10 6 08 Doc 13 in Re Mirch Response To Order To Show Cause

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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
RESPONSE TO ORDER DATED
SEPTEMBER 9, 2008
Respondent, Kevin J. Mirch, in pro per and through his attorney, Marie Mirch, hereby
submits this supplemental memorandum 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 September 9, 2008, addressing the issue of reciprocal
discipline and specifically addresses Respondents position that an independent review by this Court
will reveal that Mr. Mirch was denied due process and there is insufficient proof of misconduct to
uphold the discipline imposed. This memorandum is based on the following points and authorities,
exhibits and pleadings on file herein.
In re:
KEVIN JOHN MIRCH, Esq., Admitted to
the bar of the Ninth Circuit: February 16,
1988,
Respondent.
Case: 08-80074 10/06/2008 ID: 6666383 DktEntry: 13 Page: 1 of 53
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TABLE OF CONTENTS
MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
a. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II SUMMARY OF ISSUES REGARDING
VIOLATIONS OF DUE PROCESS
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
a. Relevant Provisions of Law Involved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
b. List of Due Process Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
c. Scheme to Improperly Disbar Mr. Mirch. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. Prearranged Plan to Disbar or otherwise improperly discipline Mr. Mirch. . . . 5
III SUMMARY OF OPINIONS OF NEVADA COURTS
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
IV STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
a. Factual Background of the case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2. The underlying case of USI v. APP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. Judgment in favor of Frank/APP . . . . . . . . . . . . . . . . . . . . . . . . . 10
B. The Brooks attempt to set aside the entire judgment. . . . . . . . . . 11
3. Mirch v. Frank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. Conduct during Mirch v. Frank constituting the factual basis for
Mirch's suit against Goddard and McDonald Carano . . . . . . . . . 13
i. Advise to destroy evidence . . . . . . . . . . . . . . . . . . . . . . . 13
ii. Concealment of Bankruptcy asset . . . . . . . . . . . . . . . . . . 14
iii. Retaliation against Mr. Mirch . . . . . . . . . . . . . . . . . . . . . 15
iv. The Mirch APPI-Frank Settlement . . . . . . . . . . . . . . . . . 16
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v. McDonald's Withdrawal in Mirch v. Frank . . . . . . . . . . 17
4. Mirch v. McDonald Carano . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5. Threats of discipline against Mirch have been used repeatedly as a litigation
tool
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
b. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1. The Complaint and Amended Complaint . . . . . . . . . . . . . . . . . . . . . . . . 20
2. Defendants Motion to Dismiss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3. The District Court Ordered a Hearing on the MOTION TO DISMISS . . 22
4. Hearing on Motion to Dismiss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5. October 9, 2003 Order of Judge Hardesty . . . . . . . . . . . . . . . . . . . . . . . . 22
6. Judge Hardesty's bid for Supreme Court was pending during this action and
Judge Hardesty failed to disclose his acceptance of money and
contributions in kind from the Defendants
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
IV CONSTITUTIONAL ISSUES PRESENTED TO THE COURT . . . . . . . . . . . . . . . . . . 23
a. The United States Constitution Guarantees Due process in State Bar disciplinary
matters
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
b. The Quasi Criminal Nature of the Disciplinary Process Requires Notice of the
Charges alleged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
c. Disbarment without Notice and Due Process is a taking in violation of the Fifth and
Fourteenth Amendments of the United States Constitution . . . . . . . . . . . . . . . . 25
e. The Ethical Rule upon Which Respondents Disbarment Is Founded Is Void for
Vagueness and Therefore Unconstitutional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
VI ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
a. The State Bar's Complaint Failed to Provide Adequate Notice of What Conduct
Constituted the Alleged Wrong Doing in Violation of Appellant Mirch's Due Process
Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2. The State Bar Provided Insufficient Notice as to What Alleged Wrongdoing
Constituted a Violation of SCR 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3. STATE BAR FAILED TO PROVIDE ADEQUATE NOTICE OF PRIOR
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UNCHARGED BAD ACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4. STATE BAR FAILED TO PROVIDE ADEQUATE NOTICE THAT IT
WOULD ALLEGE MIRCH'S FAILURE TO INVESTIGATE VIOLATED
SCR 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
b. RESPONDENT MIRCH WAS DENIED HIS RIGHT TO CONFRONT HIS ACCUSER
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c. THE PANEL IMPROPERLY ALLOWED THE UNSWORN TESTIMONY OF
BRUCE LAXALT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
d. THE DECISIONS BELOW IGNORED THE NOTICE AND
EVIDENTIARY REQUIREMENTS FOR SUMMARY JUDGMENT . . . . . . . 36
e. The Bar Complaint Misapplied Well Established Law Directly Controlling the
Outcome of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
VII CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
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TABLE OF AUTHORITIES
CASES:
A. B. Small Co. v. American Sugar Refining Co., 267 U.S. 233, 239-40, 69 L. Ed. 589, 45 S. Ct. 295
(1925). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Armstrong v. Manzo Et. Ux, 380 U.S. 545, 85 S. Ct. 1187, 13 L. Ed. 2d 62 (1965) . . . . . . . . . . 25
Burleigh v. State Bar, 98 Nev 140 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Burton v. Mottolese, 267 Conn. 19-20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Celotex Corp. v. Catrett, 477 U.S. 317, 326, 91 L.Ed. 2d 265 106 S. Ct. 2548 (1986) . . . . . . . 44
CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375, 393, 685 A.2d 1108 (1996), overruled in
part on other grounds by State v. Salmon, 250 Conn. 147, 735 A.2d 333 (1999) . . . . . . . . . . . . 31
Coy v. Iowa, 487 U.S. 1012, 1015 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Crawfordv. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354 (2004) . . . . . . . . . . . . . . . . . . . . . . . 40
D.H. Overmyer Co. Inc. Of Ohio v. Frick Co., 405 U.S. 174, 185, 92 D. S.Ct 775, 782, 31 L.Ed.2d
124 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Ex parte Garland, 4 Wall. 333, 380 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Exber, Inc. v. Sletten Construction Co. 92 Nev 721, 558, P.2d 517, 524 (1976) . . . . . . . . . . . . 45
Fuentes v. Shevin, 407 U.S. 66, 80, 92 S.Ct. 1983, 1994 (1972)( . . . . . . . . . . . . . . . . . . . . . . . . 36
Gibson v. Mayor and Council of the City of Wilmington, 355 F.3d 215, 222-23 (3d Cir. 2004)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Grannis v. Ordean, 234 U.S. 385, 394 (1914). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Greene v. McElroy, 360 U.S. 437, 496-497 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L. Ed. 2d 527 (1967) . . . . . . . . . . . . . . . . . . . . . . . . 44
In re Oliver, 333 U.S. 257, 273. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
In re Ruffalo, 390 U.S. 544; 88 S. Ct. 1222 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-31, 40
In re Shieh, 738 A.2d 814, 816-17 (D.C.1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Jerome Mgmt. v. District of Columbia Rental Hous. Comm'n, 682 A.2d 178, 183 (D.C.1996)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Kolender v. Lawson, 461 U.S. 352 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Konizeski v. Livermore Labs (In re Consol. U.S.Atmospheric Testing Litig.), 820 F.2d 982, 988 (9th
Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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Ohio Bell Tel. Co. v. Public Utilities Commn, 301 U.S. 292, 307 (1937) . . . . . . . . . . . . . . . . . 44
Posters ' N' Things, Ltd. v. United States, 511 U.S. 513, 525, 128 L. Ed. 2d 539, 114 S. Ct. 1747
(1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Randall v. Brigham, 7 Wall. 523, 540 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Selling v. Radford, 243 U.S. 46, 51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Soebbing v. Carpet Barn, Inc., 109 Nev. 78l 847 P.2d 731(1993) . . . . . . . . . . . . . . . . . . . . . . . 44
Spevack v. Klein, 385 U.S. 511, 515. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
United States v. Batchelder, 442 U.S. 114, 123 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S. Ct. 446, 66 L. Ed. 2d 358
(1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Whitney v. State Employment Security Dep't, 105 Nev. 810, 813 (1989) . . . . . . . . . . . . . . . . . . 36
Willner v. Committee on Character & Fitness, 373 U.S. 96, 103-104 (1963) . . . . . . . . . . . . . . 39
STATUTES:
N.R.S. 52.025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
N.R.S. 52.035 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
N.R.S. 52.105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Nevada Revised Statutes 48.045 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 35
OTHER AUTHORITIES:
Canon 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Comment 2 to ABA Model Rule 3.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
N.R.A.P. 49(c)(2)(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Nevada District Court Rule 43(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Nevada Rules of Civil Procedure Rule 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Nevada Rules of Civil Procedure Rule 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Nevada Supreme Court Rule 105(2)(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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Nevada Supreme Court Rule 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Nevada Supreme Court Rule 105(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
NRCP 12(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
NRCP Rule 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
U.S. CONST. AMEND. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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SCR 170 was amended in 2006 to SCR 3.1 to change the number of rules to follow the
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Model ABA rules.
