) (unpublished opinion) (noting that plaintiirs support of a candidate in an
election constituted "constitutionally protected conduct"); Galli v. New Jersey Meadowlands
Comm'n, 490 F.3d 265, 272-73 (3d Cir.2007) (noting that choice to engage in political
activity is entitled to First Amendment protection). The only circuit to reach a slightly more
limited conclusion is the Sixth Circuit, which has recognized that "while the mere fact of
candidacy [is] not constitutionally protected, the expression of one's political belief still [fal1s]
under the ambit of the First Amendment." Murphy v. Cockrell, 505 F.3d 446, 45l (6th
Cir.2OO7) (citing Carver v, Dennis, 104 F.3d 847 (6th Cir.1997.
1 Within political speech, certain acts are deemed core political speech and are afforded
2 the utmost of protection. Buckley v. American Constitutional Law Foundation. Inc., 525 U.S.
3 182, 186, 119 S.Ct. 636 (1999). Core political speech involves "interactive communication
4 concerning 186 486uU.S, 414;422;108
5 S.Ct. 1886 (1988. A press release by a political candidate has been deemed "core political
6 speech." Simpson Strong-Tie Company, Inc. v. Gore, -- Cal.Rptr.3d -,2010 WL 1948283
7 14 (Cal.,2010). Political speech is "entitled to the fullest possible measure of constitutional
8 protection." Members of the City Council of the City of Los Angeles v. Taxpayers for
9 Vincent, 466 U.S. 789, 816, 104 S.Ct. 2118 (1984). The Ninth Circuit has already held that
10 disciplinary actions related to a candidate's bid for elective office represents punishment by
11 the state based on the content of a communicative act protected by the First Amendment.
12 Finkelstein v. Bergna. 924 F.2d 1449, 1453 (9th Cir.l991).
13 Mr. Hafter's campaign issued a press release responding to allegations made by the
14 Governor's office related to her violations of the attorney-client privilege where he said that
15 such conduct was a prime example of why she "must be replaced in November." (JLH Exhibits
16 025). In doing so, Mr. Hafter was addressing his political beliefs regarding the incumbent
17 whom he is challenging. Mr. Hafter drew absolutely no conclusions in the press release
18 regarding the Bar's disciplinary process, nor did he intend to. M. Mr. Hafter was criticizing
19 the incumbent and her blatant disregard of her profeSSional obligations as theState's attorney-
20 a key issue in his campaign for Attorney General. It is this press release which is the
21 foundation of the instant action.'
22 Moreover, Mr. Hafter was responding to allegations made in the political arena as a
23 political candidate. The Bar seems relentless at spinning this issue to their favor. In fact, the
24 Panel's Findings stated that "[t]he title of the April 7, 2010 press release "HAFTER
25 RESPONDS TO ALLEGATIONS MASTO VIOLATES ATTORNEY ETHICS RULES""
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1
Complainant also relies upon comments attributed to Appellant in a
news article posted on the web as another basis for the Complaint. Complaint
at 18. However, Appellant cannot be held liable for comments which were
simply attributed to him in the press but not directly quoted. Hence,
Appellant focuses on the press release as the basis for this instant action.
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1 intended to mislead people to have false beliefs as to the what the Bar has done; nothing could
2 be further from the truth. When looking at whether one made a material misstatement and
3 one's intent to do so, one must look towards one's state of mind, not the effect on the reader.
4 Mr. Hafter provided excessive evidence at the hearing to show that the allegations that
5 were being made were being made in the political arena by the Governor's office. He
6 provided evidence from the Governor's chief of staff, deputy chief of staff and lawyer who all
7 testified that well before Mr. Hafter's press release, they were in the press making these
8 allegations. Mr. Hafter even played a copy of a televised interview of such. Notwithstanding,
9 in a self-serving decision, the "panel gave little or no weight to the testimony of these
10 witnesses because their testimony had virtually no probative value on the relevant issues in this
11 matter." Such is an egregious abuse of the panel's discretion. Whether there were pre-existing
12 allegations that Ms. Masto violated attorney ethics rules is exactly the issue, as such was why
13 Mr. Hafter issued the press release!
14 Accordingly, as it was political speech which gave rise to the instant Complaint, such
15 speech, is protected under the First Amendment.
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2. None of the Express Limitations on First Amendment Protections
Apply in this Case .
