11 20 08 Doc 20 With Exhibits Mirch Post Hearing Brief 08-80074 69 Pages Total Ocr

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
MIRCH LAW OFFICES
Kevin J. Mirch
CA SBN 106473
Marie C. Mirch
CA SBN 200833, NV SBN 6747
1133 Columbia Street, Suite 106
San Diego, CA 92101
(619) 501-6220
Respondent In Pro Per
Counsel for Respondent
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 08-80074
POST -HEARING BRIEF
Respondent, Kevin J. Mirch, in pro per and through his attorney, Marie Mirch, hereby
submits this supplemental brief in support of his position that the order of disbarment issued by the
State of Nevada violated his due process rights, and should not subject him to disbarment or
suspension from the Ninth Circuit Court of Appeals. This memorandum is submitted pursuant to
the Order of this Court dated October 14, 2008, requesting further briefing on a number of specific
issues.
ISSUE # 1. Legal authority that State Bar has a duty to investigate
The Nevada Supreme Court Rules (SCR) dictate the State Bars duty to investigate a
grievance:
Rule 104. State bar counsel.
1. State bar counsel shall:
(a) Investigate all matters involving possible attorney misconduct or incapacity
In re:
KEVIN JOHN MIRCH, Esq., Admitted to
the bar of the Ninth Circuit: February 16,
1988,
Respondent.
Case: 08-80074 11/20/2008 ID: 6714572 DktEntry: 20-1 Page: 1 of 13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The Nevada State Bar should have its files regarding any investigation that was done on
1
this grievance, information which Respondent is not privy to.
2
called to bar counsels attention, whether by grievance or otherwise.
(b) Subject to Rule 105(1), dispose of all matters involving alleged misconduct by
dismissal of the allegation(s) or by the filing of a written complaint.
(c) Prosecute all proceedings under these rules before all forums in the name of the
State Bar of Nevada.
(d) File with the supreme court petitions with certified copies of proof of conviction
demonstrating that attorneys have been convicted of serious crimes, as defined in
Rule 111.
(e) Maintain permanent records of all matters investigated under these rules .
1
SCR 104 2004 version. Supp Appendices at 2.
Under SCR 104(2), Bar counsel may meet with an attorney against whom a grievance has been
received to informally resolve a matter that does not involve the commission of a serious crime, as
defined in these rules. In Mr. Mirchs case, Bar Counsel Rob Bare did meet with Mr. Mirch and
his attorney, David Hamilton and stated that the grievance would be dropped because Mr. Bare did
not believe there was an ethical violation. This is the only investigation that Respondent is aware.
Nevertheless, the screening panel ultimately sent the matter to formal proceedings with the filing
of a complaint against Mr. Mirch. In the Complaint, State Bar simply adopted Judge Hardestys
Order without conducting an independent investigation of the facts or law which supported Mr.
Mirchs complaint against McDonald Carano.
Nevada Supreme Court Rule 105 also has an investigation requirement:
Rule 105. Procedure on receipt of complaint.
1. Investigation.
(a) Investigation and screening panel review. Investigations shall be initiated
and conducted by bar counsel or bar counsels staff or other investigative
personnel at bar counsels direction prior or pursuant to the opening of a
grievance file. At the conclusion of an investigation of a grievance file, bar
counsel shall recommend in writing dismissal with or without prejudice,
referral to diversion or mentoring pursuant to Rule 105.5, a letter of caution, a
private reprimand, or the filing of a written complaint for formal hearing. The
recommendation shall be promptly reviewed by a screening panel. A screening panel
shall consist of three members of the disciplinary board, appointed by the chair in
accordance with Rule 103(6). Two of the three reviewers must be members of the
bar. By majority vote they shall approve, reject, or modify the recommendation, or
continue the matter for review by another screening panel.
SCR 105, 2004 version Supp Appendices 3.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
The Nevada Supreme Court acknowledged this duty in In Re Drakulich, 111 Nev. 1556; 908
P.2d 709; (1995):
"In discharging its inherent authority to discipline the bar, this court has the
obligation to conduct an independent and de novo review of any record compiled in
a disciplinary proceeding in order to determine whether discipline in any particular
instance is warranted," see State Bar of Nevada v. Claiborne, 104 Nev. 115, 126,
756 P.2d 464, 471 (1988), or whether any charge meriting discipline has been
proven, see In re Miller, 87 Nev. 65, 68-69, 482 P.2d 326, 328 (1971). n4 Thus, this
court has held that "the ultimate responsibility for arriving at the truth in disciplinary
matters lies with this court." Claiborne, 104 Nev. at 126, 756 P.2d at 471.
In Re Drakulich, supra at 1566.
ISSUE # 2. Legal authority that Mr. Mirch had a right to a hearing at Nevada Supreme
Court
The legal authority supporting Mr. Mirchs contention that he had a right to a hearing before
the Nevada Supreme Court, or at least notification that the matter would be submitted on the briefs,
is supported by the Nevada Rules of Appellate Procedure and the Nevada Supreme Court Rules
pertaining to attorney discipline. First NRAP 31(c) addresses the consequences of failure to file a
brief, one of which is that the party will not be heard at oral argument. NRAP Rule 34 also
specifically relates to oral argument:
Rule 34. Oral Argument.
(a) Notice of argument; postponement. The clerk shall advise all parties of
the time and place at which oral argument will be heard, and whether argument will
be before the full court or a panel...
(f) The court may order a case submitted for decision on the briefs, without
oral argument.
NRAP 34 Supp Appendices at 8
While NRAP 34(f) permits the Supreme Court to order a case submitted on the briefs, when
that occurs, the Nevada Supreme Court issues an order to the parties. This did not happen, there
was no hearing, and there was no order that the case was submitted on the briefs. Rather, the Order
of Disbarment was issued on April 11, 2008, and Respondent learned on it through the local media.
With respect to attorney discipline, SCR 105 states that the matter will submitted on the
record without briefing or oral argument if the attorney does not file an opening brief. In this case
Respondent did file an opening brief and should have been afforded oral argument.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
ISSUE # 3. What occurred when Kevin Mirch had a stroke and State Bar would not allow
a continuance.
On April 1, 2006, Mr. Mirch suffered a stroke and was impaired. By that time, the Bar had
already violated SCR 105(c) regarding the time to conduct the disciplinary hearing, which requires
that the hearing be within 45 days of assignment and may be continued, but the additional time could
not exceed 90 days. SCR 105(c). Mr. Mirch did not agree to continue the hearing. The record
reflects that at one point Robert Hager, then counsel for Mr. Mirch, waived this time requirement
on behalf of Mr. Mirch. However, Mr. Mirch was never consulted, did not agree to the same, but
was subject to the ineffective assistance of counsel which prolonged this matter well beyond the
requisite period.
As to the issue of the State Bars indifference to Mr. Mirchs health, a formal hearing was
set for July, 2006, and Mr. Mirch was suffering cognitive and physical impairment attributable to
the stroke. Mr. Mirch did not have the option of petitioning the Bar for a continuance of the July
hearing. Under SCR 117(3), if the attorney subject to disciplinary proceedings seeks a continuance
for health reasons, the State Bar will put that attorney on disability status:
3. Transfer to inactive status prior to determination of competency. If, during the
course of a disciplinary proceeding, the respondent contends that he is suffering from
a disability de to mental or physical infirmity or illness, or because of addiction to
drugs or intoxicants, which makes it impossible for the respondent to adequately
defend himself, the court shall enter an order transferring the respondent to disability
inactive status until a determination is made of the respondents capacity to continue
to practice law in a proceeding instituted in accordance with the provisions of
subsection 2 above.
In light of of SCR 117(3), Mr. Mirch did not have the option to seek time to recover from his
stroke unless he agreed to be put on disability status and then subject to the Bars discretion for
reinstatement. Mr. Mirch did not seek a continuance of the July hearing, but ceased all of his
rehabilitation exercises to prepare for the hearing. However, the State Bar felt compelled to file
an emergency motion to put Mr. Mirch on disability status anyway, which was instantly rejected by
the Nevada Supreme Court. Supp Appendices 10. Order. The Nevada Supreme Court did grant
Mr. Mirch a 90 day stay to permit him time to recover. Even after the 90 day stay, Mr. Mirch was
not fully recovered, but was forced into the formal hearing in March, 2007, where he fell ill, was
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
excused, and the disciplinary hearing continued in his absence. Transcript of Bar Hearing Volume
II Hearing at 351:14.
ISSUE #4. Legal authority that swearing in after testimony violates due process.
Under the rules of evidence, specifically Rule 603, the oath must be given to a witness
before testimony is given:
Rule 603. Oath or Affirmation. Before testifying every witness shall be required to
declare that the witness will testify truthfully, by oath or affirmation administered in a form
calculated to awaken the witness conscience and impress the witness mind with the duty
to do so (Amended Mar. 2, 1987, eff. Oct. 1, 1987.) [Emphasis Added]
This rule was not satisfied. Bruce Laxalt testified before the State Bar Panel without being properly
sworn in as required under Rule 603. Under Rule 603, before testifying every witness is required
to declare that he/she shall testify truthfully, by oath or affirmation administered in a special form
designed to awaken the importance of the oath. In this case, Mr. Laxalt was not sworn in until after
the testimony was given. Consequently, he could not have been aware of the importance of his
testimony before it was given. Since Section 603 was violated, Mr. Mirch was denied due process
essential to assure truthfulness of the testimony given. It is important to note, the Respondent moved
to strike Mr. Laxalts testimony which was denied. The Disciplinary Panels action was contrary
to the express wording of the rules of evidence, and there is no provision in the rules for a
retroactive oath taking.
Issue #5. Legal authority that Bar Panel cannot discredit the credibility of witnesses or
has to believe one witness.
This issue goes to the sufficiency of evidence prong of this Courts review under In Re
Kramer. The sufficiency of evidence was discussed by the Nevada Supreme Court in its opinion
which rejected the Nevada State Bars recommendation that attorney Victor Drakulich be suspended
from the practice of law in In Re Drakulich, 111 Nev 1556; 908 P.2d 709 :
In bar disciplinary matters, a higher degree of proof is required than in ordinary civil
proceedings. Clear and convincing evidence must support any findings of
misconduct. See In re Stuhff, 108 Nev. 629, 634-35,837 P.2d 853, 856 (1992) see
also SCR 105(e). This court has held that clear and convincing evidence must be
satisfactory proof that is: so strong and cogent as to satisfy the mind and conscience
of a common man, and so to convince him that he would venture to act upon that
conviction in matters of the highest concern and importance to his own interest. It
need not possess such a degree of force as to be irresistible, but there must be
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
evidence of tangible facts from which a legitimate inference . . . may be drawn.
Gruber v. Baker, 20 Nev. 453, 477, 23 P. 858, 865 (1890), cited in Stuhff, 108 Nev.
at 635, 837 P.2d at 856. Clear and convincing evidence has been defined by other
courts as "evidence establishing every factual element to be highly probable," see
Butler v. Poulin, 500 A.2d 257, 260 n.5 (Me. 1985), or as "evidence [which] must be
so clear as to leave no substantial doubt," see In Re David C., 152 Cal. App. 3d 1189,
200 Cal. Rptr. 115, 127 (Ct. App. 1984).
Drakulich, supra at 1566-1567.
As in Drakulich, an independent and de novo review of the record of the disciplinary action
against Mr. Mirch simply does not reveal satisfactory, strong, or cogent proof of tangible facts
establishing a legitimate inference or a high probability that Mr. Mirch committed the violation of
the disciplinary rule found by the panel.
For example, the State Bars expert witness testified that he assumed all of the facts of Mr.
Mirchs Amended Complaint to be true. Vol II Transcript of Bar Hearing at 257:11-14. Mr.
Laxalt, another witness for the Bar testified that he had no knowledge of the underlying facts or
investigation done by Mr. Mirch prior to filing suit. The only witness who gave any testimony
whatsoever as to the facts of whether the threat was made to Mr. Mirch by Attorney Leigh Goddard,
was Leigh Goddard herself, who simply stated that she did not make the threat, and went through
each allegation of the Amended Complaint and denied it . Vol II Transcript of Bar Hearing at 320-
343 . However, Ms. Goddard also testified that she had never been sued by anyone else, which was
an outright lie because she was the defendant at least two other civil lawsuits.
The evidence in favor of Mr. Mirch factually, was Mr. Mirchs testimony of the events; Mr.
Wisemans testimony that he overheard Mr. Goddard tell her client to destroy the fee agreement;
evidence that Marilyn Bulloch (an acquaintance of Dr. Frank who had lived in Alabama) was told
by Dr. Frank himself that his attorney told him to destroy the fee agreement; testimony by David
Hamilton as to his percipient knowledge of Denise Reed informing Mr. Mirch that a female attorney
from McDonald Carano had called and instructed Ms Reed not to pay her bill to Mr. Mirch. The
State Bar presented no affirmative evidence refuting this testimony. In order to find as it did, the Bar
Panel had to completely discount and reject the testimony offered by Mr. Mirch, Mr. Wiseman, Mr.
and Hamilton, which it did. This was improper Re Drakulich, supra at 1569. Also in light of the
circumstances that Ms. Goddard had her own personal interest in failing to testify truthfully to her
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
own violation of professional ethics, her testimony should not have been accorded the same high
degree of reliance that the Panel gave that testimony. Id.
Finally, in In Re Drakulich, the Nevada Supreme Court held:
In the case of In re Clarke, 46 Nev. 304, 307-08, 212 P. 1037, 1038 (1923), this court
held that [HN4] due to the highly penal nature of an order of disbarment and its
adverse affect on the future of the accused, this court would "not disbar on doubtful
evidence, or where there is substantial conflict in it." Additionally, in the case of In
re Winters, 40 Nev. 335, 163 P. 244 (1917), this court weighed the "circumstantial
evidence of the prosecution" against the "positive testimony" of the accused attorney.
This court also alluded to the former good reputation of the attorney in emphasizing
the attorney's positive testimony. Id. at 337, 163 P. at 245.
[*1570] Although the panel has recommended a 90-day suspension in the instant
case, and not disbarment, we nonetheless conclude that, under all the circumstances,
the evidence in this case that appellant paid Hall a referral fee is doubtful and does
not warrant such a drastic sanction. At the very least, the evidence relating to that
charge is in substantial conflict.
For example, we can perceive no clear and convincing evidence supporting the
panel's finding that appellant violated SCR 196(3), the rule which prohibits a lawyer
from giving anything of value to a person for recommending the lawyer's services.
As noted, the only direct evidence in this record supporting that finding of
misconduct is Stellmack's testimony that appellant paid Hall referral fees. As noted
above, however, Stellmack's testimony was contradicted by the testimony of Hall, by
the testimony of appellant, and by corroborating testimony of Rusk. Moreover, the
state bar does not dispute appellant's assertion that his record establishes that he is
an excellent, competent, and dedicated attorney who has never before been
disciplined. Thus, we are inclined to accord appellant's testimony far more weight
than did the panel. See Winters, 40 Nev. at 337, 163 P. at 245.
Additionally, in light of appellant's and Hall's positive testimony regarding the nature
and purpose of the payments that were made to Hall, we harbor substantial doubts
respecting the panel's finding that appellant violated SCR 197, the rule that prohibits
a lawyer's solicitation of clients when a significant motive for the solicitation is the
"lawyer's pecuniary gain." The record before us suggests that, to the contrary,
appellant's motives were far more consistent with a desire to assist Hall, a longtime
friend of appellant's family who became "a different sort of person" after he suffered
neurological damage as a young man in an accident and who was experiencing
financial difficulties.
In Re Drakulich at 1569-1570.