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MEMORANDUM OF POINTS AND AUTHORITIES
I
FACTS
a. Introduction
The matter before this Court is a reciprocal attorney discipline proceeding regarding Kevin
Mirch. On April 11, 2008 the Nevada Supreme Court issued an order disbarring Mr. Mirch from
the practice of law in Nevada for violating Nevada Supreme Court Rule 170 . X App 190. Mr.
1
Mirch is a a member of the California State Bar in good standing, and is also admitted in the Sixth
and Ninth Circuit Courts of Appeals, the United States Supreme Court, the United States District
Court for the Northern, Southern and Central Districts of California, and the United States District
Court District of Ohio. Mr. Mirch was disbarred in order to prevent the disclosure of misconduct
running rampant within the State of Nevada Judicial System at every level.
This Court must make an independent review of the record to determine whether the
underlying proceedings reveal: (1) a deprivation of due process; (2) insufficient proof of misconduct;
or (3) grave injustice which would result from the imposition of such discipline. In re Kramer, 282
F.3d 721, 724 (9 Cir. 2001). Under the Kramer analysis, it is clear that reciprocal discipline
th
against Mr. Mirch is improper. The Nevada state district court record, which is the impetus for the
disciplinary complaint, the Nevada State Bar disciplinary hearing, and the Nevada Supreme Court
Order all are built on a myriad of due process violations, as well as a total disregard for the most
basic rules of civil procedure and rules of evidence. This is the first hearing in over 5 years where
Mr. Mirch will be able to candidly prove outrageous conduct, including improper use of the Nevada
State Bar as a litigation tool, and judicial misconduct which has resulted in ignoring even the most
basic rules of civil procedure and due process which should have been afforded Mr. Mirch. Not
only should the disbarment be rejected, Mr. Mirch should be immediately reinstated with an apology.
This Memorandum shows a desperate attempt of the Nevada judiciary to prevent evidence of
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concerted efforts to deny Mr. Mirch due process.
II
SUMMARY OF ISSUES REGARDING
VIOLATIONS OF DUE PROCESS
a. Relevant Provisions of Law Involved
United States Constitution, First Amendment
United States Constitution, Fifth Amendment
United States Constitution, Sixth Amendment
United States Constitution, Fourteenth Amendment
Nevada Supreme Court Rule 170
Rule 56 case law requiring discovery prior to allowing hearing (i.e., before summary
judgment)
Nevada Rules of Civil Procedure Rule 56
Nevada Rules of Civil Procedure 12, 11 , 56
b. List of Due Process Violations
1. The disbarment of Petitioner Kevin Mirch violated due process and equal protection
clauses of the United States and Nevada Constitutions as guaranteed by the First, Fifth, Sixth and
Fourteenth Amendments in order to protect and advance the political agenda of at least two major
Nevada law firm (McDonald Carano, Lionel Sawyer Collins) and their clients (e.g., Bank of
America, Hospital Corporation of America) and a District Court Judge Hardesty who was aspiring
for election to the Nevada Supreme Court. Mr. Mirch was also a candidate for the Nevada Supreme
Court. Judge Hardesty accepted all contributions. Mr. Mirch accepted no contributions.
2. The District Court of Nevada, which is the complaining party to the Nevada State Bar
totally ignored the procedural and due process requirements for motions to dismiss and for sanctions
(i.e., by improperly finding the motion to be one for summary judgment, refusing Mr. Mirch
Discovery). Mr. Mirch was disbarred for filing a frivolous claim based upon NRCP 56, even though
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the preceding judge (Judge Adams) ruled that the motion was to dismiss under Rule 12 and one for
sanctions, not summary judgment. During the hearing, Judge Hardesty ruled that the motion was
for summary judgment, disallowed testimony from witnesses, and a motion for reconsideration.
Judge Hardesty so ruled as he was concealing judicial fraud at the expense of Mr. Mirch: (1) altered
transcripts by Bonanza Reporting in this and other cases; (2) bankruptcy fraud by McDonald Carano;
(3) fraud by the Nevada Attorney Generals Office resulting in the same of real property at Lake
Tahoe for substantially less than the fair market value; (4) use of threats by the Nevada Attorney
Generals Office and the FBI to falsely change testimony; (5) concealing discovery of defective slot
machines manufactured by IGT, the largest employer in the State of Nevada by Federal and State
Judges; and (6) maligning Mr. Mirch in order to conceal false testimony and evidence provided by
Hospital Corporation of America in order to protect HCA employees who had lied about misconduct
not occurring during other HCAs Reno Mental Institution Cases (e.g., Blow Hole Therapy). Mr.
Mirch was disbarred for filing a complaint which alleged threatening conduct during one of his
cases. Judge Hardesty, without any factual support, sua sponte found that Mr. Mirchs brief lacked
merit and he should be disbarred.
3. The Due Process violations of the Nevada State Bar include , but are not limited to :
denial of Mr. Mirchs right to confront his accuser (Justice Hardesty); denial of Mr. Mirchs right
to fair notice of the charges against him; the State Bar hearing panel accepting the unsworn
testimony of a major witness at the Bar hearing; the State Bar Hearing Panel refusing to acknowledge
un controverted law allowing additional discovery before a motion to dismiss is changed to one for
summary judgment; not allowing Mr. Mirch any discovery before turning a Rule 12 motion into one
under Rule 56; and making an arbitrary finding not supported by any evidence. When Mr. Mirch
did the right thing he was subjected to disbarment.