Appellant recognizes that the protections granted by the First Amendment are not
absolute. See. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766,
(1942). The limits of the First Amendment, however, are generally based upon the content of
the speech. It has long been recognized that the content of certain categories of expression-
though they may fall under the common understanding of "speech" - places them outside the
protection of the First Amendment. United ,States v. Stevens, -- U.S. ---, 130 S.Ct. 1577,
2010 WL 1540082 at 5 (20 10) ("From 1791 to the present ... the First Amendment has
permitted restrictions upon the content of speech in a few limited areas, and has never
included a freedom to disregard these traditional limitations.") (internal quotations omitted).
Thus, the First Amendment does not apply to obscene speech. Roth v. United States, 354 U.S.
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476,483, 77 S.Ct. 1304 (1957); also Miller v. California, 413 U.S. 15,24,93 S.Ct. 2607
(1973) (defining "obscenity" as speech that (I) depicts sexual conduct in a patently offensive
way, (2) lacks serious literary, artistic, political, or scientific value, and (3) would be deemed
as appealing primarily to prurient interests by an average person applying contemporary
community standards.). Nor does it protect utterances that infringe on the legal rights of
others, such as defamation, Beauharnais v. Illinois, 343 U.s. 250, 254-55, 72 S.Ct. 725
(1952),fraudulent representations, Va. Bd. of Pharmacy v. Va. Citizens Consumer CQuncil.
Inc., 425 U.S. 748, 771, 96 S.Ct. 1817 (1976), incitement to violence, Brandenburg v. Ohio,
395 U.S. 444, 447-49, 89 S.Ct. 1827 (1969), or speech integral to criminal conduct, Giboney
v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684 (1949).
The Complaint, however, does not allege that Appellant's speech was obscene,
defamatory, fraudulent, inciting of violence or integral to criminal conduct. Complaint.
Accordingly, the First Amendment protections survive Appellant's speech, even assuming the
Complainant's allegations are true. As such, Appellant's actions in this matter are protected
by the First Amendment requiring the Board to dismiss the Complaint.
3. The Bar's Duty to Regulate the Profession Does Not Trump Political
Speech.
Appellant recognizes that the Complainant may argue that notwithstanding the First
Amendment, the Bar's obligation to maintain the integrity of the profession allows them to
police even protected political speech. Appellant respectfully requests that this Board does
not allow such an argument to survive.
Under such an argument, the only way which the Bar could justify such power is that
the Rules of Professional Conduct are content-neutral limitations. Content-neutral limitations
on the time, place, and manner in which an individual may engage in expressive conduct are
analyzed under a separate test. See. e.g . Thomas v. Chicago Park Dist., 534 U.S. 316,323-23,
122 S.Ct. 775 (2002); Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746
(1989); Clark v, Cmty. for Creative Non-Violence, 468 U,S. 288, 293, 104 S.Ct. 3065 (1984).

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Such restrictions "are valid provided that they are justified without reference to the content of
the regulated speech, that they are narrowly tailored to serve a significant governmental
interest, and that they leave open ample alternative channels for communication of the
infonnation." Clark, 468 U.S. at 293. Clearly, the Rules of Professional Responsibility were
written and promulgated to be without reference to the content of the regulated speech.
Laws that burden political speech are "subject to strict scrutiny," which requires the
government to prove that the restriction "furthers a compelling interest and is narrowly
tailored to achieve that interest." WRTL, 551 U.S., at 464; !!lQ, Cornelius v. NAACP
Legal Defense & Ed. Fund. Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, (1985); U.S. v. Playboy
Entm't Group. Inc., 529 U.S. 803, 816, 120 S.Ct. 1878 (2000).
While the Rules of Professional Conduct may not be intended to regulate speech and
may be narrowly tailored to serve a significant governmental interest, it does not allow ample
alternative channels for political communication; hence, it fails the Thomas test. This instant
case is the quintessential example of the failure of this test. In Nevada, like in many states,
we elect our State counsel. The elected counsel, the Attorney General, is required to follow
the Rules of Professional Responsibility. Generally, a political challenger will seek to
demonstrate weaknesses in the incumbent's perfonnance, including, in the case of Attorney
General, the incumbent's perfonnance when it comes to her adherence to the Rules of
Professional Responsibility. In such cases, a political challenger (who is usually an attorney
and subject to regulation by the Bar) will, inevitably, comment on his interpretation of the
incumbent's compliance with the Rules of Professional Responsibility as part of his
campaign. When such occurs, a severe collision between core political speech and the State's
interest in regulating the Bar occurs. Unfortunately, the collision may not even be apparent
until after the impact has occurred and time passes. While the speaker may think, and, more
importantly, intend, that such criticisms are political speech, the Bar may find such to fall
under their purview (as they have in the instant action) and initiate a disciplinary action.