In the present case, the State Bar could not recommend disbarment on doubtful evidence, and
should have been held to the higher evidentiary standard in favor of Mr. Mirch. They failed. Rather
than considering all of the evidence, the Panel and the Nevada Supreme Court knew the desired end-
result and discounted the testimony of all of Respondents witnesses in order to get there (with the
exception of Mr. Geoff Giles, the Bankruptcy Attorney who testified as an expert witness whom the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8
Bar offered absolutely no evidence to refute).
ISSUE # 6. Judge Kosach issue
In the disciplinary matter, the State Bar presented and the Panel considered the fact Judge
Kosach has a standing order that he will not sit on any case in which Kevin Mirch is involved.
Supp Appendices 12, Order. This was offered as evidence that Mr. Mirchs practice of law was so
egregious that a district court judge refused to have him in his court. The fact is that Judge Kosach
recused himself after Mr. Mirch challenged the propriety of the Judges conduct and filed a motion
for recusal against Judge Kosach. Specifically, in a civil case entitled Brignand v. Snyder, case no
CV97-07884 Second Judicial District Court of the State of Nevada County of Washoe. Judge
Kosach offered a favorable ruling in favor of the plaintiff, John Brignand in exchange for collectors
baseball cards. Supp Appendices 14, Affidavit of John Brignand. Judge Kosach was assigned to
another case in which Mr. Mirch represented the plaintiff, Diamond Motors v. Wells Fargo, case
number CV00-03939, Second Judicial District Court of the State of Nevada County of Washoe. Mr.
Mirch filed a motion for recusal of Judge Kosach, who then made derogatory statements against Mr.
Mirch from the bench ( a transcript which Judge Kosach has prevented Mr. Mirch from obtaining).
Mr. Mirch filed an affidavit in support of his motion for recusal addressing the baseball card issue
in Brignand. Supp Appendices 16. Judge Kosach responded with is order of a standing recusal
regarding Mr. Mirch. The misconduct was not Mr. Mirchs as the bar panel assumed, but rather a
member of the bench in Washoe County.
ISSUE # 7. Rob Bare could not call as witness.
Prior to the disciplinary hearing, Mr. Mirch subpoenaed Rob Bare and Justice Hardesty to
appear as witnesses. The State Bar moved to quash the subpoenas, which the panel granted. Mr.
Bare had been bar counsel at the time the Hardesty order was referred, and was responsible for
investigation of the allegations. At the time of the hearing, Rob Bare was no longer bar counsel, but
a Municipal Judge. The Panel quashed the subpoenas. Vol II Transcript of Bar Hearing at
291:299.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
ISSUE # 8. Support for the proposition that KM had a duty to report the fact that there
were assets that came in to the BK Court.
Mr. Geoff Giles, Esq. is a bankruptcy attorney who testified as to Mr. Mirchs duty to report
the assets to the bankruptcy court, especially in light of Judge Riblets Order in the Frank
Bankruptcy. Transcript of Bar Hearing, Vol III at 501-538.
ISSUE #9. Evidence that David Hamilton was a Bar board member or that he bar had used
him as an expert ever.
The Bar Panel totally discredited Mr. Hamilton as an expert witness on the subject of legal
ethics, despite the fact that Mr. Hamilton had served for many years on the State Bar Disciplinary
Panel himself. This Court asked for evidence to support this fact. Mr. Hamilton has prepared and
submits a Declaration which establishes his credentials as an expert witness in this area of law,
which is include in the supplemental excerpt filed with this brief. See Supp Appendices at 53, Decl
of David Hamilton.
ISSUE # 10. Submit the appellate decision on the appeal of Hardestys order, petition for
rehearing , and denial of petition.
This Court has also requested the Nevada Supreme Courts decision in the Mirch v.
McDonald case. The opinion is submitted in the supplemental appendices at page 19. Further,
Respondent filed a Petition for Rehearing included at Supp Appendices at 31, and the Supreme
Courts denial of the Petition. Supp Appendices at 44.
ISSUE #11. Brief that their notice of witnesses was insufficient.
SCR 105 imposes the duty on bar counsel to disclose the witnesses and evidence to be used
against the attorney in a formal disciplinary hearing:
105(c) Time to conduct hearing; notice of hearing; discovery of evidence
against attorney. The hearing panel shall conduct a hearing within 45 days of
assignment and give the attorney at least 30 days written notice of its time and place.
The notice shall be served in the same manner as the complaint, and shall inform the
attorney that he or she is entitled to be represented by counsel, to cross examine
witnesses, and to present evidence. This notice shall be accompanied by a summary
prepared by bar counsel of the evidence against the attorney, and the names of
wetness bar counsel intends to call for other than impeachment, together with a brief
statement of the facts to which each shall testify, all of which may be inspected up
to 3 days before the hearing. Witnesses of evidence, other than for impeachment,
which become known to bar counsel thereafter, and which bar counsel intends to use
at the hearing, shall be promptly disclosed to the attorney. For good cause shown,
the chair may allow additional time, not to exceed 90 days, to conduct the hearing.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
Supp Appendices at 2, copy of Nevada SCR 105.
In Mr. Mirchs case, the State Bar Complaint was filed on June 15, 2004. The hearing,
including any continuance for good cause had to occur no later than 90 days later, or no later than
September 13, 2004. The Notice of Formal Hearing was served on August 25, 2005, 436 days later.
In fact, the hearing was held over two and a half years later, in February, 2007. This not only
violated SCR 105, it greatly prejudiced Mr. Mirch because by the time of the formal hearing, Mr.
Mirch was impaired because of a stroke, and one witness, Marilyn Bulloch who was going to come
to Reno to testify, had died. Mr. Mirch expressed his position that the hearing was unfair in
response to a question from a panel member during the hearing.
The Notice of Formal Hearing identified four witnesses:
1. Dennis Kennedy, Esq. the expert witness whom was disclosed to corroborate the
findings of fact and conclusions of law made by Judge James Hardesty in the Order filed October
9, 2003 which is the underlying basis of the State Bars Complaint in this matter and which is
incorporated by reference in the State Bars Complaint. Supp Appendices 47. Mr. Kennedys in
his opinion stated that he who accepted all facts of the Amended Complaint as true, and in fact gave
no testimony as to the factual allegations of the Amended Complaint.
2. Bruce, Laxalt, Esq. legal counsel for the McDonald defendants whose testimony is
identified as to testify concerning legal action taken as counsel for defendants and the procedural
history of the underlying matter and the related federal litigation known as Kevin Mirch v. Judy
Frank, ..... He will also testify regarding the effect Respondents action had on his clients, the law
firm of McDonald, Carano & Wilson and Leigh Goddard, Esq. Supp Appendices 47. Again Mr.
Laxalt was not expected to, and offered no testimony regarding the factual allegations contained in
the First Amended Complaint. In fact, Mr. Laxalt testified that he knew nothing of the underlying
facts or Mr. Mirchs investigation prior to filing the complaint. _____
3. Leigh Goddard, Esq. was disclosed to testify regarding the effect Respondents
conduct had upon her professionally and upon the underlying matter as well as related federal
litigation in the matter known as Kevin Mirch v. Judy Frank, ..... Supp Appendices 48. Notably
absent from this disclosure is anything pertaining to the factual allegations of the First Amended
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
Complaint, all of which were included in her testimony at the disciplinary hearing.
4. Custodian of records of the bar.
All of the notice of witnesses and evidence supported that the Bar was not going to contest
the underlying facts of the Amended Complaint, but rather the law. Mr. Mirch proceeded on this
basis and introduced statutory and case law supporting his position. However, the Findings of Fact
and Conclusions of Law recommending disbarment find each factual allegation of the Amended
Complaint to be false. This is absent any notice to Respondent that the facts were at issue and in the
absence of any evidence to refute the evidence presented by Mr. Mirch in the testimony of Mr.
Mirch, Mr. Wiseman and Mr. Hamilton, as well as evidentiary support for the same. There is
nothing in the witness disclosure or even the Complaint itself that gave Mr. Mirch notice that the Bar
was disputing the underlying facts of the Mirch v. McDonald suit.
The Nevada Supreme Court has recognized the due process requirements of bar disciplinary
matters. For instance, in In Re Discipline of Laub, 119 Nev. ___, ___ P.3d ___ (Jan. 9, 2002) The
Nevada Supreme Court disregarded violations that the disciplinary panel had found, but were not
clearly identified in the complaint, stating that the complaint itself must be specific as to notify the
attorney of the charges against him:
Laub argues that he has been denied due process because the complaint did not
assert any charges based on a possible products liability claim, and so he was not
notified of any such charges, The state bar weakly argues that since it attached the
cost and disbursement statement to the complaint, and the statement mentioned a
possible products liability claim because of the funds being held back for costs, Laub
was on notice that his conduct concerning the products liability claim was subject to
review. The state bar also argues that Nevada is a notice-pleading jurisdiction, and
that its complaint was sufficient under this standard. In reply, Laub argues that the
rules of civil procedure do not apply to bar complaints; rather, SCR 105(2) governs.
This court recently reiterated in In re Discipline of Schaefer 117 Nev. , 25 P.3d
191, as modified by 31 P.3d 365 (2001) that due process requirements must be met
in bar proceedings, and that an attorney charged with misconduct must be notified
of the charges against him. Also, SCR 106(2) provides that "the complaint shall be
sufficiently clear and specific to inform the respondent of the charges against him or
her," Here, the complaint makes no mention whatsoever of the products liability
claim, and the record reflects that the state bar never sought to amend the complaint
to include violations based on this claim. We conclude that Laub was not adequately
notified of any charge against him based upon the Sartains' possible products
liability claim, and that these violations must be disregarded.