4. Destruction of evidence by the Nevada State Bar Disciplinary Process;
5. The Nevada State Bar's disciplinary complaint failed to provide adequate notice of what
conduct constituted the alleged wrong doing in violation of Petitioners due process rights.
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A. Judge Hardesty, as presiding judge, took over Mr. Mirchs complaint from Judge
Adams who had ruled that the motion filed by the Defendants was one for dismissal (Rule 12) and
for Sanctions (Rule 11), not rule 56. Mr. Mirch did not know that Judge Hardesty intended to
change the motion to one for summary judgment (Rule 56), to make factual findings without any
evidence to support the same; refer the matter to the Nevada State Bar Disciplinary Panel that waited
until Mr. Mirch suffered a stroke at which time they attacked Mr. Mirchs complaint. Judge
Hardesty could not make a factual finding without having percipient knowledge and refused to testify
as he would have had to admit that a plan was devised to disbar Mr. Mirch to prevent a number of
high profile cases from being filed:
(1) IGT v. Siena, Siena v. IGT (product defect in every slot machine ever manufactured by
IGT. Evidence Sealed by Judge Reed without Mr. Mirch being allowed to argue that the president
and CEO of IGT had admitted that the evidence was require to be disclosed to casinos using the
defective equipment (i.e., Messrs. Mathews and Matheson);
(2) Suter v. IGT, (claiming no defects in several hospital cases while knowing that Blow
Hole Therapy was being used and undoubtedly constituted sexual abuse of both children and adults.
Counsel for Lionel Sawyer were concerned that litigation fraud cases would prove that false
testimony was being encouraged). This would have reopened several cases and caused allegations
of perjury.
(3) United States v. James Forsythe, M.D., (criminal prosecution of Dr. Forsythe while the
Food and Drug Administration knew that the allegedly illegal drug had been approved for use in
1995 and was being used by the head of Nevadas Home Land Security, Jerry Bussell; the Nevada
Governors wife, Dawn Gibbons, in order to cause harm to Dr. Forsythes wife, Earlene Forsythe
who was the head of the Republican party at the time that false testimony was given by the United
States Attorney Generals Office to the Grand Jury). Mr. Bogden, the U.S. Attorney was terminated
supposedly for using his office to cause the unlawful prosecution of several prominent citizens who
refused to comply with his political agenda. Mr. Bogden became a partner of McDonald Carano after
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Mr. Mirch questioned the prosecution of 8 prominent citizens;
(4) Bankruptcy Fraud. Mr. Mirch disclosed and provided evidence of bankruptcy fraud in the
Universal Sales v. Kenneth Frank; Frank v. Universal Sales case. Judge Riblet required the transfer
of all assets to a Chapter 7 before conversion from a Chapter 11 to 7 could occur. The award was for
approximately $3.5 million dollars. Mr. Mirch was threatened with making this disclosure and
accordingly was threatened with disbarment, prosecution, and sanctions. Mr. Mirch filed suit to
abide by the order and was falsely prosecuted, disbarred and sanctioned.
(4) Bankruptcy Fraud 2: McDonald Carano accused by another attorney, Kent Robison of bid
rigging a bankruptcy sale. Mr. Mirch disclosed the same to the FBI.
(5) Bankruptcy Fraud 3: McDonald Carano was arranging sales at reduced rates at Lake
Tahoe (and other locations) by falsely testifying that certain properties were polluted (e.g., Cave
Rock). Mr. Mirch obtained video take confirming telephone conversations of the improper conduct.
Mr. Mirch was attacked as a result of disclosing this conduct.
(6) Judge Hardesty had a ongoing dispute with Mr. Mirch having told certain defense
attorneys to arbitrarily sue Mr. Mirch. In order to prevent Mr. Mirch and his clients from pursuing
high level litigation against large Nevada institutions Judge Hardesty intentionally caused Mr. Mirch
to be disbarred without proper notice or cause.
(7) Specific Acts of Due Process violations. Mr. Mirch was threatened with disbarment,
sanctions, and loss for insisting that a Bankruptcy order be followed in a case filed in Santa Barbara,
California. Under that order, all assets were to be transferred to a Chapter 7 estate before a Chapter
11 case could be converted to the Chapter 7. Mr. Mirch insisted that the order be followed thus
requiring the disclosure of over a $3,000,000 settlement to be disclosed and transferred to the Santa
Barbara Bankruptcy Court. When Mr. Mirch insisted on the disclosure he was immediately attacked
by the Nevada State Bar Disciplinary Board, attacked in a motion to dismiss hearing by Judge
Hardesty, and substantial fines were placed upon him ($70,000.00). Mr. Mirch sued the attorney
who made the threats and initiated the action against him. Without any evidence to support his
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conduct, Judge Hardesty changed the motion to one for summary judgment (Rule 56) and made
findings without any evidence to support the same (e.g., that McDonald Carano attorneys did not
threaten Mr. Mirch). Mr. Mirch was disbarred for filing a complaint lacking any merit. Mr. Mirch
was not allowed to do discovery, to answer the arbitrarily changed motion for summary judgment,
or to have an opportunity to be heard on a motion for summary judgment sua sponte brought by
Judge Hardesty. In order to accomplish the disbarment of Mr. Mirch, Judge Hardesty improperly
did the following:
A. Judge Hardesty removed Judge Adams from the case. Judge Hardesty was
the presiding judge in Washoe County at the time;
B. Judge Hardesty arbitrarily set a hearing for a motion to dismiss and for
sanctions (no discovery had been done and the Defendants had not answered
the Mr. Mirchs complaint).
C. Following the Hearing, Judge Hardesty sua sponte changed the motion to
dismiss hearing/sanctions to one for summary judgment under Rule 56. Mr.
Mirch objected as he had not responded to a motion for summary judgment
and was not allowed to respond; Mr. Mirchs motion to reconsider was not
considered by Judge Hardesty there was insufficient evidence tendered to
support a motion for summary judgment; Judge Hardesty was privately
receiving substantial contributions for his run for Nevada Supreme Court
from McDonald Caranos Counsel; Mr. Mirch had no notice and had
specifically stated in his opposition that if the motion were to be viewed as
one for summary judgment that he requested specific discovery be allowed
before the motion be considered. The Defendants, McDonald Carano,
specifically responded in their reply that the motion was not for summary
judgment, but instead to dismiss and for sanctions (i.e., before any response
had been done).
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D. The Nevada state bar provided insufficient notice as to what alleged
wrongdoing constituted a violation of Nevada Supreme Court Rules. The
Nevada Bar simply relied on Judge Hardestys Order without an investigation
to determine whether Mr. Mirch had done anything wrong.
E. Prior to the Nevada State Bar deciding to disbar Mr. Mirch, their decision
was broadcast to a number of attorneys and potential clients within the State
of Nevada.
F. Mr. Mirch was not allowed to litigate a number of cases directly involving
gaming fraud, banking fraud, and other high profile issues.
