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In re Drakulich12/19/1995
l 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 Stellmach's testimony that appellant paid Hall referral fees. As noted above, however, Stellmach'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 "lawyers 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. Similarly, in light of the consistent affirmative testimony presented by Hall and appellant, we are not persuaded that the evidence clearly and convincingly demonstrates a violation of SCR 188(1), the rule that prohibits a lawyer from sharing legal fees with a non-lawyer. The evidence in this record reflects that appellant and Hall negotiated the value of Hall's services after Hall performed the services. The fact that on occasion the payments to Hall equaled or approximated ten percent of appellant's fee does not alter the essential nature of the payments or their purpose. The evidence suggests that appellant did not share a predetermined percentage of his legal fees with Hall, rather, appellant generally negotiated with Hall the value of Hall's services after they were performed, and paid Hall for those services out of appellant's own funds. Further, uncontradicted testimony indicates that the payments to Hall
[111 Nev. 1556, Page 1571]
amounted to a fair and reasonable compensation for the services Hall performed. It is true that the negotiations were conducted in terms with which Hall was familiar, i.e., Hall would always begin the negotiations with a request for thirty percent. He could not say, however, of what he was requesting thirty percent. Appellant was simply negotiating with Hall in terms with which Hall was familiar and able to understand. Even if the payments to Hall could be construed as a violation of SCR 188(1), i.e., a percentage sharing of appellant's fees, we are not persuaded that appellant's conduct warrants the severe sanction recommended by the panel. We note, for example, that the alleged misconduct occurred prior to this court's publication of an anonymous letter of reprimand clarifying that fee arrangements involving the percentage sharing of attorneys' fees with non-lawyers are prohibited. See Discipline of an Anonymous Member of the Bar, Docket No. 22708 (Order, August 14, 1992). The attorney in that case was anonymously reprimanded for violating SCR 188(1). The atto
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