In Re Discipline of Laub, supra.
Similarly, due process and SCR 105(c) require full and fair disclosure of all the facts
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
pertaining to a witness' testimony. This was violated when Ms. Goddard testified as to facts relating
to the underlying Amended Complaint, when she was only going to testify as to the effect the suit
had on her professionally on the federal matter. See Supp Appendices, 48, compare to Hearing
Testimony Volume II 320-343.
ISSUE # 12. Other cases that the used against KM in Bar hearing.
During the bar hearing, other cases in which Mr. Mirch was involved were used as evidence
that Mr. Mirch had violated SCR 107. This violated evidentiary rules regarding character evidence,
N.R.S. 48.045, and included cases that did not exist at the time that Mr. Mirch filed the complaint
against McDonald Carano, and the alleged improper conduct was subsequent to the underlying
complaint. Those cases we:
Mirch v. McDonald Carano (federal case) Case No CV-N-01-0443-ECR U.S. Dist Court
Nevada. Mr. Mirch filed a third party complaint for indemnification and contribution against his
successor attorneys (McDonald Carano) in the USI v. Frank case in the event he was held liable for
legal malpractice for acts of the other attorneys.
Mirch v. State Bar Case No 3:05-CV-00641-RLH U.S. Dist Court Nevada. Mr. Mirch sued
the Nevada State Bar and certain individuals seeking damages and injunctive relief ro due process
violations related to the disciplinary proceeding. That case was dismissed and is currently on appeal
at the Ninth Circuit docket no. 07-15143, 07-16046.
IGCA bankruptcy case no. BK-04-21118-LBR U.S. Bankruptcy Court Dist Nevada. The
panel received evidence of a sanction that was imposed against Mr. and Mrs. Mirch in the
bankruptcy case of IGCA, case no. on DATE for the Mirches proceeding procedurally with a civil
suit in the Second Judicial District Court to preserve the asset of the bankruptcy estate .
Bruce Laxalt cited a number of cases in a footnote in his motion to dismiss, which when
asked, could not identify any wherein Mr. Mirch had sued opposing counsel. Transcript of Bar
Hearing, Vol I at 101-109:19, testimony of Bruce Laxalt.
State of Nevada v. Mirch case number CR07-1197 is a case brought by the State of Nevada
criminally charging Mr. Mirch with unfounded allegations, but nevertheless were known to member
of the panel and used against Mr. Mirch.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13
Respectfully submitted this 20 day of November, 2008.
th
MIRCH LAW OFFICES
San Diego, CA 92101
BY__/s/ Marie Mirch_______
Marie Mirch
Counsel for Respondent

Mirch Law Offices
Kevin J. Mirch
CA SBN 106973
Marie C. Mirch
CA SBN 20083, NV SBN 6747
San Diego, CA 92101
(619) 501-6220
(619) 501-6980 Fax
Attorneys for Respondent
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE: ) No. 08-80074
)
Kevin John Mirch, Esq. ) SUPPLEMENTAL APPENDICES
Admitted to the Bar )
of the Ninth Circuit )
)
Respondent ) ____________________ )
, \
.; :
SCANNED
MICHIE'S
NEVADA REVISED STATUTES
ANNOTATED
COURT RULES ANNOTATED
2004 EDITION
Annotated by the Editorial Staff
. of the publisher
8
N
LexisNexis
't.!-.
.'.\"
. .
,:> .
. /1
. . ~ . . ,:,
i .;
<I:'
' ..
. (. ~ ,
Rule 104
is considering a complaint shall remain
panels shall deliver reprimands and sign all
panel to carry out the provisions of subsection 6 of
'of each disciplinary board may appoint three members of
whom must be members of the bar, to meet with an attorney
a grievance has been received but not filed in an attempt to
matter informally which does not involve the commission of a serious
"filltllVl,J)CC ... , defined in these rules. Such a meeting shall take place within 30 days
of the grievance and may include the grievant and any others the
or the appointees believe would be helpful in resolving the grievance.
report of each informal resolution attempted and its outcome shall
'. made by each chairman to the executive director of the state bar. A board
. member appointed to attempt an informal resolution of a grievance shall not be
a member of the hearing panel designated to hear the grievance or complaint.
11. A grievance against a member of a disciplinary board shall be referred to
the other disciplinary board. (Added eff. 2-15-79; Amended eff. 2-11-86;
Amended 3-7-90, eff. 4-6-90; Amended eff. 1-21-94; Amended 7-31-95, eff.
1-2-96.)
Editor's Note. - Former Rule 103 was
repealed effective February 15, 1979.
CASE NOTES
Rule does not preclude Nevada Bar from
being complainant. - This rule applies when
some entity other than the Nevada Bar is the
complainant. Although this rule envisions a
complainant other than, or in addition to, the
Nevada Bar, it does not preclude the Nevada
Bar from being the complainant. Ching v. State
Bar, 111 Nev. 779, 895 P.2d 646 (1995).
Membership in bar association does not
disqualify judge or other adjudicator from
Rule 104. State bar counsel.
1. State bar counsel shall:
hearing disciplinary or licensing matter.
- Mere membership in a professional organi-
zation which has responsibility for prosecution,
under peer disciplinary procedures, does not
disqualify a judge or other adjudicator from
hearing a disciplinary or licensing matter.
Burleigh v. State Bar, 98 Nev. 140, 643 P.2d
1201 (1982).
Cited in: In re Ross, 99 Nev. 1, 656 P.2d 832
(1983).
(a) Investigate all matters involving possible attorney misconduct or inca-
pacity called to bar counsel's attention, whether by grievance or otherwise.
(b) Subject to subsection 1 of Rule 105, dispose of all matters involving
alleged misconduct by dismissal of the charge or by the filing of a written
complaint with the appropriate disciplinary board.
(c) Prosecute all proceedings under these rules before all forums in the
name of the State Bar of Nevada.
(d) File with the' supreme court certificates of conviction for attorneYI
convicted of serious crimes, as defined in these rules.
122
, ,!,\
.. -
. '
,.,
,', ,I ,.T.;.
. ~ :'T " ~
. . ~
"
~ t ""
:"J",
Rule 105 NEVADA COURT RULES Rule 105
hearing before a three (3) member screening panel of the appropriate disci-
plinary board.
(c) Hearing. Upon receipt by bar counsel of written objections to the
administration of a private reprimand and a statement of election by the
respondent attorney within the time prescribed, the matter shall be set for a
formal or informal hearing in accordance with the respondent attorney's
election. A formal hearing shall proceed in accordance with paragraph two (2)
of this Rule. At an informal hearing the respondent attorney shall be given the
opportunity to appear, to present oral argument, and to present documentary
evidence related to the written objections to the administration of the private
reprimand. A decision to impose a private reprimand not objected to by the
respondent attorney within fourteen (14) days of notice or imposed after an
informal hearing shall be final and shall not be appealable. A member of a
disciplinary board who has reviewed bar counsel's recommendation on a
grievance shall not be appointed to an informal or formal hearing panel for the
grievance or complaint. Except in matters requiring dismissal because the
grievance is frivolous or clearly unfounded on its face, or falls outside the
disciplinary board's jurisdiction, or is resolved informally pursuant to subsec-
tion 10 of Rule 103, a charge of misconduct shall not be disposed of until the
accused attorney has been given an opportunity to respond to the allegations
against the attorney.
(d) Dismissal of grievance prior to hearing. Bar counsel may appeal a
decision to dismiss a grievance to a five member panel appointed by the
chairman of the respective northern or southern disciplinary board. The
chairman of the respective board shall be one of the five members on the panel
and shall serve as chairman of the panel. The panel shall determine whether
the decision is supported by the record and is in the best interest of justice.
Such an appeal must be filed with the chairman ofthe appropriate disciplinary
board within 20 days of receipt ofthe decision by filing a petition, together with
the record of the matter being appealed. The panel shall decide the matter on
the record without oral argument or appearance.
The decision shall contain the name and address of the appropriate northerr
or southern disciplinary board chairman and identify the chairman as th(
person to whom the petition must be sent, and should further advise of th'
time limits provided for the petition for appeal.
2. Commencement of proceedings. Formal disciplinary proceedings are corr
menced by bar counsel filing a written complaint in the name of the state bE
with the appropriate disciplinary board. The complaint shall be sufficient
1
clear and specific to inform the respondent of the charges against him or hE
A copy of the complaint shall be served on the respondent and it shall dire
that a response be served on bar counsel within 20 days of service; the origin
shall be filed with disciplinary board chairman. The time to respond may'
extended once by the chairman for not more than 20 days for good cause. In t
event the respondent fails to plead, the charges shall be deemed admitu
provided, however, that a respondent who fails to respond within the ti
provided may thereafter obtain permission of the chairman to do so if faill
to file is attributable to mistake, inadvertence, surprise, or excusable negl,
124
(]
Rule 105 NEVADA COURT RULES Rule 105
(e) Rules of evidence; support of panel's decision. The rules applicable to the
admission of evidence in the district courts of Nevada govern admission of
evidence before a hearing panel. Evidentiary ruling shall be made by the
chairman. The findings ofthe panel must be supported by clear and convincing
evidence.
3. Review by supreme court.
(a) Time and manner of appeal. A decision of a hearing panel shall be served
on the respondent, and service shall be deemed Notice of Entry of Decision for
appeal purposes. Except as provided in subsection 3, paragraphs (b) and (c) of
this rule, a decision is final and effective 30 days from service, unless an appeal
is taken by the respondent within that time. An appeal from a decision of a
hearing panel shall be treated as would an appeal from a civil judgment of a
district court and is governed by the Nevada Rules of Appellate Procedure.
(b) Automatic appeal of suspension or disbarment. A decision recommending
suspension or disbarment, unless agreed to in writing by the respondent
pursuant to Rule 112 or Rule 113, shall be automatically appealed to the
supreme court. An appeal under this paragraph shall be commenced by the
hearing panel forwarding the record of the proceedings before it 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 ofthe supreme court. Thereafter, the
matter shall be treated as any other civil appeal following docketing of the
record.
('- Respondent-attorney shall have 30 days from the date this court acknowl-
I edges receipt of the record within which to file an opening brief or otherwise
advise the court ifhe or she intends to contest the hearing panel's findings and
, recommendations. If the attorney files an opening brief, briefing shall there-
I after proceed in accordance with NRAP 3Ha). If the attorney does not file an
I
! opening brief, the matter will be submitted for decision on the record without
! briefing or oral argument.
i-(c) Review of public reprimand. A decision of a hearing panel recommending
that a public reprimand be issued, unless agreed to in writing by the
respondent pursuant to Rule 113, shall be submitted to the supreme court for
approval and publication in accordance with Rule 121.1. The hearing panel
shall forward the record ofthe proceedings before it to the court within 30 days
of entry of the decision. Receipt of the record in such cases shall be acknowl-
edged in writing by the clerk of the supreme court. Thereafter, the matter shall
be treated as any other civil appeal following docketing of the record.
Respondent-attorney shall have 30 days from the date this court acknowl-
edges receipt of the record within which to file an opening brief or otherwise
advise the court ifhe or she intends to contest the hearingpanel's findings and
recommendations. If the attorney files an opening brief, briefing shall there-
after proceed in accordance with NRAP 31(a). If the attorney does not file an
opening brief, the matter will be submitted for decision on the record without
briefing or oral argument.
4. Rules of procedure. The chairmen, after consulting with their respective
boards, may adopt rules of procedure, subject to approval by the board of
126
, \
I
9
"'-" ..
'.,
(O)1941A .....
JUl t ~ L 1006
,
i
..... -.. J
IN THE SUPREME COURT OF THE STATE OF NEVADA' :"ceJ.
IN THE MATTER OF THE DISABILITY
OF KEVIN J.MIRCH, ES .
No. 47642
FilED
. ORDER DENYING PETITION FOR
TRANSFER TO DISABILITY INACTIVE STATUS
AND STAYING DISCIPLINARY HEARING FOR 60 DAYS
This is a petition by Northern Nevada Disciplinary Board
Chair Patrick V. Fa-gan, seeking the transfer of attorney Kevin J. Mirch to
disability inactive status.
The petition was filed under SCR 117(3). This provision states
that when an attorney-respondent in a discipline proceeding contends that
he is disabled, this court shall transfer the attorney to disability inactive
status pending further order of this court. Here, however, respondent
Kevin Mirch denies that he is disabled. Accordingly, SCR 117{3) does not
apply.
We note that we could construe the petition as one under SGR
1 (2), which permits a disciplinary board to petition this court to
determine a.lawyer's competency. But while the petition and its exhibits
indicate that Mirch suffers from certain symptoms in the aftermath of his
April 2006 ,stroke, the documents before us do not raise a well-founded
concern that he is completely unable to practice law. Accordingly, we deny
the petition.
10
,'Jr'
j'
SuPREME OOURT
OF
NEVADA
(0)1947/\ ...
."
Finally, we conclude that Mirch should have the opportunity
to focus on his recovery for a brief period, and so we stay the disciplinary
proceedings against Mirch for 60 days from the date uf Lhis ardeLl
It is so ORDERED.2
_____ ---4:;,.-____ -;- J.
J.
..
cc: Patrick V. Fagan, Chair, Northern Nevada Disciplinary Board
Julien G. Sourwine, Chair,
'Northern Nevada Disciplinary Board Hearing Panel
Rob W. Bare, Bar Counsel
Wayne Blevins, Acting Executive Director
Hager & Hearne
Mirch & Mirch
lWe further clarify that, after expiration of the stay and resumption
of the disciplinary hearing, attorney Robert Hager is relieved of any duties
as Mirch's 6ounsel, inasmuch as Mirch voluntarily terminated his services.
:
2This matter shall remain confidential, and this order shall not be
published. Cf. SCR 121.1(4) (providing that an order granting a petition
for transfer'to disability inactive status shall be published).
2 tJ
, I
CODE 3085
F I LED
2
MAR 292002
3
RONALD JR., CLERK
8
l, nge-..::
Y
I,,,, \ .
. .
DEPUTY
4
5
6 IN THE SECOND JUD.ICIAL DISTRICT COURT OF THE STATE OF NEVADA
7 IN AND FOR THE COUNTY OF WASHOE
8
9 DIAMOND MOTORS AND PAWN, INC.,
. ;
10
Plaintiff,
11
VS.
12 WELLS FARGd as the successor to Norwest
Financial of Nevada, Inc., NFCAR,STEVE
13 WINGFIELD, ARNIE BRUCE, MANLEY HALL, et
I I .
14 a., , .'
Defendant.
15
__________
16
Case No. CVOO-03939
. Dept. No.8
17
ORDER OF VOLUNTARY RECUSAL
18
On March 18,2002, Mr. Kevin Mirch, Esq. filed with this Court an Affidavit in
".p
19 Support of Request for Removal of Judge Steven Kosach. A motion requesting Judge
I
20 Kosach's removaltdid not accompany this Affidavit.
, .
21
The Affidavit sets forth Mr. Mirch's belief that his clients cannot receive a fair trial
22 before this Judge. ; Mr. Mirch bases this belief on statements allegedly made by myself
23 that were, in Mr. Mirch's opinion, intended to be disparaging to both Mr. Mirch and his
}
24 clients.
25
The Affidavit in its title states that a request for the removal of Judge Kosach is
26 based on Nevada Supreme Court Rule 148. Upon research of this authority, it Came to
, .
27 this Court's attentio(1 that Nevada Supreme Court Rule 148 was repealed on February 15,
28
1979. Accordingly, it must be concluded that Mr. Mirch bases his request for removal on a
rule that has not been valid authority for over 20 years.
\ In addition, as noted above, a formal motion did not accompany this Affidavit. The
2 Affidavit is therefore a renegade document and serves no purpose except to informally
3 indicate Mr. Mirch's feelings to the Court. This is a procedural problem, as no formal
4 request has been made to the Court for Judge Kosach's removal. Without a formal
5 request in the form of a motion, there is no action to be taken by the Court.
6 If any disparaging remarks were truly made about Mr. Mirch, -they would have been
7 for behavior such' as this. Any comments made by myself were made fairly and objectively
8 based on Mr. Mirch's work product and behavior presented in this Court for the past twelve
9 years.
10 The fact that Mr. Mirch feels this way, however, brings up an important ethical point.
11 If Mr. Mirch along his "beliefs" to his clients, then I must recuse myself from this
;
12 case and all future cases in which Mr. Mirch is the attorney of record. By doing so, Mr.
13 Mirch's clients will not be deterred by any appearance of impropriety. Nor will Mr. Mirch
14 have excuses or a scapegoat when things do not go his way.
15 Accordingly, this Court, pursuant to NRS 1.230(3), shall recuse itself from this case
16 and all future cases in which Mr. Mirch is attorney of record.
17 THEREFORE, IT IS ORDERED that this case be referred to the Washoe County
18 Clerk's Office for purpose of random reassignment to another department of the
19 Second Judicial District Court, and
20 IT IS HEREBY ORDERED that all future cases involving KevJ.IJ Mirch, Esq. s an
, /
21 attorney of record be aSSigned to a court other than Departme Eight.
22 DATED this 28
th
day of March, 2002.
23
24
25
26
27
28
2
."
.. _' ____ .'I't "., __________________________ ..
Aftldavi[
1. John Brigoand, being sworn, do depose and S<:IY
I
I. My mIme is John Brignand.
2. I amthe:Pluintitl in .1 case entitled iJril:nam/ \'. Byron Snyder, er. af .. CV9707884. In
the Second Judicial District Court of" the Stale of Nevuda in and the Counly of Washoe. Judge.
Steven Kosuch i4 the prc.-;iding Judge in the cns!'!.
3. On or about April 16, 200 J, 1 met in chambers with Judge Kosach and my ultorney,
Kevin J. Mirch. Esq. During thut meeting, Judge Kosach djscussed signing an order gnlntjng
summary Illy favor and against rhe J)ctcndClnts in this casco
4. 1 am I:lcollec(or of and other memorabiliu, including baseball cards.
5. During the meeting in Judge Kosach'1' chambers, Judge Kosach asked about the:: oilier
memorabilia that 'I collected. In response, I told him thul J rare baseball ennIs. Judge
Km:ach immcdiurhl
y
inquired u .... to {he cards that 1 collected. 'v\.'hen 1 told him about certain ran:
cards. he told thar he WitS a broker for buscball curds; would like to sec my cards;
nnd would buy l:ards or sell thl! cards for me at d cO:llmissiDfl. This conversalion occurred
while my case wU1 still pending.
I
(,. During the meeling with Judge Kosach, I did not wunt to talk about buscball curds,
instead, ) w:mlCd nly properly buck which \Vtl.'i stolen by rhe Ddenduuts.
7. Judge did nor signlhc summary judgment order on thut day as he wanled one
line of the proposed onJer changed. I tClr it strange that he would noljtlsl change tht: one line on
the c;pol or simply cross out the Iunguagc thaI he did not like.
K. As [ was leaving his office, Judge Kosach provided his carJ to lilt! and said to call him
regarding the hnscbnlJ
______ '1: _________________ _
-
9. I felt very uncomfortable that a Judge was effectively trying to dQ business with
I
me in hjs court chamber while my was stHl pending. I got the distinct feeling that I might
be able to develop some influence from this judge in the future by dealing my rare baseball cards
with him.
10. After the meeting, I asked my attorney jf Judge Kosach's was proper.
Mr. Mirch said no and has told me not to contact Judge Kosach ever about selling or buying any
baseball cards. i
I hereby swear under penalty of perjury that the foregoing is true and correct to the best of
my knowledge and belief.
Dated of June, 2001.
STATE OF NEVADA )
)
COUNTY OF WASHOE )
On this II f"day, John Brignund,
personally appeared before me, a notary