G. Mr. Mirch had disclosed illegal judicial conduct including, but not limited to
a Bonanza Reporting falsely reporting depositions for her brother, a
prominent Reno Attorney, who used his sister without disclosure to report
cases. In one case, Wiseman v. Washoe County, US District Court District of
Nevada case number CV-N-98-00472-DWH (PHA), over 100 pages were
missing that dealt with judicial misconduct related to collecting payments
from certain Judges court rooms. Mr. Mirch was not allowed to raise any of
these issues.
H. The Nevada State bar failed to provide adequate notice of prior uncharged
bad acts;
I. The Nevada State bar failed to provide adequate notice that it would allege
service of a summons and complaint within the 120 days required by law
violated Nevada Supreme Court Rule 170. This violated Mr. Mirchs due
process as the complaint was filed within the 120 days required by law.
Instead, Judge Hardesty fabricated an infraction in order to justify Mr.
Mirchs disbarment;
J. The Nevada State Bar failed to provide adequate notice that it would allege
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Petitioners failure to investigate violated Nevada Supreme Court Rule
170. The investigation should have included Mr. Mirchs claim that he was
a whistle blower for disclosing illegal payments to Judge Hardesty while he
was presiding over the case that ultimately resulted in the disbarment of Mr.
Mirch.
5. Respondent was denied his Constitutional right to confront his accuser - Judge
Hardesty.
6. Respondent was denied his Constitutional right to due process when the Nevada
Supreme Court improperly accepted the unsworn testimony of Bruce Laxalt during
the State Bar Hearing. The swearing of the witness was done after he had already
testified and was given retroactive effect. The Panel also ignored evidentiary
objections in order to conceal evidence in pending cases that would have an impact
upon the operation of banking, gaming, and judicial business within the State of
Nevada.
7. The ethical rule under which Mr. Mirch was disbarred, Nevada Supreme Court Rule
170, is void for vagueness, and therefore unconstitutional. The State Bar made the
statute more vague by refusing to specifically state what Mr. Mirch had done wrong.
8. Mr. Mirchs Constitutional Rights were violated when the Nevada Supreme Court
disbarred Mr. Mirch without a full hearing, en banc, much less a hearing at all. Two
Justices recused themselves and were not replaced with other justices. There was no
argument despite he request for the same. So 3 out of 5 justices found Mr. Mirch
should be disbarred based upon an order that had not been investigated and that the
Bars expert, admitted that he accepted as true all the allegations made by Mr. Mirch.
If true that would mean that documents wee destroyed, Mr. Mirch was threatened
with civil and criminal prosecution by the Bar; and would lose because of McDonald
Carano and Lionel Sawyer Collins relationship with the Judiciary (both State and
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Federal).
9. The Nevada State Bar Association conspired with Bruce Beesley and other
McDonald Carano Counsel to deny Mr. Mirch his due process. Previously, Mr.
Mirch had intercepted an insurance company memoranda which specifically
discussed a scheme to cause the improper disbarment of Mr. Mirch. A later
deposition of Bruce Laxalt, attorney for McDonald Carano, confirmed that counsel
for Hospital Corporation of America, was involved in a scheme to cause the
disbarment of Mr. Mirch because he had uncovered sexual misconduct in their
Truckee Meadows Mental Institute. At least one physician was involved in Blow
Hole Therapy which involves blowing air into a patients rectum in order to reduce
stomach pain. After repeatedly admitting that no improper conduct had occurred at
the hospital, this opened the door for a large Rule 60(b) motion and additional
litigation to correct the litigation fraud propounded by Lionel Sawyer Collins
Partner Allen Wilt, Esq., upon other Truckee Meadows patients. At least one of
those patients committed suicide. Bruce Laxalt, counsel for the McDonald Law
Firm, admitted that he was contacted by Allen Wilt, Esq., the Lionel Sawyer Collins
partner, to cause Mr. Mirch to be improperly disbarred in order to prevent disclosure
of litigation fraud involving Hospital Corporation of America.
10. The Nevada State Bar violated Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995),
when it approved only competitors of Mr. Mirchs to serve as members of his board.
Clearly they had a conflict of interest that could not provide Mr. Mirch with a fair
panel.
Not only was Mr. Mirch denied any due process, he was attacked in order to prevent disclosure of
illegal conduct which was ongoing within the State of Nevada.
c. Scheme to Improperly Disbar Mr. Mirch.
1. Introduction.
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Mr. Mirch has repeatedly complained that the State Bar within the State of Nevada is
improperly used as a litigation tool by certain attorneys that are considered favored within
disciplinary board (e.g., Beesley, Peck). Whenever the bar is needed to back off a lawyer with an
important or political case, the Beesley/Peck or other preferred attorneys are hired to initiate bar
action against the opposing counsel.
2. Prearranged Plan to Disbar or otherwise improperly discipline Mr. Mirch.
In 1996, Mr. Beesley accidentally sent to Mr. Mirch an insurance document containing notes
which proved that Mr. Beesley was using the Bar to reek havoc on certain attorneys. The
memoranda constituted notes of a phone call with Mr. Beesleys firm which provided in pertinent
part as follows:
PSULLIVAN 4-12-96
REC LTR F/BRUCE BEESLEY-POTENTIAL SUSPENSION OF DEBTOR ATTY HAS
BEEN REFERED TO SUPREME COURT & AWAITING DECISION-WILL KEEP
ADVISED, WILL PROCEEDONCE SUSPENSION IS ORDERRED WILL KEEP ADV.
none 2/14/96 Legal
TT ERIC, THIS FILE IS ON HOLD UNTIL LESSEES ATT IS SUSPENDED OR
DISBARED. Notorious for filing counterclaims, etc. disbarrment proceeddings going on
right now and they should know shortly what happened. We w88ll advnce 2 mo until this
ocurs.
psullivan 8/2/95 Legal
ERIC CLD TO DISCUSS ACCT-SD DEBTORS ATTY6 IS UPFOR DISBARMENT-
THINKS WE SLD WAIT 30 DAYS & SEE WHAT HAPPANSFEELS THAT THERE
WILL DEF BE ACCOUNTER CLAIM AGAINST US & PROB THE LAW FIRM-SDIN
PAST EXPERIENCE W/THIS CLOWN. IT WILL COST ANARM & LEGDEFENDING
SD WIILL FOLLOW UP W/ME IN 30 DAYS&WE CAN MAKE DECISION.
psullivan
REC CL F/SID KISSTLER (GORDON & SILVER) HE CCOULD TOADV THAT THEY
HAVE COMPLAINT READY TO BE FILED BUTFELT THEY SLD LET US KNOW
THAT KEVIN MIRCHHIS ASOCIOPATH & WILL DEF COUNTERR SUE UD & ATT
FIRM & NWILL BE SEEKING PUNITIV DAMAGES -SD THEY HAVE
HADDEALINGS W/HIM BEFORE & HE IS NUTS SD WILL WANT TO DEPOSE ME
& CREDIT OFFICER &PRES OF CO-SD WILL PROB COST QUITE A BIT TO DEFEND
-SD WILL PROBABLY COST QUITE A BIT TO DEFEND -SD WE WLD PROBABLY
PREVAIL BUT THEY ARE CONVERNED ABOUT THE COST &WANTEED TO MAKE
US AWARE OF IT. SD WILL HAVE ERICTOUCH BASE W/ME WHEN HE GETS
BACK NXT WE
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See 2 APP 1162, Notes from psullivan, date 9/21/98. Mr. Mirch was not advised that he was a
target, but after repeated complaints he filed an action in the District Court of Nevada, Mirch v.