When this occurs there are no other venues for the political candidate who is also an attorney

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1 to raise such criticisms of the incumbent. As such, the Rules of Professional Conduct fail as
2 content-neutral limitations on speech.
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In this case, the Bar seeks to inoculate their actions based upon the compelling state
interest of governing attorney conduct. While such is an interesting argument, it, too, is
flawed. Minnesota tried this tactic and failed. In Re,publican Party of Minnesota v. White,
536 U.S. 765, 793, 122 S.Ct. 2528, 2544 (2002), Minnesota's "Lawyer's Board" was given
the charge of sanctioning attorney candidates for statements they said as part of their
campaigns based on a concern that it would have an adverse effect on their ability to practice
as an attorney. Minnesota sought to justify its speech restriction as one necessary to maintain
the integrity of its jUdiciary. As Justice Kennedy stated in his concurring opinion, "[t]he
political speech of candidates is at the heart of the First Amendment, and direct restrictions on
the content of candidate speech are simply beyond the power of government to impose." hi.
The Supreme Court "has frequently reaffirmed that speech on public issues occupies
the 'highest rung of the hierarchy of First Amendment values,' and is entitled to special
protection." NAACP v. Claiborne Hardware Co., U.S. 886,913, 102 S.Ct. 3409 (1982).
In fact, as Justice Kennedy stated in his dissent in Hill v. Colorado, 530 U.S. 703, 787, 120
S.Ct. 2480 (2000), "[l]aws punishing speech which protests the lawfulness or morality of the
government's own policy are the essence of the tyrannical power the First Amendment guards
against." (emphasis added). Moreover, as the Supreme Court stated in Citizens, "[i]fthe First
Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations
of citizens, for simply engaging in political speech." What the Bar is seeking to do in this
case - namely, sanction Respondent for releasing a press release from his political campaign -
is no different than what the Supreme Court has stated the First Amendment is intended to
prevent. There is no question as to why the Bar's position in this case was to simply deny that
the Respondent's press release issued by his political campaign was not political speech -
because if they had, they would have no defense for their outrageous conduct in this matter.
While the Bar may have a compelling state interest in regulating attorneys, such regulation
cannot impede on an attorney's right to engage in political speech, especially when one is a
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1 candidate for political office; such sanctions are nothing more than violative of the First
2 Amendment.
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B. A PRIMA FACIA ELEMENT FOR PROVING A VIOLATION OF RULE OF
PROFESSIONAL CONDUCT (-RPC18.1IS A SHOWING THAT THERE WAS AN
ON-GOING DISCIPLINARY ACTION
RPC 8.1 states:
An applicant for admission to the bar, or a lawyer in. connection
with a bar admission application or in connection with a
disciplinary matter, shall not:
(a) Knowingly make a false statement of material fact; or
(b) Fail to disclose a fact necessary to correct a misapprehension
known by the person to have arisen in the matter, or knowingly fail
to respond to a lawful demand for infonnation from an admissions
or disciplinary authority, except that this Rule does not require
disclosure of infonnation otherwise protected by Rule 1.6.
(emphasis added).
This rule is compared to the American Bar Association's Model Rule 8.1. This Rule is
intended to ensure that people are honest with their bar applications and with investigations
before the Bar. It does not give jurisdiction to the Bar to investigate any statement which an
attorney makes against another attorney's actions of behavior. The Bar has extrapolated this
Rule to extend far beyond the intended purpose.
C. THE BAR FAILED TO DEMONSTRATE A PRIMA FACIA ELEMENT FOR PROVING
A VIOLATION OF RPC 8.1, AS THERE WAS NO ON-GOING DISCIPLINARY
ACTION
The fact is that by Mr. Clark's own admission, there were no disciplinary actions
pended related to Ms. Masto at the time that the Press Release was issued. See David Clark's
sworn testimony. Pages 154-56. Accordingly. even if the statements were false, they did not
relate to a disciplinary matter. Hence, RPC 8.1 should not apply to this case.