NOTAR Y PUBLIC
jS
Code:$lOS0
LA W OFFICE OF MIRCH & MIRCH
2 KEVIN 1. MIRCH, ESQ.
State Bar No. 0923
3 MARIE C. MrRCH, ESQ.
State Bar No. 6747
4 201 W. Liberty Street, Suite 201
P.O. Box 5396
5 Reno, Nevada 89513
Attorneys for Plaintiff
6
7 IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
8 IN AND FOR THE COUNTY OF VI ASHOE
9 Diamond Motors and Pawn, Inc.,
10
11 v.
Rlaintiff, Case No. CVOO-03939
Dept. No.8
12 Wells Fargo as the successor to Norwest
Financial of Nevada,Inc., NFCAR,
13 Steve Wigfield, Arnie Bruce, Manley HaJI,
DOES I-X,
14
15
16
17
18
19
21
22
. Defendants.
~ ~ /
AFFIDA VIT OF KEVIN J. MIRCH IN SUPPORT OF
SCR 148. REQUEST FOR REMOVAL OF STEPHEN KOSACH
I, Kevin J; Mirch, Esq., after being sworn do depose and say.
1. My name js Kevin J. Mjrch. I have personal knowledge of the foJlowing facts and if
3. In another case entitled Mirch v. Reed, CV9-02799, Second Judicial District Court in
and for the County of Washoe, Steven Kosach was the assigned judge, until I learned that he had
23 I
24
2S
26
27
28
conversations wherein he made very derogatory comments concerning myself llnd my case to
other attorneys in a wholly unrelated matter.
4. A hearing in cJlCtfllbers was held during which Judge Kosach admitted that he had
made the comments bul it was "Bar or Locker room" talk. Additionally, Judge Kosach made
statements regarding another of my clients, Mr. Charles Wiseman and his case. I am not sure if
/(0
______ 1:-----------------
that comment was on the record, however, I believe that it is included. Mr. Wiseman had a very
2 controversial caseinvo/ving judicia1 and court reporter corruption. Judge Kosach made a
3 derogatory comment concerning Mr. Wiseman and his service in Vietnam. This was one of the
4 central issues in the case. Unless, otherwise stated, Judge Kosach made these comments on the
5 record. Eventually, Judge Kosach recused himself in my case against Mrs. Reed. However, he
6 has failed to rel;use himself from my other cases. I have requested a transcript from that hearing
7 and stiB do that transcript. Judge Kosach has failed refused or neglected to provide that
8 transcript to my office.
9 5. Prior,to this incident Judge Kosach presiued over another matter entitled Brignand v.
, .
JO Snyder, CASE NO. 7-07884, Second Judicial District Court. During a hearing in chambers in
11 that maHer, Judge Kosach refused to signan order until he had conversations with my client
12 concerning my client selling him classic baseball cards. See Exhibjt A, attached hereto. During
13 that time I told Jqdge Kosach that his conduct was reprehensible. Following that discussion,
14 Judge Kosach has dismissed several, if not all actions I have had before him or has continued
15 trials without proper cause.
16 6. I do not believe that my clients can receive a fair trial before Judge Kosach because of
17 the disparaging comments he has made and conti niles to make about me.
18 I hereby swear under penalty of perjury that the foregoing is true and correct to the best of
19
20
21
22
23
24
25
26
27
28
,
my knowledge and,
Dated this day of March, 2002.
-
_--011----4:1':----------
----------------------
2
3
4
5
6
7
'8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CERTIFICATE OF S ~ R V I E
Pursuant to NRCP 5, I declare that I am an employee of Mirch & Mirch, over the age of
EIGHTEEN (18) and not a party to this action. In that capacity, I served by United States mail
postage prepaid, a true and correct copy of the foregoing Affidavit to Disqualification Judge
Kosach for bias, upon th,e fol1owing parties at the addresses described below:
Dana h. Morris, Esq.
Newman, Morris & Dachelet, Ltd ..
5440 West Sahara, Ste. 105
Las Vegas, NV .... !! 146
Dated tpis } g day of March, 2002.
1141_____ ,.:' _________ _
-------------------
SUPREME COURT
OF
NEVAI)A
(0) 1947A ...
IN THE SUPREME COURT OF THE STATE OF
KEVIN MIRCH,
Appellant,
vs.
MCDONALD, CARANO & WILSON,
LLP, AND LEIGH GODDARD,
Re ondents.
KEVIN MIRCH,
Appellant
VS.
MCDONALP, CARANO & WILSON,
ts.
KEVIN J. MIRCH, ESQ.,
Appellant,
vs.
ORDER OF AFFIRMANCE
No. 42333 . ,111