Laxalt, et al. CV-05-641 -RLH-(RAM). That suit outlined a history of baseless attacks against
Mr. Mirch simply because he had successfully pursued high profile complaints against the largest
companies in Washoe County. The complaints included the theft of money from high rollers that
resulted in an approximate $7,000,000 verdict which a JNOV was promptly granted. Now several
other cases which involve the same misconduct are pending. In any event, Mr. Allen Wilt told Bruce
Laxalt that they had to get rid of Kevin J. Mirch:
Q. And this morning, you made a couple of statements that were interesting to me and
Ill try to go through these things pretty quick. I know we have a limited amount of
time. You said that there were law firms that were afraid of me.
A. I said one law firm in particular.
Q. Who?
A. Lionel, Sawyer and Collins.
Q. Who told that?
A. Allen Wilt.
Q. What did Allen say?
A. He said they had been through the Hospital
Q. What did allen say
A. He said they had been through the Hospital Corporation of America, sued with you.
They had then that you had then filed suit in federal court against Hospital
Corporation of America, and then named in the body of the complaint, if not the
caption, Lionel, Sawyer, accused of litigation fraud, Judge Breen, Judge Adams,
Judge Lane, Judge Rose, Frankie Sue Del Papa, Judge Agosti, as all participating in
a scheme to in exchange for political donation to refer troubled teenagers to
whatever dui was called back then. In exchange for political donations to refer
troubled teenagers to whatever it was called back then.
Q. Truckee Meadows.
A. That sounds right.
Q. Did he tell you that he won?
A. It was dismissed against all parties, except for one party paid 60 grand to Rachel, and
I frankly cant remember whose party that was. I may have misspoken. It would have
been Mr. Wilts. But I cannot recall that offhand.
Q. So Mr. Wilt didnt tell you that millions of dollars were paid on that case?
A. No he did not.
XI AP 56:2557:1-25, 58:1-3, Deposition of Bruce Laxalt.
These previous cases had been obtained by fraud, because Jerry Howell, M.D., during his sworn
deposition testimony admitted that a sexually improper procedure had occurred which was known
as Blow Hole Therapy. While giving testimony that no sexually improper conduct was occurring
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at the hospital, Allen Wilt knew or should have known that grossly improper conduct was occurring
at Truckee Meadows, which is where the judiciary was sending its patients for care. This created
potential harm for the judges that vehemently endorsed Truckee Meadows.
Mr. Mirch disclosed the improper conduct to the following individuals: Each member of the
Nevada Supreme Court; Senator Harry Reid, Senator Bryan, and Congressman James Gibbons. A
few years later, Mr. Mirch took the deposition of Bruce Laxalt, Esq, counsel for McDonald Carano
and Lionel Sawyer Collins (two of the largest firms in the State of Nevada). These firms represented
the largest clients in the State of Nevada (e.g., International Game Technology, Bank of America,
Bank of America Investment Services, Prudential, Washoe County, etc.). In that deposition, Mr.
Laxalt admitted the he had been approached to attack Mr. Mirch at the behest of Allen Wilt, Esq.,
in order to prevent the disclosure of sexual misconduct at the HCAs, Truckee Meadows Hospital:
Q. That kind Youre laughing .. What kind of therapies was he doing that makes you
laugh right now? It conjures up something in your mind that causes you to laugh.
A. He does strange things.
Q. Tell me about the strange things that Dr. Tannenbaum was doing.
A. Well, he somehow had decided that there was a he represented to the I think it was
the its been to long since Ive been on those committees. I dont know what theyre
called now. Medical Executive Committee that we had gotten word that someone
had complained of rectal pain, and so he had this person bend over and he blew
three puffs of air onto the guys rectal area, and that this was an Indian an old
Indian remedy, Native American Remedy.
And Dr. Molde tells this much better than I do.
Q. Did you consider discipline?
A. We did discipline him. You know, that I think I was Chief of Staff and I think that
Don Molde was Medical Director at the time, and we got word of that and we
dragged him in, and said that well stop.
Q. Why didnt you take it away from him? He blew air up somebodys ass is what
youre saying.
A. Number one it didnt hurt anybody.
Q. How do you know it didnt hurt anybody. It doesnt have to have physical pain to
hurt somebody, dont you agree? Thats what your business is about, isnt it?
A. All right. I withdraw the answer. We did what we thought was prudent. We called
him in we said look thats strange. We believed that is not within the standard of
normal medical practice. Dont do it again and never did it again.
Q. Why didnt you take his privileges away?
A. Oh come on.
Q. Dont you thin....
A. Come on . Come on
X AP 199 at 51:2-25; 52:1-15, Deposition of Dr. Howle.
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Allen Wilt was requesting help from Bruce Laxalt, Esq and Bruce Beesley, Esq., in order
to protect Hospital Corporation of America, its witnesses that denied any wrongdoing at Truckee
Meadows Hospital, and political figures that closely aligned themselves to HCA in order to prevent
the obvious false testimony that had been proffered in order to protect those individuals. Favored
members of the Nevada Bar sought Mirchs disbarment in order to accomplish his objective. In
several litigations, HCA employees had repeatedly denied any physical wrongdoing. Mr. Mirch
had been unsuccessful in at least one action because of the repeated denial of wrongdoing. Finally,
Dr. Jerry Howell, admitted that wrongdoing had occurred in what was known as Blow Hole Therapy.
As a result of that testimony, Mr. Laxalt admitted that he was approached by Mr. Wilt to
prevent Mr. Mirch from continuing to find fraud rampant within large companies operating within
Washoe County. Mr. Laxalt implied that the legal community had become afraid of Mr. Mirch and
he needed to be disbarred. Mr. Mirch was disbarred for filing a legitimate complaint supported by
substantial evidence, which Judge Hardesty refused to consider when he sua sponte converted a
motion to dismiss into one for summary judgment without notice. Obviously, the State Bar had been
biased against Mr. Mirch.
III
SUMMARY OF OPINIONS OF NEVADA COURTS
On October 9, 2003, James W. Hardesty, District Judge for the Second Judicial District
Court State of Nevada, entered an order of summary judgment sua sponte, and referred the matter
for review by the Nevada State Bar. III AP 640, Hardesty Order. Judge Hardesty did not allow Mr.
Mirch to respond to the motion to dismiss as one for summary judgment.
The Nevada State Bar Disciplinary Panel failed to conduct any independent investigation
and merely adopted the Order of James Hardesty, entertained additional charges of misconduct
without notice to Mr. Mirch, ignored State Bar Counsels request for sanctions of a one year
suspension, and entered Findings of Fact and Conclusions of Law on March, 2007, imposing the
ultimate sanction against Mr. Mirch - that being disbarment. X AP 181, State Bar Disciplinary
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Panel Report and recommendation.
