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In re Drakulich12/19/1995
tangible facts establishing a legitimate inference or a high probability that appellant committed the violation of our disciplinary rules found by the panel.
DISCUSSION
Uncontradicted testimony in this record establishes that Hall referred friends and personal acquaintances to appellant who were in need of legal representation, and that Hall received payments from appellant relating to those cases. It is also uncontradicted that Hall did not receive payment in all of the cases he referred to appellant, but only in those cases in which he performed work for appellant and in which appellant obtained a monetary settlement or judgment. We emphasize that the testimony that Hall performed investigative services, asset checks, and other work for appellant in the three cases at issue is uncontradicted, and that the state bar presented no affirmative evidence refuting this testimony. Appellant and Hall both testified that Hall performed such services and was compensated for the work he performed. Their testimony is consistent. Their testimony is also consistent with the notations on the checks that Hall received from appellant. Further, their testimony was corroborated by Terry Rusk, the Chief of Investigations at the Washoe County District Attorney's Office. Rusk testified that, when he shared office space with appellant:
[Hall] came down the hall from [appellant's] office and said that he was doing some work for [appellant] and wanted to know if I had any work that he could be doing. I told him that time no. And then periodically, when he would be in, he would ask me if I had anything that he could do as far as skip tracing or asset searches, that type of thing.
(Emphasis added.) Although appellant's ex-secretary Jan Marie Stellmach testified that appellant instructed her to make notations on all checks issued to Hall indicating that the check was payment for investigative services, this testimony does not negate the positive testimony that Hall in fact performed
[111 Nev. 1556, Page 1568]
such services. Rather, Stellmach's statement regarding the instructions she received from appellant is entirely consistent with the testimony of appellant and Hall. Further, like appellant's other ex-secretary Muriel Skelly, Stellmach could only state that she had no knowledge of whether Hall performed investigative services, asset checks, or other work for appellant. As appellant argues, this type of indefinite testimony should not be given greater weight than Hall's and appellant's positive testimony to the effect that Hall did perform such services. See, e.g., McClellan v. David, 84 Nev. 283, 439 P.2d 673 (1968) (testimony of witness that he does not remember an event does not contradict positive testimony that such event or conversation occurred). We note as well that the testimony presented by Muriel Skelly does not even remotely approach clear and convincing proof that appellant engaged in the misconduct charged in Count IV. By her own admission, Skelly was not even employed by appellant in 1988, the relevant time period specifically alleged in the complaint. Count IV of the complaint alleged that appellant paid referral fees to Harold Hall " uring 1988." According to Skelly, however, she worked for appellant as a legal secretary and legal assistant for two and one-half years beginning in April 1985. Thus, Skelly's own testimony establishes that she left appellant's employ prior to 1988. Because she was no longer employed by appellant in 1988, Skelly could have had no knowledge resulting from her employment of any referral fee payments appellant allegedly made to Hall during 1988.
Moreover, Skelly could only testify affirmatively that Hall te
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