No. 43153
No. 45663
FILED
MAR 06 Z008
TRACIE K. LINDEMAN
OLEflKjlF SUPREME COURT
BY ""v . My='
DEPUTY CLERK
This is a' consolidated appeal from district court orders
granting summary judgment, denying relief from judgment under NRCP
60(b), and awarding attorney fees and costs under NRCP 11.1 Second
Judicial District Court, Washoe County; James W. Hardesty, Judge.
lThis is a consolidation of three appeals: Docket No. 42333 (appeal
from the district court's final judgment); Docket No. 43153 (appeal from
order denying motion for reconsideration); Docket No. 45666 (appeal from
sanctions). .
'1"
19
SUPREME COURT
OF
NEVADA
(0) 1947A
INTRODUCTION
! Appellant Kevin Mirch filed various causes of action against
respondent law firm McDonald, Carano and Wilson (MeW). In response,
MeW filed a motion to dismiss. The district court sua sponte converted
the motion to dismiss into a motion for summary judgment and following a ,
hearing, all of Mirch's claims, as well as awarding sanctions
against him. On appeal, Mirch argues that the district court erred: (1) by
I
sua sponte granting summary judgment without providing proper notice,
(2) by denying him due process by precluding discovery, (3) by'
mischaracterizing facts alleged and evidence submitted, and (4)' by
awarding sanctions against him. We disagree.
; We conclude that the district court did not err by not providing
the lO-day notice to Mirch. The record below adequately indicates that
Mirch consented to having the motion to dismiss heard as a motion for
summary We also conclude that the district court did not deny
Mirch due process because the district court allowed Mirch to present
witnesses and fully argue his case. We also conclude that the district
court did not misstate facts or misconstrue evidence submitted. Finally,
we conclude that the district court did not err by awarding sanctions
against MITch after determining that the lawsuit flied was frivolous.
RELEVANT FACTS
The parties are familiar with the facts of this case; thus, we
recount them only as necessary to explain our decision.
Intentionalinterference with contractual relationships
MiTch argued below that MeW intentionally interfered with
his relationship with clients in order to gain unfair advantage against him
in a separate interpleader action to which he was a party. Mirch asserted
below thatMCW interfered with the contractual obligation of a former
2
, I :, ' I
I:' '
SUPRENECOllRT
OF
NEVADA
(0) 1!U7A ..,
client, Dr. Kenneth Frank, to pay Mirch over $1,000,000, by instructing
Frank not' to pay the contingent fee and destroying or hiding the
contingent fee agreement. According to the pleadings, MCW also
instructed Frank to sue Mirch for malpractice. In addition, Mirch claimed
that MCWparticipated in a scheme to cause Denise Reed, another of
Mirch's clients, to renounce her contract with Mirch, thus depriving him of
those fees. Mirch claimed that these actions constituted the requisite
contractual interference and that they were intentionally done to keep
Mirch from 'disclosing Frank's bankruptcy fraud.
Conspiracy to commit bankruptcy fraud
Mirch also claimed that MeW intentionally conspired with Frank to
commit bankruptcy fraud. Mirch alleged that MeW knew Frank had
committed bankruptcy fraud by assigning his assets to others and hiding a
judgment he had won from a separate lawsuit. Mirch alleged that MCW
was aware of the judgment and participated in furthering the fraud by
threatening to use its political influence to end Mirch's legal career
because he disclosed the judgment.
DISCUSSION
This court reviews the grant of summary judgment ,de novo.
2
Summary judgment is appropriate under NRCP 56 when no genuine issue
of material fact exists and the moving party is entitled to judgment as a
matter oflaw.
3
"A genuine issue of material fact is one where the evidence
2Wood v. Safeway. Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029
(2005).
SId. at 731, 121 P.3d at 1031.
3
d-\
: I :
I
SUPREME COURT
OF
NEVADA
(0) 1947,... ...,
o
......
is -such that a reasonable jury could return a verdict for the non-moving
party."4 "'In determining whether summary judgment is proper, the non-
moving party is entitled to have the evidence and all reasonable inferences
accepted as true."'/) "However, conclusory statements along with general
allegations do not create an issue of material fact."6
Notice
Mirch argues that he was denied proper notice for the motion
for summary disposition when the district court sua sponte converted
MCW's motion to dismiss into a motion for summary judgment. Mirch
contends that the district court. improperly granted summary judgment in
violation of NRCP 56, which requires a ten-day notice.
7
We disagree. It is
clear that by agreeing to proceed at the trial court level, Mirch waived his
right to a ten-day notice. 8
- Mirch was fully aware that the motion to dismiss was likely to
be converted into a motion for summary judgment because both parties
requested the district court to consider matters outside of the pleadings.
4Posadas v. City of Reno, 109 Nev. 448, 452, 851 P.2d 438, 441-42
(1993).
5State, Dep't Transp. v. Central Telephone, 107 Nev. 898, 901, 822
P.2d 1108, 1109 (1991) (quoting Wiltsie v. Baby Grand Corp., 105 Nev.
291, 292, 774 P.2d 432, 433 (1989. -
BMichaels v. Sudeck, 107 Nev. 332, 334, 810 P.2d 1212, 1213 (1991).
7See NRCP 56(c).
8We also note that while NRCP 56(c) requires a ten-day notice in a
motion for summary judgment, the failure to comply with the notice
requirement is subject to the harmless-error rille. See Exber. Inc. v.
Sletten Construction Co., 92 Nev. 721, 733,558 P.2d 517, 524 (1976).
J
SuPREME CoURT
OF
NEVAbA
(0)194711 ....
Mirch even asked the district court if he could present witnesses in the
event the district court chose to treat the motion to dismiss as a motion for
summary judgment. When the district court notified Mirch of its intent to
"convert" the motion to a motion for summary judgment, Mirch did not
object. Instead, Mirch proceeded to produce the testimony of two
attorneys, his law partner and then fully participated in the hearing. In
light we conclude that Mirch the notice requirement.
9
Discovery pursuant to NRCP 56(f)
Mirch argues, without providing any factual or legal analysis in
support of his contention that the district court erred in denying discovery.
We disagree .
. This court reVIews a district court's decision to refuse a
continuance pursuant to NRCP 56(f) for an abuse of discretion. 10 "NRCP
56(f) permits a district court to grant a continuance when a party opposing
a motion for summary judgment is unable to marshal facts in support of
9See Cheek v. FNF Constr .. Inc., 112 Nev. 1249, 1251, 924 P.2d
1347, 1351, (1996) (holding that the notice requirement of NRCP 56(c) is
not violated if the opponent is not prejudiced by the shortened notice
period); See also Vashi v. Charter Tp. of West Bloomfield, 159 F. Supp. 2d
608, 612 (E.D. Mich. 2001) (determining that the district court was not
required to give parties prior notice of conversion of motion to dismiss to
one for motion for summary judgment when parties were not likely to be
surprised by conversion, given that defendant moved for dismissal and
parties relied on matters outside the pleadings).
lOAviation Ventures v. Joan Morris. Inc., 121 Nev. 113, 118, 110 P.3d
59, 62 (2005) (citing Harrison v. Falcon Products, 103 Nev. 558, 560, 746
P;2d 642, 643 (1987).
5
.,.,', 'C'"
SuI'flEME COURT
01'
NEVADA
(U)I9411\ ....
its opposition."ll "[A] motion for a continuance under NRCP 56(f) is
appropriate only when the movant expresses how further discovery will
lead to the creation of a genuine issue of material fact."12
In this case, during the hearing, Mirch could not articulate
how deposing two attorneys, seventy creditors, and one bankruptcy expert
would lead to a genuine issue of material fact. Further, the district court
determined that since the federal court had already held that there was no
conspiracy to commit bankruptcy fraud, the creditors' and the attorneys' '
testimony could not possibly sustain the conspiracy to com1p.it bankruptcy
fraud c1aiI1:l' We agree and conclude that the district court did not err in
denying discovery.
Mischaracterizing the facts alleged and evidence submitted
Mirch also argues that the district court erred in not reviewing
the facts and evidence of the case in the light most favorable to him. Here,
the district court granted summary judgment concluding that Mirch had
no legal basis for his claims against MeW and that Mirch could offer no
factual basis to support his claims. We agree with the district court.
In order to defeat summary judgment, the non-moving party
cannot rest on mere allegations. The party opposing summary disposition
HId. at 117-18, 110 P.3d at 62 (citing Ameritrade, Inc. v. First
Interstate Bank, 105 Nev. 696,699, 782 P.2d 1318, 1320 (1989).
12Aviation Ventures, 121 Nev. at 118, 110 P.3d at 62 (citing
Bakerink v. Orthopaedic Associates, Ltd., 94 Nev. 428, 431, 581 P.2d 9, 11
(1978.
6
SUPREME COURT
Of
NEVAI)A
(0; IQ47A ...,
must set forth specific facts to support genuine issues of material fact that
would warrant a trial. 13 Mirch simply failed to do so.
. A. Collateral estoppel
Given the federal court's ruling in the interpleader action the
very basis of Mirch's claim against MeW, that Frank had committed
bankruptcy fraud by not disclosing the and that MCW and
furthered the fraud, is without merit. In the interpleader action,the
federal court held that because Frank had no duty to disclose the
judgment acquired after he filed bankruptcy, he did not commit
bankruptcy fraud.
14
Thus, Mirch, as an interVenor in the action, would be
collaterally estopped from bringing the same claim in state court.
15
Similarly, Mirch's whistle blower claim is a non-cognizable claim because
a whistle blower claim under NRS 281.641 protects only a state employee
or officer for disclosing unlawful activities. 16
. Assuming arguendo that Frank had a legally binding duty to
disclose the judgment and that MeW conspired with Frank in
.perpetuating the bankruptcy fraud, Mirch had no standing to bring the
claim since he was not a creditor in Frank's bankruptcy case. In addition,
lSCuzze v. Univ. & emty. CoIl. Sys. of Nev., 123 Nev. __ , 172 P.3d
131 (2007).
14Kevin Mirch v. Kenneth Frank, Advanced Physician's Products,
Inc., U.S. District Court Case No. CV-N-OI-0443, 2003.
15S
ee
City of Reno v. Nevada First Thrift, 100 Nev. 483, 488, 686
P.2d 231, 234 (1984).
I
I
16Simonian v. Univ. & Cmty.Coll. Sys., 122 Nev. 187, 197, 128 P.3d
1057, 1064. (2006); see also Hartman v. Mathis & Bolinger Furniture, 282
Cal. Rptr. 35, 41 (Ct. App. 1991).
7
':'-;
,
SUPREME CoURT
OF
NEVADA
(0) 1941A ..,
the state court lacks jurisdiction to hear matters concerning conduct that
occurred during the bankruptcy case.l
7
Thus, we conclude that the district
court did not err in dismissing the conspiracy and whistle blower claims.
B. No legal and factual basis for the contractual interference claim
We also conclude that Mirch's allegation that MCW
intentionally interfered with his contractual relationship with his clients,
Frank and Reed, lacks merit. The required elements of intentional
interference with a present contractual relationship are: (1) a valid
contract between the plaintiff and a third, party; (2) the defendant's
knowledge of the contract, (3) intentional act designed to interfere with
the contract; (4) actual disruption of the contract; and (5) the resulting
damage.
IS
Here, the district court correctly found that Mirch could not,
as a matter of law, establish the elements of an existing contract and
therefore, an intentional' act of interference .. As to Mirch's purported
existing contract with Frank, the very crux of the disputes between Mirch
and Frank was whether a valid contmgent fee agreement existed between
the two. Furthermore, Frank denied the existence of a contingent fee
agreement long before MCW replaced Frank's former attorney, In the
17MSR Exploration, Ltd. v. Meridian Oil, Inc., 74 F.3d 910, 916 (9th
Cir. 1996)' (holding that state maliCious prosecution actions for events
taking place within bankruptcy court proceedings are preempted);
Gonzales v. Parks, 830 F.2d 1033, 1035 (9th Cir. 1987) (holding that state
courts lack jurisdiction over claim that filing of a bankruptcy petition is an
abuse of process).
ISJ.J. Indus., LLC v. Bennett, 119 Nev. 269, 274, 71 P.3d 1264, 1267
(2003).
8
, , I
i '.' I
r '
SUPREME COUAT
o.
NEVAOA
(0) ~ 7 ~ .,.,
interpleader action, before MCW's involvement, Frank argued that he had
no contingent fee agreement with Mirch and that he was pleading
malpractice as an affirmative defense against Mirch's. Thus, the
chronology of events undermines Mirch's suggestion that MCW claims
intentionally interfered with his purported contract with Frank. For
Mirch to establish that MCW intentionally interfered with his contingent
fee agreement with Frank, Mirch would have to prove that MCW actively
induced Frank to break an agreement.
19
Clearly, MCW did not induce
Frank to renounce the existence of the agreement because, as Mirch
admits, Frank denied the existence of the contingent agreement long
before MCW became Frank's counsel. The same fact that undermines
Mirch's purported contractual relationship with Frank also undermines
his purported relationship with Reed. Like Frank, Reed was already
involved in a legal dispute. regarding her agreement with Mirch well
before MCW began representing Frank. Therefore, we conclude that the
district court did not err dismissing the intentional interference claim.
NRCP 11 sanction
Mirch argues that the district court erred in awarding NRCP
11 sanctions against him. We disagree. The district court's decision to
award NRCP 11 sanctions is reviewed under an abuse of discretion
standard.
20
NRCP 11 sanctions, including attorney fees, may be imposed
on a litigant for filing a frivolous lawsuit that was not "'well-grounded in
I9See Pacific Gas & Elec. v. Bear Stearns & Co., 791 P.2d 587, 591
(Cal. 1990).
2Bergmann v. Boyce, 109 Nev. 670,676,856 P.2d 560; 564 (1993).
9
Ii .
SUPREME COURT
OF
NevADA
(O)J947A .....
I
o
o
fact and ... warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law."'21
For the reasons discussed above, the district court was correct
in concluding that the entire action, including the conspiracy to commit
banlu'uptcy fraud was clearly frivolous. Mirch knew or should have
known tha.t Frank had no duty to disclose the judgment to the creditors, in
light of the federal court's decision. Thus, Mirch was estopped from
bringing the same claim in state court.22 Despite this, Mirch brought the
,same claim in the district court and ultimately admitted that he had done
no legal research to determine whether his claim, that the non-disclosure
a fraud under the pertinent bankruptcy code, had any merit.
23
Therefore, the district court was correct in awarding NRCP 11 sanctions
against Mirch.24
21Id. (quoting Golden Eagle Distributing Corp. v. Burroughs Corp.,
801 F.2d 1531, 1533 (9th Cir. 1986) (quoting FRCP 11.
22See U.S. ex reI. Grynberg v. Praxair, Inc., 389 F.3d 1038, 1058
(10th Cir. 2004) (noting that sufficient justification for an award of
attorney fees as a sanction does. not include merely losing the case, but
may include persisting with a suit in which a lack of merit has become
apparent) (citing Christiansburg Garment Co. v. EEOC., 434 U.S. 412, 421
(1978.
23We also note that the district court found the entire complaint to
be "most scandalous," and we admonish appellant that this court need not
consider arguments that lack any legal or factual analysis. See SIIS v.
Buckley, 100 Nev. 376, 382,682 P.2d 1387, 1390 (1984).
24'frustees v. Developers Surety, 120 Nev. 56, 63, 84 P.3d 59, 62-63
(2004) (citing S.B. 250. 72 Leg. (Nev. 2003); 2003 Nev. Stat., ch, 508, 153,
at 3478).
10