The Nevada Bars recommendation was the subject of an automatic appeal to the Nevada
Supreme Court, which, in an opinion dated April 10, 2008 disbarred Petitioner, Kevin J. Mirch. I
AP 190, Nevada Supreme Court Order of Disbarment . There was no hearing before the Supreme
Court entered its order; the Supreme Courts ruling was not en banc as two members were missing
and not replaced; and the order ignored Nevada law regarding a number of issues including but not
limited to, when Motions to Dismiss can be changed to Motions for Summary Judgment after
objection by the attorney and before any discovery had been done. Mr. Mirch properly advised the
Defendants and Judge Hardesty in his opposition to motion to dismiss that he required specific
discovery, if the court was inclined to consider the motion to be one for summary judgment. Judge
Hardesty ignored that specific request and would not let Mr. Mirch properly respond to the Motion
to dismiss turned Motion for Summary Judgment.
IV
STATEMENT OF CASE
a. Factual Background of the case.
1. Introduction.
On September 25, 2002, Mirch filed suit against McDonald and Goddard for intentional
interference with a contract, conspiracy and whistle blowing (a claim allowed by NRS 41.635 (the
anti slapp suit statute)). 1 AP 1, Complaint. It is the filing of this case which ultimately lead to the
decision by the State of Nevada to take away Mr. Mirchs license to practice law in Nevada. There
was no discovery or investigation to determine if Mr. Mirchs allegations were factually correct.
Instead, Judge Hardesty simply ignored Mr. Mirchs allegations and ruled factually in favor of
McDonald Carano.
The Mirch v. McDonald case arose from the improper conduct of the Defendants Leigh
Goddard and McDonald Carano during their representation of Kenneth Frank and Advanced
Physicians Products, Inc. (APPI) in a suit for attorneys fees owed to Mr. Mirch by McDonald
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AP refers to the Appendix filed concurrently with this Brief.
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Caranos client Dr. Kenneth Frank and APPI, Dr. Franks corporation. There are a number of
lawsuits dating back to 1991 which formed the basis of the Mirch v. McDonald suit.
2. The underlying case of USI v. APP
A. Judgment in favor of Frank/APP
Mr. Mirch represented Dr. Frank, Stephen Cherniske and APPI from 1991 to 1995 in an
action pending in United States District Court, District of Nevada entitled Universal Sales, Inc. v.
Advanced Physicians Products, Inc., et al. CV-N-91-0375-ECR (VPC) (hereinafter USI v. APP).
I AP 25. Universal Sales, Inc., was owned by Martin and Jeanette Brooks. Dr. Frank
2
counterclaimed and cross claimed the Brooks. Mr. Mirch had a contingent fee arrangement with Dr.
Frank which required a 40% fee for any recovery, $25.00 per hour, and that all costs be paid by the
client. Mirch and Cashill expended a great deal of time and effort to prepare these cases for trial.
A number of depositions were taken throughout the United States. The USI-APPI case was set for
trial January 24, 1995. Shortly before trial, Cashill withdrew from representing USI and the Brooks.
Also, the Brooks wrote Judge Reed advising him that they would not appear for trial. The trial was
held on January 24, 1995, but turned into a prove-up hearing when neither the Brooks nor an attorney
on their or USI's behalf appeared. A judgment for $3,439,868.77 was entered against the Brooks,
USI and UIHDP. That amount represented damages of $1,128,947.59 for royalists due, personal
losses $1,000,000, emotional distress $100,000 and punitive damages of $1,210,921.18. The
punitive damage award was based upon the Brooks and USI's admissions in a related case (which
Mr. Mirch also represented the plaintiffs against the Brooks) consent to judgment of fraud. This
Order was signed on March 14, 1995.
Dr. Frank thereafter assigned APPIs interest in the litigation to RC International (Emanual
Kopstein) and commenced execution. Kopstein received an assignment of the Judgment and was
to keep 50% of the proceeds. Because Mr. Mirch did not have the right to do discovery, he did not
know that the judgment could be paid (i.e., there was adequate funds to pay for the judgment and the
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judgment could have paid the Santa Barbara Bankruptcy Claims. This assignment was not
disclosed to Mirch until on or about January 6, 2000. When Mr. Mirch sought his compensation,
Dr. Frank claimed there was no contract and Mr. Mirch had been fully paid. The executed funds
were interplead into the United States District Court. Mr. Mirch no longer represented Dr. Frank or
APPI at that time. However, he successfully intervened in that action and filed an attorneys fee lien.
B. The Brooks attempt to set aside the entire judgment.
After the funds had been secured by execution and placed in an interpleader account, the
Brooks filed a motion to set aside the APPI Judgment in the case in which it was entered (91-375).
They also filed an independent action to void the judgment for fraud. In that suit, the Brooks
claimed damage awards in the APPI Judgment were the result of Mirch's fraud upon the court.
On the motion for set aside the Judgment, the $1,000,000 awarded for Franks personal losses
and the $100,000 award for Franks emotional distress were set aside because Frank had assigned
all his rights to APPI, which could not recover Franks personal damages. The judgment for the
remaining $2,339,868.77 plus interest and costs was upheld in Judge Reed's September 26, 2000
Order. McDonald Carano handled this part of the Frank case, and failed to argue that an assignment
can only be of assets that are legitimately subject to assignment. Personal assignment of emotional
distress damages is improper, but does not void the claim. Instead, Dr. Frank retained his
independent claim for emotional distress in his name. McDonald Carano not only caused Dr. Frank
to lose a substantial amount of his claim, the loss was not necessary. McDonald Carano created a
conflict of interest in representing Dr. Frank and the judgment which Mr. Mirch had a legitimate
claim against under his contingent fee claim. Mr. Mirch was entitled to over $1,000,000.00 in fees,
he received $50,000.00 after suffering a severe stroke brought about by unfounded claims of
wrongdoing. All Mr. Mirch wanted to do was to comply with Judge Riblets Order and be paid for
amounts rightfully due to his office. McDonald Carano, while paying concealed contributions to
Judge Hardesty, caused Mr. Mirch to be accused of filing an improper claim, disbarred and ruined
financially and personally. Mr. Mirch was not allowed to even respond to the motion to dismiss as
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a motion for summary judgment. Judge Hardesty didnt notify Mr. Mirch that he was changing the
motion to one for summary judgment. Pending at the time of Judge Hardestys actions was an action
that had been filed by Mr. Mirch, which outlined arbitrary attacks upon Mr. Mirch by the State Bar
Disciplinary Panel in high profile cases. Mr. Mirchs cases were successful and involved: Wells
Fargo, Bank of America, IGT (International Game Technology); Hospital Corporation of America
(HCA); Lloyds of London; and many others. Mr. Laxalt put it best when he said that most firms
were afraid of Mr. Mirch and according to Mr. Wilt they had to get rid of Mr. Mirch. Mr. Wilt was
protecting HCA and his firm from falsly arguing that no wrongdoing was occurring at Truckee
Meadows Hospital (i.e., Blow Hole Therapy occurred was concealed with continuous referrals to the
hospital by the judicial system despite knowing that that dangerous conduct was occurring. The
impact would have been devastating in light of altered transcripts being allowed without any
discipline being imposed (Wiseman v. Washoe County , supra).