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1 Second, the statements subject to discipline must be false with respect to a material
2 fact. If there were no pending disciplinary proceedings, then any false statements made could
3 not be material. In other words, to what was it material, if there were no disciplinary
4 proceedings?2 Ultimately, it is not clear what the Bar is saying is the false material fact. Was
5 it that there were no third party complaints pending? Mr. Hafter never alleged such. He
6 simply "called to confirm that a report had been made." Such was the understanding between
7 Mr. Hafter and Ms. Fralick (to which she testified) when they ended their call prior to Mr.
8 Hafter's call to the Bar. Accordingly, from Mr. Hafter's perspective (the important
9 perspective for proving a knowingly false statement), Mr. Hafter, did not know that he was
10 making a materially false statement.
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D. A PRIMA FACIA ELEMENT FOR PROVING A VIOLATION OF RPC 8.4(d) IS THAT
THERE BE A SHOWING OF PREJUDICE TO THE ADMINISTRATION OF JUSTICE
RPC 8.4 states, in part:
It is professional misconduct for a lawyer to:
(c) Engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
(d) Engage in conduct that is prejudicial to the administration of
justice;
This rule is compared to the American Bar 'Association's Model Rule 8.1. The second
comment by the ABA is instructive. It states:
[2] Many kinds of illegal conduct reflect adversely on fitness to
practice law, such as offenses involving fraud and the offense of
willful failure to file an income tax return. However, some kinds of
offenses carry no such implication. Traditionally, the distinction
2
The Bar's logic is severely flawed. Under their logic, as Mr. Hafter
reaffirmed his position in this matter at the hearing on November 30, 2010,
and the Panel did not find genuine, should the Bar file a new complaint
alleging a violation of RPC 8.1 with respect to the disciplinary hearing
which occurred? Moreover, why isn't the Bar filing a complaint against Mr.
Clark for his lies and double-talk during his testimony?
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was drawn in terms of offenses involving "moral turpitude." That
concept can be construed to include offenses concerning some
matters of personal morality, such as adultery and comparable
offenses, that have no specific connection to fitness for the practice
of law. Although a lawyer is personally answerable to the entire
criminal law, a lawyer should be professionally answerable only
for offenses that indicate lack of those characteristics relevant to
law practice. Offenses involving violence, dishonesty, breach of
trust, or serious interference with the administration of justice are
in that category. A pattern of repeated offenses, even ones of minor
significance when considered separately, can indicate indifference
to legal obligation.
E. THE BAR FAILED TO DEMONSTRATE A PRIMA FACIA ELEMENT FOR PROVING
A VIOLATION OF RPC 8.4{d), AS THERE WAS NO EVIDENCE THAT THE
ADMINISTRATION OF JUSTICE WAS PREJUDICED BY APPELLANT'S ACTIONS
This case is based upon an isolated incident that occurred in the course of Mr. Hafter's
campaign for Attorney General. Mr. Clark did not suggest that any administration of justice
was prejudiced by Mr. Hafter's comments. Moreover, he certainly did not show a pattern of
moral turpitude for Mr. Hafter. It is clear by reading the cross examination of Mr. Clark that
he used his own personal bias and beliefs to substantiate actions that he wanted to take against
Mr. Hafter. There was not one other piece of evidence provided at the hearing to suggest that
any administration of justice was prejudiced by Mr. Hafter's comments. Accordingly, the
Panel erred in making a finding that Mr. Hafter violated this rule.
F. THE HEARING PANEL VIOLATED APPELLANT'S DUE PROCESS RIGHTS
While the Formal Hearing was intended to be an adversarial proceeding, Mr. Hafter
should not have felt that he was adverse to the Hearing Panel. However, the Panel was
anything but a neutral party in the manner in which they conducted the Formal Hearing. The
most egregious act was their modification of the charges which Mr. Hafter was facing, a
blatant violation of Mr. Hafter's due process rights. The Panel's actions were further in
appropriate by their harassing behavior throughout Mr. Hafter's presentation of his defense.
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1. The Panel altered the charges which were being made against
Appellant In their Decision.
Throughout this process, a major concern of Mr. Hafter was the lack of clarity on the
charges and the standards for which such charges would be proven. Mr. Hafter urges this
Court to review the correspondence as well as the testimony of the hearing with great detail,
specifically with respect to his requests for clarity as to the nature of the charges made against
him.