. ,

"
I
SUPREME COURT
OF
, NEVADA
11I41A...,
CONCLUSION
We conclude that the district court's did not err in granting
summary judgment after it sua sponte converted MeW's motion to dismiss
into a motion for summary judgment. We also conclude that the district
court did not misstate or misapprehend facts or evidence submitted.
Finally, because the district court correctly concluded that the lawsuit was
frivolous, the district court did not err awarding sanctions against Mirch.
~ __ -=---'--";L..-""::"'-=---__ = - - C. J.
Saitta
cc: Second Judicial District Court Dept. 7, District Judge
Second Judicial District Court Dept. 9, District Judge
Philip A. Olsen, Settlement Judge
Mirch & Mirch
Laxalt & Nomura, Ltd.lReno
Washoe District Court Clerk
11
.... : .....
,-'.'
J.
J.
" , .... ,.
;',
, I ~ ,'':' :..), ~ '.' ,
. , ~ II \l , ...
. ., . . ~ :
..
30
..
'- .
/A" ,

2
3
4
IN THE SUPREME COURT OF THE STATE OF NEVADA
5 KEVIN MIRCH,
6
7 vs.
'8 MCDONALD, CARANO & WILSON, LLP
AND LEIGH GODDARD,
,9
10
Respondents.

11 KEVIN MIRCH,
, 12 Appellant,
vs.
13
MCDONALD, CARANO & WILSON, LLP
14 AND LEIGH GODDARD," ,
15
16
Respondents. " , I
________
KEVIN MIRCH, ESQ. ,
17
Appellant, ,
18' vs.
19 MCDONALD, CARANO & WILSON, LLP
AND LEIGH GODDARD, '
Respondents.

APR 11 ZOO
TRACIe K. UNDEM
CLERK OF SUPREME

OEPUTY ClERK
No. 42333
No. 43153
No. 45663
20
21
22
23 '
, APPELLANT'S PETITION FOR REHEARING
REQUEST FOR HEARING EN;BANC
24
25
26
27
28
,COMES,NOW, Appellant, Mirch, by and through his attorney of record, Mirch and
M.irch, Marie C. Mirch, Esq., and petitions this Court pursuant to N.R.A.P 40(c)(2) to rehear its
, .order of Affirmance filed on March 6, 2008; ("Order"), for the re'asons that this court (I) overlooked
, .
3\
.'
. :
".
'. ]. to follow a procedural rllie (NRCP 56), and a decision directly controlling a dispositive issue in the
2 case.
3
This is an ugly case. A lawyer sued opposing counsel for threats that were made, which have
4. come to fruition (sued for malpractice, criminal charges,and disbannent). The district court took
. ,
5 a renegade approach to the matter, but that same district court judge n0\Y sits on the Nevada Supreme
6 Court yielding tremendous power. The ugliness of the facts in this case have caused the district
. 7 court, and now the Nevada Supreme Court, to dispense with constitutional rights, legal rights,
8 discovery rights, and well established principals of law in order to justify a speedy disposition in
9 favor Of the Respondents .
. lOOn March 6,)008, this Court. entered an Order affirming the district court's sua sponte
11 in favor ofthe prestigious law finn of McDonald, Carano, Wilson. The Court concluded that
12 the district court did not misstate or misapprehend facts or evidence submitted. Finally, this Court
13 agreed with the district court's conclusion that the lawsuit was frivolous, and affinned the draconian
14 . award of sanctions against Mr. Mirch.
15 In reaching this conclusion, this .Court overlooked and misapprehended several material
. .
16 matters. Accordingly, this Petition for Rehearing should be granted. See, N.R.A. P. 49((:)(2).
17 1.
The Order Misapplied Well EstabHshedLaw Directly Controlling the Outcome of the
20.
21
22
23 .
24
25
26
27
28
.Case. .
,
summary judgment, this Court fell to Respondents' red-herring argument. (i.e., character
assassination ofMr. Mirch) as a basis for summary judgment, and threw the well established legal
requirements of due process, notice, and summary judgment out the window. By excusing its fellow
Justice's violation of Mr. Mirch's constitutional guaranty of due process, the Court violates the
United States and Nevadas Constitution,and the controlling case law established in Celotex Corp.
v. Catrett, 477 U.s. 317, 326, 91 L.Ed. 2d 265 106 S; Ct. 2548 (1986) (court may enter
judgment sua sponte as long as the losing party was on notice he had to come forward with.illofhis
2
r'
:.i-',
t,.
l' evidence);Soebbingv. Carpet Barn, Inc .. I 09Nev. 781847 P.2d 73 1 (1993)(Regardless ofaclaim's
2 merit, .a district court may not sua sponte enter summary against it until the law requiring
3 notice and a reasonable opportunity to be heard.
4
5
6
.7
8
9
In this case, there is not evidence that Mr. Mirch knowingly and voluntarily waived his right
to constitutionally adequate notice. (i.e., to change a motion to dismiss and for sanctions to one for
summary jUdgment). To the contrary, throughout the record, Mr. Mirchasserts his right to notiCe.
Opening Briefat 2122. Hearing Transcript at 67:7-19,pp. 69-74. Mr. Mircheven moved to strike
the evidence Respondents offered in support of their motion to dismiss, and the Respondents
responded that their evidence was not submitted in support of the motion to dismiss, but to support
10. the motion for sanctions. Opening Brief at p. 10 ..
II This Court made a factual error in stating that Mr. MiTch waived notice. Order at 4. Waiver
12 is "an intentional relinquishment or abandonment of a known right or privilege." D.H. Overmyer
. .
13 Co. Inc. GfOhio v. Frick Co., 405 U.S. 174, 185, 92 D. S.Ct 775, 782,31 L.Ed.2d 124 (1972),
14 Johnson v. Zerbst, 302 U.S. 458,462 (1938); and as the United States Supreme Court has said in the
15. civil area, "we do.not presume acquiescence in the lost of fundamental rights, "Ohio Bell Tel: Co.
16 v. Public Utilities Comm 'n, 301 U.S. 292, 307(1937). That standard is not satisfied here. The
17 . fundamental requirement of dUe process is "the opportunity to be heard." Grannis v. Ordean,)34
18 U.S. 385, 394. It is an opportunity which must be granted at a meaningful time and in a meaningful
19 manner. Armstrong v. Manzo Et. Ux, 380 U.S. 545, 85 S. Ct. 1187, 13 L. Ed. 2d62 (1965). Mr.
20 Mirch went to the courthouse prepared fora motion to dismiss. Mr. Mirch did not have all of his
21 evidence with him to oppose a summary judgment motion, because there was no notice that a
22 summary judgment was to be heard. The record confirms that the hearing was on a motion to
23 dismiss. The d'ue process requirement of adequate notice is not waived by appearance at a hearing
.24 In Re Gault, 387 U.S. 1,87 S.Ct. ]428,18 L. Ed. 2d 527 (1967). Furthermore, converting the
25 motion well into the hearing was not noticeat a meaningful time, and provided Mr. Mirch no
.
. 26 opportunity to retrieve his evidence. In the present case, the trial court fully denied this right to Mr.
27
28
3
1 Mirch, when even at the hearing, the district court expressed its indecision in whether it would
2 convert the motion to dismiss into a summary judgment:
3 THE COURT: Well, the Court probably will convert this toa motion for
summary judgment. Theparties have referenced a lot of material outside of the
4 pleadings,. and so I might be inclined to do that. .
5 Transcript of Hearing at 59: 6- 9.
6 In fact, throughout the hearing, the district court acted as if it were ruling on a motion to '.
7 dismiss:
8 THE COURT: Well, at that point let's suppose, as Lam required to do on a
motion to dismiss ...
9
TrariScript at 33;24-34.1
10
THE COURT: So even if I accept astrue that Ms. Goddard and her firm here
11 engineered the bankruptcy fraud you have described, where is the hann?
12 Transcript 65.: 10-15
13 Well into the hearing, the district court states that it is "compelled to consider the motion as
14 one-for summary judgment". Transcript 76:19-20, and goes forward with a hearing despite Mr;
.15 Mirch's prior objections. This sua sponte act of the district court violated Mr. Mirch's right to ten
16 days' notice, whichthis Court finds.acceptable. Order alp. 4. Even if this Court is attempting to
17 . overrule the ten day notice requirement discussed in Soebbing, such a step should not be
18 accomplished by a three-justice panel in an unpublished order. Cf Matter of the Marriage ofCray,
19 867, PJd 291,297 (Kan. 1994) (if an appellate court decides to overrule another panel of the same
, ..
20 appellate court, it "should be done, at a minimum, by an en bane review and decision").
21 The absence of notice to Mr. Mirchis no excusable even under the hannless error rule. In
22 that. regard footnote 8 at 4 of the Order states that the failure to comply with the notice
23requirernent ofNRCP is subject to Exber, Inc. v. Sletten Construction Co. 92 Nev'
24 72L 558, P.2d 517, 524 (1976). In Exbef,a motion for summary judgment in favor of a party
25 'Joining in anotherparty's motion at the hearing was not prejudic'ial to the non-moving party because
26 the court already had before it a motion fCir summary judgment which was joined at the hearing.
. .
27
28
, 'f'
4
. ':,-" . . -.
:.?' '" j...., ::', \ '
, ..
. , 2
3
4
5
6
7
8
'9
10.
11
12
13
14
.. .
Unlike the present case, the parties know that they were going to the courthouse to defend a motion
for summary judgment, so there was no prejudice .. The Court may allow a shortening of the 10 day
notice requirement, but only jfthe opposing party would not suffer prejudice; Cheek v. FNFConstr.
lnc. 112 Nev. 1249, 924 P.2d 492 (1954). In this case, Mr. Mirch was given no notice whatsoever,
and was extremely prejudiced. He was denied any discovery, the district court cut short questions
at the heating (Opening Brief 23-26) (Transcript 85-87, 97), !and denied leave to file a written
opposition and evidence against summary judgment. That evidence included, but was not limited
to: an affidavit of a witness who heard Ms. Goddard tell Dr. Frank to destroy his fee contract,
testimony of Marilyn Bulloch thatDr. Frank told her that he was told by his attorney to destroy the
contract, ex,pert witness testimony by affidavit of the bankruptcy issues, and the controlling order
offhe U ,So Bankruptcy Court in the Frank bankruptcy case. VIII AP 1604.
The district court's denial of due process to Mr. Mirch was not harmless error. At a
this Court should have reversed the order of summary judgment and remand the case to
provide Mr. Mirch the opportunity to file an opposition to motion for summary judgment.
15.2.
16.
The Order MisappIiedor Overlooked a Procedural Rule, Directiy Controlling
a Dispostive Issue in the Case . .
a. Notice ReqUirement
17
In determining whether Petitioners were entitled to summary judgment, this Court's Order
18
correctly states this standard at page 3 and 4 of the Order. However, later in the Order, the Court
.
. excuses the notice requirements ofNRCP 56, United States Supreme Court, and Nevada Supreme
W . .
21.
22
Court case law by finding that Mr. Mirch waived the same. Order at p. 4.
The Order overlooked material facts and overlooked and misapplied NRCP 56 and the
applicable Nevada $tandard for granting summary judgment. Mr. Mirch was entitled to ten days'
23
merits. Cheekv. FNFConstr. Inc., 112 Nev 149,929, P.2d 1347(1966) .
. 24
Mr.Mirch specifiCalIy requested notice. Opening Brief at 21-22, Hearing Transcript at 67: 7-19.
25
pp.69-}4.
"26
For these reasons, to the extentthat the order concludes that Appellant waived notice'
27
28
and suffered no prejudice, it overlooks and misapplies NRCP 56 and overlooks material facts in the
5

