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In re Drakulich12/19/1995
submitted by Hall for investigative services. Hall's testimony also fails to persuade me that Drakulich was not splitting fees with him. Hall rambled extensively in his testimony and had difficulty in answering questions. Although Hall denied referring clients to Drakulich for a fee, insisting that references were only because Drakulich was a family friend and a good attorney, I find that his testimony was largely unhelpful and unpersuasive in confirming Drakulich's testimony. Finally, I note my concern with the law relating to our review of bar matters. The law regarding bar matters is clear. "Though persuasive, the Board's findings and recommendations are not binding on this court. This court must review the record de novo and exercise its independent judgment to determine whether and what type of discipline is warranted." In re Stuhff, 108 Nev. 629, 633, 837 P.2d 853, 855 (1992). The panel was the body which actually observed the witnesses testify. I would, therefore, change the law to grant more deference to the disciplinary hoard, especially in the area of witness credibility. See, e.g., Matter of Arrick, 882 P.2d 943, 948 (Ariz. 1994) (" n issues of witness credibility, we have held that it is proper for the commission and this court to defer to the hearing committee"). Because Drakulich disputed the testimony of his former secretaries, much of the board's decision turned on witness credibility. The disciplinary panel, not this court, is the body best able to view the testimony of the various witnesses and assess their credibility.
Opinion Footnotes}
1 We note that present bar counsel did not prosecute this action before the panel, or file the appellate brief submitted to this court.
2 In a subsequent evidentiary bearing ordered by this court, Hall described his job title with the Reno Orthopedic Clinic as the "collection supervisor." He stated that his job only entailed the collection of bad debts from patients at the clinic, that he "worked off a computer sheet," and that his job had "nothing to do with the medical problem or medical history" of any patients.
3 We note, that from our review of the record, we are able to confirm only one instance where the payments to Hall totaled ten percent of appellant's fee.
4 See also SCR 39; SCR 99(1); In re Kenick, 100 Nev. 273, 680 P.2d 972 (1984); In re Wright, 68 Nev. 324, 232 P.2d 398 (1951); In re Scott, 53 Nev. 24, 292 P.291 (1930).
5 We note that Stellmach did testify that she held no grudge against appellant. Nonetheless, Stellmach did not contradict appellant's explanation of the circumstances under which she left her employment with appellant's office.
6 The Honorable Jerry Carr Whitehead, Judge of the Second Judicial District Court, who was designated by the Governor to sit in place of The Honorable John C. Mowbray, Justice, on July 17, 1992, did not participate in this decision. The Honorable Miriam Shearing, Justice, did not participate in this decision.
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