1 Case No: SBN21-99233 FILED

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Jul 15, 2022
3
STATE BAR OF NEVADA
4
BY: ___________________
OFFICE OF BAR COUNSEL
5

7 STATE BAR OF NEVADA

8 SOUTHERN NEVADA DISCIPLINARY BOARD

9
STATE BAR OF NEVADA, )
10 )
Complainant, )
11 vs. )
) COMPLAINT
12 OSVALDO E. FUMO, ESQ., )
BAR NO. 5956 )
13 )
Respondent. )
14

15
TO: OSVALDO E. FUMO, Esq.
c/o Dominic P. Gentile, Esq.
16
3800 Howard Hughes Pkwy., Suite 500
17 Las Vegas, NV 89169
dgentile@clarkhill.com
18

19 PLEASE TAKE NOTICE that pursuant to Supreme Court Rule (“SCR”) 105(2) a

20 VERIFIED RESPONSE OR ANSWER to this Complaint must be filed with the Office of Bar

21 Counsel, State Bar of Nevada, 3100 West Charleston Blvd., Suite 100, within twenty (20) days

22 of service of this Complaint. Procedure regarding service is addressed in SCR 109.

23 Complainant, State Bar of Nevada (“State Bar”), by and through its Bar Counsel, Daniel

24 Hooge, is informed and believes as follows:

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 1 1. Attorney Osvaldo E. Fumo, Esq. (“Respondent”), Bar No. 5956, is currently an

2 active member of the State Bar of Nevada and at all times pertinent to this complaint had his

3 principal place of business for the practice of law located in Las Vegas, Nevada.

4 2. On October 13, 2021, Fumo sat on a Criminal Defense Panel hosted by UNLV’s

5 Black Law Students Association (BLSA). The other three panel members were public

6 defenders.

7 3. When asked about their mentors, two panelists identified their former co-worker

8 Judge Erika Ballou as their mentor. Fumo, who already identified Tom Pitaro and Bill Terry

9 as his mentors, jumped in to give the following statement about Ballou:

10 To add a little bit about Erika, look, if you aren’t aware, she had the
intestinal fortitude when cops were able to wear Blue Lives Matter,
11 she had the guts to put on a Black Lives Matter, walk into a courtroom
of someone who I consider a white supremist who is now on the
12 Nevada Supreme Court, but he kicked her out of his courtroom for
wearing that pin. Now, what other attorney had the balls to do that
13 but her? So that’s the kind of people you admire and aspire to be like,
someone who doesn’t want to take no for an answer and to do the
14 things that are right.

15 4. Fumo did not identify Justice Douglas Herndon by name; however, Fumo’s

16 “white supremacist” allegation clearly referred to Herndon.

17 5. On September 20, 2016, then deputy public defender Erika Ballou appeared in

18 court for the sentencing of her client before then District Court Judge Herndon. Ballou wore a

19 Black Lives Matter pin. Judge Herndon asked Ballou to remove the pin as political speech.

20 Ballou refused to remove the pin arguing it was not political speech. Judge Herndon continued

21 the matter to Thursday September 22, 2016, to further consider the matter.

22 6. The Las Vegas Review Journal (LVRJ) also wrote several articles about the

23 September 20, 2016 incident.

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 1 7. At the return hearing on September 22nd, Judge Herndon allowed Ballou and

2 her supporters to wear the BLM pins in court to discuss the matter. Judge Herndon explained

3 his prior actions and reiterated why he felt the pins were political speech inappropriate for the

4 courtroom. Judge Herndon ordered a second recess to discuss the matter, but Ballou told him

5 it was not necessary. She removed her button and the parties proceeded with sentencing.

6 8. Judge Herndon never “kicked [Ballou] out of his courtroom” for wearing the

7 Black Lives Matter pin.

8 9. After the Ballou incident and prior to the BLSA event, Fumo ran for Supreme

9 Court Justice in the 2020 election. Fumo, an attorney, State Assemblyman, and adjunct UNLV

10 law professor, ran against Clark County District Court Judge Douglas Herndon.

11 10. The race was contentious.

12 11. Herndon won the election and is now sitting on the Supreme Court.

13 12. A month after the BLSA event, on November 20, 2021, the LVRJ published an

14 article about Fumo’s “white supremist” comment. The LVRJ gave Fumo an opportunity to

15 retract or clarify his comment. Fumo stated, “if it walks like a duck and quacks like a duck.”

16 Fumo also stated that Herndon’s actions are of “someone who has a problem with people of

17 color.”

18 13. A white supremacist is a person who believes that white people constitute a

19 superior race and should therefore dominate society, typically to the exclusion or detriment of

20 other racial and ethnic groups, in particular black or Jewish people.

21 14. Justice Herndon does not believe that white people constitute a superior race or

22 should dominate society.

23 15. Justice Herndon is not a white supremacist.

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 1 16. Herndon stated to the LVRJ that he “think(s) it’s incredibly offensive and

2 arguably defamatory to say something like that, which is obviously not true and has no basis

3 of fact.”

4 17. SOLE COUNT—RPC 8.2(a) (Judicial and Legal Officials)

5 18. RPC 8.2(a) states,

6 A lawyer shall not make a statement that the lawyer knows to be

false or with reckless disregard as to its truth or falsity
7 concerning the qualifications or integrity of a judge, adjudicatory
officer or public legal officer, or of a candidate for election or
8 appointment to judicial or legal office.

9 19. Fumo stated that Justice Herndon was a “white supremacist” and “kicked

10 [Ballou] out of his courtroom for wearing [a Black Lives Matter] pin” knowing it was false or

11 with reckless disregard as to its falsity.

12 20. Fumo’s statement concerned Justice Herndon’s qualifications and integrity as a

13 Justice of the Supreme Court.

14 21. Fumo acted knowingly. His statement was neither a mistake nor an accident.

15 22. Fumo caused injury or potential injury to the legal system. African Americans

16 may unfairly distrust the legal system in Nevada and Herndon because of Fumo’s false

17 statement.

18 23. In light of the foregoing, including without limitation paragraphs 2 through 18,

19 Respondent has violated RPC 8.2(a) (Judicial and Legal Officials).

20

21 WHEREFORE, Complainant prays as follows:

22 1. That a hearing be held pursuant to Nevada Supreme Court Rule 105;

23 2. That Respondent be assessed the costs of the disciplinary proceeding pursuant

24 to SCR 120; and

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 1 3. That pursuant to SCR 102, such disciplinary action be taken by the Southern

2 Nevada Disciplinary Board against Respondent as may be deemed appropriate under the

3 circumstances.

4 Dated this _______ day of July 2022.

5 STATE BAR OF NEVADA

DANIEL M. HOOGE, Bar Counsel
6

8 By: __________________________________
Danie M. Hooge, Bar Counsel
9 Nevada Bar No. 10620
3100 West Charleston Blvd., Suite 100
10 Las Vegas, NV 89102
(702) 382-2200
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