3. Mirch v. Frank
A. Introduction
As a result of Dr. Franks and APPs refusal to honor the fee agreement, Mr. Mirch initiated
a separate action against Dr. Frank, Judy Frank, APPI, and Marilyn Bulloch , in the Second Judicial
District Court of the State of Nevada alleging the following four causes of action: (1) breach of
contract against Kenneth Frank and APPI; (2)conspiracy against Kenneth Frank, Judy Frank, and
Marilyn Bulloch; (3) interference with present contractual relationships against Judy Frank and
Marilyn Bulloch; and (4) conversion against all defendants. That action was removed to federal
court, and assign case number CV-N-01-0443-ECR(RAM).
Initially, Kent Robison, Esq., represented the Frank Defendants in Mirchs action for fees
in the underlying case. Later, Mr. Robison withdrew and Leigh Goddard and the law firm of
McDonald Carano assumed representation. At the time that the Brooks independent action to set
aside the judgment for fraud was pending, Leigh Goddard was representing Dr. Frank and APPI in
the suit for fees Mr. Mirch had initiated. This was done as a result of direct threats made against Mr.
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Mirch.
Ms. Goddard initiated a counterclaim, and filed a motion for summary judgment against Mr.
Mirch for malpractice, accusing Mirch of misdeeds including fraud to avoid Frank having to pay
Mirch his fees. This strategy was employed to defeat Mirch's fee claim, but also it provided
evidence for the Brooks to set aside the entire APPI Judgment against them and leave Frank and
APPI with nothing. Judge Reed denied the Brooks claim that Mirch obtained the Judgment by
fraud, in an order dated June 10, 2002.
B. Conduct during Mirch v. Frank constituting the factual basis for Mirch's
suit against Goddard and McDonald Carano
i. Advise to destroy evidence
While the summary judgment motion was pending in the Mirch v. Frank action, the parties
took a series of depositions. On June 14, 2002, the deposition of Frank was taken in Mirch's office.
VI AP 1062 (Aff Mirch) , 1259 (Aff Wiseman) . Charles Wiseman who works for Mirch, attended
part of the deposition. During the deposition, he pulled out his pocket PC. Goddard claimed that
Wiseman was tape recording the proceeding and she would not allow a tape recording of the
depositions. VI AP 1062 (Aff Mirch) , 1259 (Aff Wiseman) . After this dispute was resolved,
Wiseman left the room and sat outside in the waiting area of Mirch's office. VI AP 1062 (Aff Mirch)
, 1259 (Aff Wiseman) . During the next break, Goddard and Frank came out of the deposition room
and began a conversation where Wiseman could hear it. VI AP 1062 (Aff Mirch) , 1259 (Aff
Wiseman) . Neither Goddard or Frank realized Wiseman was sitting in a nearby chair, waiting to
discuss his presence in Frank's deposition with Mirch. VI AP 1062 (Aff Mirch) , 1259 (Aff
Wiseman) . The conversation overheard, regarded Frank destroying documents Mirch had been
seeking to prove his attorney fee claim. Wiseman specifically heard Goddard advise Frank to
destroy the requested documents (fee agreement and billing statements).VI AP 1062 (Aff Mirch) ,
1259 (Aff Wiseman) . After this conversation ended, Frank, without permission, went into the
kitchen in Mirch' s office and looked through a box of Mirch's (Frank) files. VI AP 1062 (Aff
Mirch) , 1259 (Aff Wiseman) . Wiseman executed an Affidavit about the incident which was been
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FRBP1019(5)( C ) requires disclosure of all assets including those acquired after the
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Chapter 11 Plan of Reorganization was approved up and until conversion is granted. This
accounting is necessary to make sure valuable assets are not being assigned to other entities
wherein their true value can be hidden.
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filed with the District Court in the Mirch v. Goddard action VI AP 1259 - 1260 (Aff Wiseman) .
Judge Hardesty ignored this exhibit as it was part of the Motion for Reconsideration following Judge
Hardestys order entering summary judgment on a motion to dismiss. That affidavit alone was
sufficient to overcome the improper motion for summary judgment.
ii. Concealment of Bankruptcy asset
At the time the judgment in USI v. APP was rendered, Dr. Frank was in Chapter 11
bankruptcy. He then converted to Chapter 7, and failed to disclose the judgment as a asset to the
bankruptcy estate. III AP 504. During the deposition of Frank, Mirch was questioning Frank about
the potential use of the proceeds of the APPI Judgment. III AP 515. During a break in the
deposition, Goddard asked Mirch why he was inquiring about the use of the proceeds of the APPI
Judgment. VI AP 1062:25-27. Mirch told Goddard that the receipt of the proceeds had to be reported
and turned over to the bankruptcy court. VI AP 1062:27-28.
At the time of the conversion from Chapter 11 to Chapter 7, U.S. Bankruptcy Judge Riblet
issued a specific order in regards to Dr. Franks bankruptcy that all assets be turned over to the
bankruptcy estate. Obviously, Judge Hardesty ignored the specific requirements imposed by Judge
Riblet in the conversion ruling. Judge Riblets order is very specific and provides as follows:
Debtor (Frank) shall comply with Federal Rule Of Bankruptcy Procedure 1019 and
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cease all business operations forthwith and immediately turn over all assets to the
Chapter 7 Trustee. [Emphasis added].
III AP 499-500 See Exhibit 23, Judge Riblets Conversion Order, V AP 980-981.. Frank claimed
that the Brooks had no money to pay the judgment, while knowing the locations of millions of
dollars of the Brooks assets. This was done to prevent paying the Chapter 11 Bankruptcy Estate and
Mr. Mirchs attorney fees.
When Mr. Mirch informed Ms. Goddard that they were obliged to disclose the judgment as
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an asset of the bankruptcy estate, Goddard immediately threatened to file a claim against Mirch of
malpractice on behalf of her clients and to prevent Mirch from recovering his fee referencing her
firms influence on the Federal District Court. 1 AP16 FAC; VI AP 1062-1063 Aff Mirch. She also
stated the disclosure of the APPI Judgment to the Bankruptcy Court would breach his duty of
confidentiality. VI APP 1063:3-4. Moreover, Ms. Goddard made it very clear that Frank would sue
Mirch for disclosing this information and would seek to have his license taken by the Bar. 1 AP 17;
VI AP 1063:5-6 . This was followed by a statement that Mirch "knew they (McDonald) could do it."
VI AP 1063:7.
Mirch told Goddard he intended to inform the bankruptcy court of the possible recovery of
funds Frank might receive. VI AP 1063:8-9
iii. Retaliation against Mr. Mirch
Shortly after Frank's deposition on July 29, 2002, Goddard, on behalf on Frank and APPI,
moved to amend their Answer to allege a counterclaim for malpractice. Goddard filed this claim in
the face of a December 5, 2002 letter from Kent Robison to Jeffery L. Hartman, who represented the
Brooks in a bankruptcy case that the Brooks' had filed. In that letter, Robison takes the position that
Mirch did not commit "fraud on the court while representing Frank and APPI". Robison has also
stated that Mirch did not malpractice the Franks. Claiming that Mirch had committed malpractice
was bad faith as Mirch obtain a multi-million dollar judgment after 4 years of litigation and while
representing Dr. Frank, as a counterclaimant. In reality, it was McDonald Carano that had filed a
fraudulent claim against Mr. Mirch, not the contrary.
