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In re Drakulich12/19/1995
lephoned appellant's office to "give names of clients that he had told to get in touch with us." This conduct alone does not constitute a violation of any of the Nevada Rules of Professional Conduct, and, of course, appellant does not contest the fact that Hall referred clients to his office for representation. The essential issue in this disciplinary matter is whether appellant shared legal fees with Hall because Hall had referred clients to him, or whether, as appellant maintains, Hall was paid in negotiated and reasonable amounts for performing investigative and other services in the cases involving clients that Hall had referred to appellant. In this respect, Skelly could only state that she had no knowledge of whether Hall performed investigative or other services for appellant. That she did not know whether Hall ever performed an asset check or any type of investigative service is certainly understandable in light of the fact that she did not even work for appellant during the
[111 Nev. 1556, Page 1569]
time frame in issue. Moreover, Skelly never heard appellant say that Hall was paid a referral fee. Skelly's lack of knowledge in these respects manifestly is not clear and convincing proof that Hall was paid solely for having referred clients to appellant; nor does it consist of clear and convincing proof refuting the evidence that appellant paid Hall for services Hall performed. Surely, such testimony cannot approximate clear and convincing proof that appellant engaged in the professional misconduct alleged in Count IV. Skelly's only other testimony of note is her statement that appellant had instructed her that "Al over at Business and Professional Collection Service would do any credit checks or asset checks that we needed because he was a client of ours." As detailed above, this testimony was thoroughly refuted by the testimony of the owner of that business. In sum, Skelly's testimony can hardly be said to constitute clear and convincing proof that appellant paid Hall referral fees during 1988. Thus, it is apparent from our review of the record that the panel must have placed great reliance on Stellmach's testimony, and in particular her statement that she heard appellant say that Hall received a ten percent referral fee. It also appears that, in order to find as it did, the panel must have completely discounted and rejected the testimony offered by appellant, Hall, and Rusk. We are not persuaded, however, that the evidence in support of appellant's explanation should be disregarded so readily and completely. Additionally, in light of appellant's uncontradicted testimony regarding the circumstances surrounding Stellmach's departure from her employment with appellant, 5 we are unwilling to accord her testimony the same high degree of reliance that the panel apparently accorded to that testimony. In the case of In re Clarke, 46 Nev. 304, 307-08, 212 P.1037, 1038 (1923), this court held that due to the highly penal nature of an order of disbarrment 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.
[111 Nev. 1556, Page 1570]
Although the panel has recommended a 90-day suspension in the instant case, and not disbarrment, we nonetheless conclude that, under all the circumstances, the evidence in this case that appellant paid Hal
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