1 record.
2 b. . nurden on Moving Party
3 Furthermore, the Respondents never moved for summary judgment. Respondents never met
4. their burden of affirmatively demonstrating the absence ofa genuine issue of material fact. Celotex
5 Corporation v. Catrella, supra. Opening Brief at 23. In Celotex Corp. v. Catrett, 477 U. S. 317,325
6 (1986), the'Court specifically stated.
7
8
9
Of course, a party seeking summary judgment always bears the initial responsibility
of informing the district court of the basis of its motion, and identifying those
portions of the .pleadings, depositions, answers to interrogatories, and admissions on
. file, together with affidavits, if any, which it believes demonstrate the absence of a
genuine issue of mate'rial fact. .
10 This Court has ignored this standard.
'. ,
11 . Inorder for a Motion for Summary Judgment to granted,evidence must be submitted. The
12 evidence submitted is SUbject to special rules ,under NRCP 56(e): Under Rule 56, the moving party
13 mustide-ntify and o f f ~ admissible evidence of specific facts showing that there is not genuine issue
14' for trial. See, Anderson v. Liberty Lobby, 477-U.S. 242, 91 L.Ed2d 202 (1986); Matsuhita Electronic
l5 Industrial Co. v. Zenith Radio Corp., 475 u.s. 574, 89L.Ed. 2d538; 106S;Ct., 1348 (1986).
. .
16 . Summary judgment cannot riot lie where there is the slightest doubt as to the operative facts'.
17 Washoe Medical Center v. Churchill County, 108 Nev. 622, 625, 836 P.2d 624, 626, (1992). The
18 courts have also stated that summary judgment should not be granted unless the truth is clear, or
, .' ..
19 unless the moving party demonstrates a right to a judgment with such clarity that there is no room
20. for controversy, and the opposing party cannot prevail, Paller v. Columbia Broadcasting Systems,
21' Inc., 82 S.c. 486, 368 U.S. 464, 7 L.Ed.2d 458. This Court misapplied this standard in affirming
22 the district court's order.
23 The Respondents did not move for summary judgment; they moved to dismiss. They
. 24 expressly restricted the matters outside the pleadings to their motion for sanctions,and Mr. Mirch
25 responded as such: Opening BrieJ at 21. There waS absolutely no evidence offered in support of
26 summary judgment. The Respondents did not ev'eii deny the threa.ts which Mr. Mirch alleged in this
27
28
6
e.
lawsuit. By affirming summary judgment in the.absenceof any:evidence supporting the same, the'
2 Court ignored the requirements ofNRCP 56.
3 c. The Court Failed to View the Evidence in Favor of the Nonmoving Party'
4 . In deciding a motion for summary judgment, the non-moving party is entitled to have
. .
5 evident and all reasonable inferences accepted as trued. Order at p.' 4 Posadas v. City of Reno, 109
6 Nev. 448, .452,851 P.2d 438 ,441-42 (1993). The Court failedto exercise this standard .
. 7 "[T]he district court correctly found that,rvlirch could ndt, as a matter oflaw, establish the
.' . I .
8 elements of an existing contract and therefore, an intentional actofinterference. As to Mr. Mirch's
9 purported existing contract with Fran, the very crux of the disputed between Mirch and Frank was
10. whether a yalid. contingent fee existed between the two". Order p. 8. The Court
II recognizes tluit there was a dispute between Mirch to whether a contract existed, yet
. 12 fails to view this in the light most favorable to Mirch'(i.e., that a contract existed). Rather the Court
13 accepts Frailk's position that there was not contract. The existence of the contract itself was a
14 materialfact in dispute which was not the proper subject fordisrnissal through summary judgment.
. 15' 3.
16
17
The Court Has Misapprehended Material Facts
1. Mr. Mirch did not waive notice .. See above.
2. Mr. Mirch did not ask the district court if he could present Witnesses in the event the
18 district court to treat the m'otionto dismiss as amotion for summary judgment. Order p 5. The
19 witnesses were. subpoenaed and presented solely to defeat the mot!on for sanctions. Reply Brief p.
20 5.
21 . 3. . The federal court had not "already held that there was no conspiracy to commit
22 bankruptcy fraud" Order p 6. The federal order / A P P J 07- 114, does not even approach the issue
23 of bankruptcy fraud.
24 4. Mr. Mirch was not a party to 'the federalaction. that rendered the decision pertaining
25 to; Frank's bankruptcy. Order p 7 The Court cites in 14 to the federal suit where
26 Mirch sued Frank, Mirch v. Frank U.S. District Court Case No .. (2003). This is not
. . . . . . . . .
27
28
7
37
o
o
1 the case in which the federal court entered an -order pertaining to assets of Frank's bankruptcy estate
2 in September :WOO. That was case Universal Sales, Inc. v.Advanced
3 Physicians Products, Inc .. Mr. Mirch was not a party to that case. thisisa mistake offact which this
4 Court used to determine that the conspiracy claim was barred by collateral estoppel and that"Mirch
5 knew or should have known that Frank had no duty to disclose the judgment to the creditors, in light
6 ofthefederalcourt's decision". Order p J O. The Court further affirmed the NRCP I sanctions against
7 Mirch, findingthe case was frivolous, also based on this mistake of fact and collateral estoppel. The
8. Court cannot affip11 based on these erroneous facts.
9
5.
The Court totally ignored the order of the United' States Bankruptcy Court, Central
10. District of Callfornia which required Dr. Frank to tum all of his assets over to the bankruptcy trustee.
11 Opening Briel p. 5. Contrary to the Court's interpretation, Mr. Mirch was not asking the district
12 court or this Court to make a ruling pertaining to the bankruptcy estate, butto recognize that there was
13 a valid order sti 11 in effect which controlled. Id. When this fact is included in the analysis, the
14 Court cannot affirm the finding that this case was without merit and lacked factual and legal support.
15 4 ..
_ The Court has overlooked-Nevada Case law Concerning the WhistIeblower claim
16
17
18
19
20
21
22
23
24
25
26
27
28
I
In the Order of Affirh1ance, the Court states that "Mirch's whistle blower claim is a non"
cognizable claim because a whistle blower claim under NRS 281.641 protects only a state employee
or officer for disclosing unlawful activities". Order alp 7. ThiS holding ignores existing state law -
which recognizes a 'whistle blower claim outside of the employment context and outside NRS
281.641. The case that this Court totally ignores and fails to folldw is CJark v. ColumbialHCA,117
Nev. 468; 25 P.3d 215 (2001). Opening Briefat p49. This Court has spedfically recognized a whistle
blower claim outside of NRS 281 ;641 and outside of the employment context:
In his complaint, Clark has alleged tortuous conduct by respondents in
the peer review board's decision to tenninate his,staff privileges. He
has also alleged that resp6ridentstenninated his staff privileges
. because he reported violations of medical standardS - conduct we
protect as a matter of public policy as whistle blowing. See Wiltsie
Yo Baby Grand Corp., lOS Nev. 291, 293, 774 P.2d.432, 433 (1989);
seealsoAllumv. Valley Bank of Nevada, 114Nev, 1313, 1321-22,970
P.2d 1062, 1066-67 (1998) Because Clark has conduct that
8
3<6
....
, 1
2
3
4
5
6
9.
10
11
12
13
14
.. 15
",,: ..
'e
is actionable under our state laws, this court has jurisdiction to hear
this,case,
Clark, supra at 476,
This COUl1 ignores other statutory authority for a whistle .blower claim, NRZ 41.635 through
, J,'
670, the anti-slapp statutes. Reply Brief at p 9,
If this C;::oul1 is attempting to overrule Clark and NRS 41.635 by finding that the only
published decisiol].
TheCciul1's decision to ignore the holding in Clark and recognize controlling statutory and
caselawperrnitting a whistle blowing claim should be revisited by the Court as it is the basis fot the
, 1
I
award of sanctionsagainstMr. Mirch
CONCLUSION
The Order of Affirmance misinterpreted' relevant facts,' misapplied well established law,
denied Mr. Mirch due process, and misapplied NRCP 56. The Court cannot condone total
abandonment of basic legal principals because the district court judge now sits as constituent of the
16
Court, and the subjectmatter is ugly. The only way the rulings of this court and the district court can
17
. . be justified is if the Court put blinders oil to the law and facts of this matter. The record does not
18
19
20
21:
23
24
support the absence of notice, or a that despite the ab,sence of notice, Mr. Mirch was not
prejudiced. Mr. Mirchhas beeJiprejudiced by not only denial ofllis right to petition the state for his
grievance, but also through sanctions in excess of$60,000 and the stripping of his license to practice
court's action wasul1Constitutionai.
III' :
., Iii.' '.' '
.25." "; .
, III
'26
//i :
27
28
9

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
For each of these reasons, and in light of the discussion above, this Court should grant
. Petition for Rehearing.
. RESPECTFULLY SUBMITTED this_j _, day of &pC; /' . 2008.
..
10
MIRCH & MIRCH
_
MARIE C. MIRCH, ESQ.
SB}N: 6747
320lFlint St.
Reno, NV 89501
Tde: (775)324-744
. Attorney for Appellant
, ::',::'t. Y .' ,'",: ... '.

2
3
4
.5
6
7
8
."
9
10.
11
12
13
14
IS'
16
17
18
19
20
21
22
. 23
24
25.
26
27
28
,cERTIFICATE OF COMPLIANCE
. I. hereby certify that I have read this APPELLANT'S PETITION FOR REHEARING,
REQUEST FOR HEARING EN BANe, and to the best of my knowledge; infonnation, andbelief,
it is not frivolous or interposed for any improper purpose. I further certify that this petition complied
with all applicable Nevada Rules of Appellate Procedure, in particularN.R.A.P.28(e), which requires
ever assertion inthe petition regarding matters in the record to be supported bya reference to the page
. of the transcript or appendix where the matter relied on is to be found. I understand that! may be
subject. to sanctions in the event that the accompanying petition is not in conformity with the
requirements of the Nevada Rules of Appellate Procedure.
DA TED thIs _'_1 day of frYJ' , 2008.
11
MIRCH & MIRCH

SBN: 6747 .
320 Flint St
Reno, NY 89501
(775) 324-7444
Attorneys for Appellants.
I
..
,.
1
2
3
4
5
6
7
8
9
10
11
.12
13
. 14
. 15
16
17
18
19
20
21
22
23
24
25
26
27
28
AFFIRMATION
Pursuant to NRZ 239B.030
The. undersigned does hereby affirm that the preceding document, APPELLANT'S
PETITION FOR REHEARING, REQUEST FOR HEARING EN BANe, filed in Case No.
42333,43153 an'd 45663 , does not contain the social security number of any person.
DATED t j ~ L day of 0{bJ ,2008.
LA W OFFICE OF MIRCH & MIRCH
12
't,
.....
r
2
3
4
5
6
7
8
9
10
11
12
13
14
15"
16
17.
18
19
20
. 21
22
23
24
25
f:
26
,

r
27
28
CERTIFICATE OF SERVICE
to'NRCP 5(b), I certify that I am an employee of Kevin J. Mirch, over
the age of eighteen, and not a party to this On the date set forth below, mailed
postage prepaid, a true and correct copy of the foregoing APPELLANT'S
: ,
PETITION FOR REHEARING, REQUEST FOR ENBANC, in an
,2008.
I '
13
'J'
' .J
l,
I
SUPREME COURT
OF
NEYADA
(0) 1947A ..,.
. I
e,
F I LED
08-1837"UG 1 8 2008
HOWARD W
IN THE SUPREME COURT OF THE STATE OF
PU
- '
KEVIN MiRCH,
Appellant,
VS.
LLP,' AND LEIGH GODDARD,
Respondents.
KEVIN MIRCH,
Appellant
VS.
Respondents.
Appellant,
vs.
Respondents.