For example, at some points during the process, it was suggested that the comments
made by Mr. Hafter during the press conference were considered as a contributing factor in
pursuing discipline against Mr. Hafter. When confronted, however, about the lack of any
evidence or testimony as to what comments were actually made, such allegations were
dismissed (only to be brought back into the spotlight once Mr. Hafter's questioning as to their
legitimacy died down).
Ultimately, this became a true issue, as the Panel found that Mr. Hafter violated only
part of the Rules of Professional Conduct. Compare the actual language of the Rules of
Professional Conduct which Mr. Hafter was accused of violating with the language of the
Findings of Fact issued by the Panel; they clearly do not reflect the same standards. This is
because, as Mr. Hafter pointed out when the Bar rested its case, there was not clear and
convincing evidence of anyon-going disciplinary action at the time Mr. Hafter engaged in the
behavior he was alleged to have done; accordingly, there could be no violation of RPC 8.1
under the language of the Rule. Similarly, there was no clear and convincing evidence of any
interference with the administration of justice, and yet the Panel manipUlated the Rule to
substantiate a finding of misconduct.
The language of the Rules of Professional Conduct is not up for interpretation by a
disciplinary panel; rather, such is within the purview of this Court. As such, the Panel
overstepped its authority and erred in recommending discipline in this matter.
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2. The Panel, through the Panel Chair, engaged In harassing actions
against Appellant which Interfered with and frustrated his ability to
defend himself.
At numerous times throughout the hearing, the hearing panel chair was argumentative,
limiting and obstructive to Mr. Hafter. It was clear that he had a pre-determined objective not
to be open minded to Mr. Hafter's evidence and to make his defense as difficult as possible.
While there are many examples, one primary example was the imposition of a
unilateral time limit for the presentation of the case. Worse, Mr. Moore would interrupt Mr.
Hafter to remind him how much time he had remaining under this self imposed time limit.
Another example is how Mr. Moore stopped the testimony of Ms. Reedy because he
did not feel it to be material to the issue at hand. However, Ms. Reedy was testifying as to the
anegations that her office, the Governor's office was making - the same allegations to which
Mr. Hafter was responding in his fateful press release.
At the sake of ensuring brevity, Mr. Hafter will rely upon this Court's de novo review
to identify any further examples of such behavior.
VII. CONCLUSION
Mr. Hafter engaged in a political campaign. Politics is politics. Law is law. The Bar
has interefered in an area it just does not belong. While Mr. Clark, the driving force of the
disciplinary charges in this matter, may not like Mr. Hafter, or endorsed his campaign, to
transform a campaign press release from a political issue into a sanctionable action is simply
wrong. As a result, Mr. Hafter has had to spend excessive resources fighting this frivolous
action. Moreover, his professional reputation has been tarnished. Worse, the person who
actually engaged in violations ofthe Rule of Professional Conduct, Ms. Masto, has been
vindicated, and, in the process, Mr. Pattee has been allowed to engage in additional violations
of the Supreme Court Rules by leaking information of this action to the Las Vegas Review
Journal. Ifthere were ever a scenario where Supreme Court intervention was this is
it.

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Accordingly, as the Bar has failed to meet its burden by clear and convincing evidence
that Mr. Hafter violated the various Rules of Professional Conduct alleged by Mr. Clark, Mr.
Hafter respectfully requests that this Court refuse to accept the recommendations of the
Hearing Panel and dismiss any pending disciplinary charges against Mr. Hafter without any
further action.
Dated this 4th day of February, 2011.
LAW OFFICE OF JACOB HAFTER & ASSOCIATES.
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1 CERTIFICATE OF SERVICE
2 Pursuant to Nev.R.App.P. 25, the undersigned hereby certified that on the 4th day of
3 February, 2011, a true and correct copy of the foregoing APPELLANT's OPENING BRIEF
4 was served on the following party via U.S. Mail:
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LUCINDA COUMO, ESQ.
Chief Deputy District Attorney
500 S. Grand Central Pkwy
P.O. Box 552215
Las Vegas, Nevada 89155
lucinda.coumou@ccdanv.com
Special Counsel for State Bar of Nevada
CHRISTIAN MOORE, ESQ.
Hearing Panel Chairman
Lemons, Grundy & Eisenberg
6005 Plumas Street, Suite 300
Reno, Nevada 89509
An EmpJoyeeofLaw Offices of Jacob Hafter &
Associates

8 29 13 553 Doc 51 Hafter v. SBN

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1 Rew R. Goodenow, Bar No. 3722

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