No. 42333 FilE
No. 45663
ORDER DENYING REHEARING
I Rehearing denied. NRAP 40(c).
It is so ORDERED.
, C.J.
Gibbons
Cherry Chu.7
J.
c:::U
...
J .
Saitta
.'
',"
- - - - - - - - - - - - - - ~ - - - - - - -
'cc: Second Judicial District Court Dept. 7, District Judge
SecoIldJudicia} District Court Dept. 9, District Judge
Philip A. O l s ~ n Settlement Judge
Mirch & Mirch
Laxalt & Nomura, Ltd.lReno
Washoe District Court Clerk
2
'. '. ~ , .
- "
" .. .;.
~ - - . . ",-=-;
(0
o
I I
FILED
1 Case No: N03-34-20
2
3
4
5
6
7
8
9
10
STATE BAR OF NEVADA
NORTHERN NEVADA DISCIPLINARY BOARD
STATE BAR OF NEVADA,
Complainant,
vs.
)
)
)
)
)
)
)
________ ___________ )
DESIGNATION OF WITNESSES;
SUMMARY OF EVIDENCE
PLEASE TAKE NOTICE that the following is a list of witnesses and a summary
of evidence which may be offered against Respondent at the time of the formal hearing
11 '
12 on the above-entitled Complaint.
13
14
1.
WITNESSES AND BRIEF STATEMENT OF FACTS
Dennis L. Kennedy, Esq. is anticipated to be called as an expert witness
15 to corroborate the findings of fact and conclusions of law made by Judge James
16 Hardesty in the Order filed October 9, 2003 which is the underlying basis of the State
17 Bar's Complaint in this matter and which is incorporated by reference in the State Bar's
18 Complaint.
19 2. Bruce Laxalt, Esq. is anticipated to be called as he was legal counsel for
20 de.fendants in the matter which is the underlying basis of the State Bar's Complaint,
21
22
23
24
specifically, the matter of Kevin Mirch v. McDonald, Carano & Wilson, LLP., and Leigh
Goddard, Case No. CV02-05644, in the Second Judicial District Court of the State of
Nevada in and for the County of Washoe. Mr. Laxalt is anticipated to testify concerning
legal action taken as counsel for defendants and the procedural history of the
25 underlying matter and the related federal litigation known as Kevin Mirch v. Judy Frank, 4 7
-2-
240
o o
. 1 Kenneth Frank, Marilyn Bulloch, Advanced Physician Products, Inc., Does I-X and
2 Kevin Mirch v. McDonald, Carano & Wilson, Pat LundvaII, Leigh Goddard, Emanuel
3 Kopstein, Carey Gatenby, RC International, Gary Hill, and Doe Attorneys 1-10, Case
4 No. CV-N-01-0443 ECR (RAM), in the United States District Court District of Nevada.
5 He will also testify regarding the effect Respondent's actions had on his clients, the law
,
6 firm of McDonald, Carano & Wilson and Leigh Goddard, Esq.
7
3. Leigh Goddard, Esq. is anticipated to testify as she is the only named
8 individual defendant in the underlying matter. She is antiCipated to testify regarding the
9 effect Respondent's conduct had upon her professionally and upon the underlying
10 matter as well as related federal litigation in the matter known as Kevin Mirch v. Judy
11
12
13
14
15
16
17
18
19
20
21
Frank, Frank, Marilyn Bulloch, Advanced PhYSician Products, Inc., Does I-X
and Kevin Mirch v. McDonald, Carano & Wilson, Pat Lundvall, Leigh Goddard, Emanuel
Kopstein, Carey Gatenby, RC International, Gary Hill, and Doe Attorneys 1-10, Case
No. CV-N-01-0443 ECR in the United States District Court District of Nevada.
4. A member of the staff of the State Bar of Nevada Ethics Department is
expected to testify as Custodian of Records.
DOCUMENTARY EVIDENCE
1. Pleadings, Orders, transcripts of hearings, and any exhibits thereto from
the following:
A. The matter which is the underlying basis of the State Bar's
Complaint, specifically, the matter of Kevin Mirch v. McDonald, Carano & Wilson, LLP.,
22
Leigh Goddard, Case No. CV02-05644 in the Second Judicial District Court of the State
23
of Nevada in and for the County of Washoe.
24
II/
25
-3-
241
o
1 B. The related federal matter known as Kevin Mirch v. Judy Frank,
2 Kenneth Frank, Marilyn Bulloch, Advanced Physician Products, Inc., Does I-X and
3 Kevin Mirch v. McDonald, Carano & Wilson, Pat Lundvall, Leigh Goddard, Emanuel
4 Kopstein, Carey Gatenby, RC International, Gary Hill, and Doe Attorneys 1-10, Case
5 No. CV-N-01-0443 ECR (RAM), in the United States District Court District of Nevada.
6
7
C. Any and all other legal matters wherein Respondent, either in
proper person or as counsel for a party or parties, brought a case that was dismissed,
8 whether Respondent was sanctioned or not. The State Bar intends to present these
9 matters as evidence in aggravation which will demonstrate a pattern of egregious
10 activity on Respondent's part which reflects adversely on his fitness to practice law.
11
-D. - Any and. all other legal matters necessary to demonstrate the
12
procedural history of the matter which is the underlying basis of the State Bar's
13
, Complaint, specifically, the matter of Kevin Mirch. vs. McDonald. Carano & Wilson,
14
15
16
17
18
LLP., Leigh Goddard; Case No. CV02-05644, in the Second Judicial District Court of the
State of Nevada in and for the County of Washoe.
2. The expert witness report of Dennis L. Kennedy, Esq. which also will be
provided to Respondent upon receipt of the same by the State Bar of Nevada.
3. The prior discipline history of Respondent, which is as follows:
Private reprimand dated August 13, 1991, grievance file N90-84-20.
Private reprimand dated August 13, 1992, grievance file N91-2-20.
Public Reprimand filed April 4, 1996, grievance files N92-30-20 and
242
-4-
I
1 A copy of Respondent's discipline will be provided to him under separate cover prior to
2 the formal hearing in this matter.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22, ..
23
24
25
DATED this '2't /I day of August, 2005.
STATE BAR OF NEVADA
By:
Rob W. Bare, Bar Counsel
9456 Double R Boulevard, Suite B
89521
(775) 329-4100
Attorney for State Bar of Nevada
-5-
243
,0
1 CERTIFICATE OF SERVICE BY MAIL
2 The undersigned hereby certifies a copy of the foregoing Notice of Formal
3 Hearing and Designation of Witnesses; Summary of Evidence was deposited in the
4 United States Mail at Reno, Nevada, postage fully pre-paid thereon for first class mail
,
5 and certified mail, addressed to Kevin J. Mirch, Esq., clo Robert R. Hager, Esq., at the
6 Law Offices of Hager and Hearne, 910 East Parr Boulevard, Suite 8, Reno, NV 89512
7 on this d"-J(V\ day'of August, 2005.
8
9
\ ~ s ~
TORRI SLAUGHTE:an employee of
the State Bar of Nevada.
10
11
" - .-, .. ~ -
12
13
14
15
16
17
18
19
20
21
22
23
24, .
25
-6-
244
I I
o
:0
I
e11'1
0
.
a Complete Items: 1, 2, and 3. Also complete
A. Signature
item 4 if Restricted Delivery is desired.
x\_
D Agent
a Print your name and address on the reverse D Addressee
so that we can retum the card to you.
B. Received by (PrInted Name)
a Attach this can:lto the back of the mall piece,
or on the front If space permits.
D. Is delivery address different from Item 1?
Dyes
1. Article Addressed to:
If yES, enter delivery address below: DNo
Kevin J. Mirch, Esq.
.-
c/o Robert R. Hager, Esq.
Law Offices of Hager & Hearne

910 East Parr Boulevard, Suite 8 Mall D Exprasa Mall
Reno, 89512
D RegIstered o for MetchandIIIe
o Insured Mall D c.ol):
4. Restricted Delivery? (Extra Fee) Dyes
2. ArtIcle Number
(TrsnsffJr ftom service label)
7005 0390 0001
PS Form 3811 , February 2004 [)orMStIc Return ReceIpt 1 Bl!l595-Q2.Ml540
r-'I
Postage $
1-------1
,0 Cellifled Fee
o
o Retum Recefpt Fee
(Endor1Iem&nI Required) 1-____ --1
:0 Restricted Delivery Fee
IT' (Endorsement Required) \-------1
rT1
:0 "'P'_ ..... I " _____ 0 CI!
Kevin J. Mirch, Esq.
c/o Robert R. Hager, Esq.
Law Offices of Hager & Hearne
Postmallc
Here
910 East Parr Boulevard, Suite 8 .. .. .... 1
Reno, NV
i
,
0 f VJ j
S\.l tAM. ",-e.."" of. l. f" \LE P 8/2"/ 0 S
245
1 DECLARATION OF DAVID H. HAMILTON
2
3 I declare under penalty of perjury under the law of the State
4 of Nevada that the following is true and correct.
5
6 I.
7 I '-make this Declaration at the request of Kevin Mirch to
8 provide my experience to be an expert witness in disciplinary
9 matters.
10 II.
11 I was admitted to the Nevada Bar on September 29, 1972 and the
12 California Bar on June 27, 1973. I have been admitted to practice
Gl
13
z
::l
c:
o Gl ......
>0

14
::::LJ g CD 10
:E-_
mlO
Cl"O '
:
15 :r:Gl<Gli'
E Z iii
C 0:5 -i'

16
c:( en,&,
C ......
N
before many Federal District Courts, as well as the Ninth Circuit
Court Of Appeals.
III.
My experience with disciplinary rules began when I started
M
17 represent clients in bring in malpractice claims against attorneys.
18 My first engagement began in approximately 1978 or 1979. This
19 malpractice case was related to the reported case of Richards v.
20 Conklin, 94 Nev. 84, 575 P.2d 588 (1978). I successfully tried
21 this case before a jury which made a large award to the clients.
22 IV.
23 Thereafter, I successfully prosecuted a number of malpractice
24 claims from 1979 until 2005. I estimate the number of these cases
25 to be approximately twenty. I nave answered in excess of 1,000
26 telephone inquires regarding attorney conduct. I have defended at
27 least four attorneys against malpractice lawsuits.
28
Page 1 of 3
, \ 1
For about 20 years, I have regularly been consulted by
2 attorneys regarding how the Nevada ethical rules guide their
3 conduct in particular situations. I also have been retained about
4 ten times, ?s an expert witness in malpractice cases. I have never
5 had to tes,tify at a trial as an expert. I have represented
6 attorneys in contempt hearings, as well as in sanction matters.
7 These'representations have given me a great deal of experience in
8 the understanding and application of ethical rules.
9 v.
10 In 1989, I was appointed to the Northern Nevada Disciplinary
11 Board. After serving for nine years, I was "termed" out. During
12 my service on the Board, I served on screening panels which decide
whether there was probable cause to file a formal disciplinary
complaint against an attorney. I also served on hearing panels as
either a panel member or chair in taking evidence and deciding
formal complaints against attorneys.
VI.
18 Since 1987 I have represented attorneys who have had
19 complaints made against them to the Disciplinary Board. The number
,20 of these cases exceeds forty. Only one of these cases have
21 resulted in a formal complaint being filed. I have also
22 represented approximately five clients in bringing complaints
23 against an 'attorney.
24 VII.
25 I was appoint.ed a member of the Fee Dispute Committee in 1998.
26 I serve as a mediator, single arbitrator and panel arbitrator. My
27 service on the fee dispute committee requires resolutions of
28
Page 2 of 3
1
disputes involving Nevada's Rules of Profession
Conduct.
2
Executed
3
4
5
6
7
8
9
10
11
12
Q)
13 ::>
z c
o Q)"-
>0
....
14

::E""'_asu;"
Cl"t:l(O
c( >-.E <Xl
15 ::I: Q) -.:: Q) .....
Ez;o
o o - .....

16
c( (/)Q)
o .,-0::
N
C")
17
18
19
20
21
22
23
24
25
26
27
28
Page 3 of 3

11 20 08 Doc 20 With Exhibits Mirch Post Hearing Brief 08-80074 69 Pages Total Ocr

Transféré par

Informations du document

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

11 20 08 Doc 20 With Exhibits Mirch Post Hearing Brief 08-80074 69 Pages Total Ocr

Transféré par

Droits d'auteur :

Formats disponibles

1

Vous aimerez peut-être aussi