Previous to Mr. Robisons letter to Mr. Hartman, Mr. Mirch took the deposition of both Dr.
and Mrs. Frank. When questioned about what malpractice Mr. Mirch had committed, Dr. Frank
responded by referring the question to this counsel, Leigh Goddard:
A. You fraudulently represented that you had a contingency fee agreement with
Advanced Physicians Products.
Q. Anything else?
A. As I sit here now, I cant give you a rendition of other acts, omissions and
misrepresentations and malpractice that you committed.
Ms. Goddard: And I have also indicated that discussions of malpractice are based on
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attorney/client privilege.
Mr. Mirch: He wasnt done with his answer.
The Witness: And, and as I said before, so far for every question youve asked me, Ive had
attorney discussions that I cannot discuss with you including malpractice. And especially
malpractice. But I cannot discuss it.
By Mr. Mirch:
Q. How do I know what I did wrong?
A. I suppose in time youll find out.
This testimony is taken from the Deposition of Dr. Kenneth Frank dated June 13, 2002, Vol. 1,
Deposition of Kenneth J. Frank, 202:10-25, 203:1-3 III AP 517-518; VI AP 1063:25-28, 1064:1-
In reality Mr. Mirch was being attacked for winning a million dollar judgment 6; McDonald Carano
becoming involved in the underlying Frank case and losing $1,000,000 of damages by failing to
argue that Dr. Frank could not have lost assigned his emotional distress but would not have lost it
by attempting to assign an unassignable claim. McDonald Carano created a conflict that they soon
blamed on Mr. Mirch by taking over the case against Mr. Mirch.
iv. The Mirch APPI-Frank Settlement
On April 17, 2003, APPI and the Franks reached a settlement of Mirch's attorney fee claim
for $300,000 which Robison confirmed by letter. IV AP 668. Mirch and Robison began trying to
prepare the paperwork for the settlement. VI AP 1064:9-10. Robison obtained $500,000 directly
from the Brooks allegedly to pay APPI s obligation to Mirch. VI AP 1066:10-12. Mirch was
informed that $150,000 went to Robison's trust account and $350,000 directly to APPI (McDonald
Caranos client). VI AP 1066:12-13. Robison informed Mirch that APPI had to give all or part of
the $350,000 to pay McDonald Carano, and could not pay Mirch the $300,000 settlement. VI AP
1066:13-15. Mr. Mirch needed the money as he had 2 back surgeries and eventually a severe stroke
from the stress generated by constant attacks by attorneys closely associated with the Nevada State
Bar Disciplinary Committee.
On June 17, 2003, the settlement was not completed because of Goddard and McDonald's
interference with the settlement. Mirch had received a letter from Robison who was still
representing Frank and APPI in other cases. Robison wrote:
In attempting to determine the parameters of the Mutual Release I am proposing for
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resolution of all matters concerning you, Dr. Frank and APPI, I discussed the scope of the
proposed Mutual Release with Leigh Goddard. I am throughly concerned about her informal
committal response. I have insisted that our settlement necessitates a Mutual Release
releasing all of APPI's counsel. That would necessitate a release by all of Dr. Frank's
and APPI's attorneys for any claims they may have involving you. This is where I
encountered what I perceive to be reluctance.
I am not delaying intentionally, I just need to understand whether you are
willing to release McDonald, Carano and whether McDonald, Carano is willing to
release you. I believe this should be a global Mutual Release.
IV AP 669. The original release did not include releases of other individuals. It was a letter which
simply confirmed the release of Dr. Frank.
v. McDonald's Withdrawal in Mirch v. Frank .
Goddard and McDonald filed a Motion To Withdraw As Counsel in the Mirch v. Frank
action. IV AP 700. In the motion to withdraw, Pat Lundvall, a member of the McDonald firm set
forth the following reasons why McDonald was withdrawing from representing Frank:
As this Court well knows, this case involves allegations of breach of a contingent
attorney fee agreement and a counterclaim for legal malpractice. In response to the
counterclaim for malpractice, Mirch filed a third-party complaint against MCW and
individual members of the firm for indemnification. Mirch has not increased that potential
by falsely accusing MCW of somehow frustrating settlement of the case. Given recent
events, MCW now has no choice but to withdraw as counsel of record.
...
Based upon the foregoing it now appears there has arisen a potential for a conflict of
interest due to the unfounded allegations contained in MIRCH's recent motion. MCW now
has no choice but to withdraw as counsel for FRANK. MCW does not want to delay or
hinder the FRANK settlement with MIRCH in any manner, and therefore seeks an order from
this Court granting permission to immediately withdraw as counsel of record.
IV AP 701:3-9, 703:23-28.
The withdrawal was 8 months after Mirch gave Goddard a copy of his Amended Complaint
in Mirch v. McDonald on October 10, 2002, and 5 months after she was served with the Amended
Complaint on January 22, 2003. IV AP700. Neither McDonald or Goddard ever claimed that Mirch's
state court action against them caused them to withdraw from representing the Frank's or APPI. IV
AP700-704. In fact, McDonald Carano failed and refused to sign a Substitution of Attorneys for Mr.
Robison on June 25, 2003. IV AP 713. This is significant as McDonald Carano created the conflict
by taking over the Frank case during the collection phase, losing one million dollars of the award by
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Mr. Mirch and Dr. Frank and APPI ultimately settled their fee dispute and Mr. Mirch
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has been paid under the terms of the settlement.
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failing to argue that Dr. Frank did not lose that part of the judgment since it simply could not be
assigned (i.e., emotional distress). McDonald Carano should not have taken the case against Mr.
Mirch since they had a conflict of interest from their original work. In fact, they had requested and
obtained an affidavit from Mr. Mirch for that part of the case; withheld their work from Mr. Mirch;
and knowingly withheld knowledge of the location of assets sufficient to pay Mr. Mirchs fee and
as well as the Bankruptcy Creditors. Mr. Mirch did not create a conflict of interest to cause
McDonald Carano to quit the case, McDonald Carano created the conflict by taking over the case,
usng Mr. Mirch in that aspect of the case; losing $1,000,000.00 of the judgment and then attacking
Mr. Mirch in order to recover for their own malpractice.
4. Mirch v. McDonald Carano
During discovery in the Mirch v. Frank case, and later when Mr. Robison and Mr. Mirch had
settled the dispute between Mirch and Frank , Leigh Goddard engaged in inappropriate conduct
4
which formed the basis for Mr. Mirchs suit against Ms. Goddard and McDonald Carano. Mr.
Mirchs filing of the Mirch v. McDonald suit is the basis upon which he was subjected to discipline
by the Nevada State Bar.
On September 25, 2002, Mirch filed suit against McDonald and Goddard for intentional
interference with a contract, conspiracy and whistleblowing (a claim allowed by NRS 41.635 (the
anti slapp suit statute)). I AP 1. On October 9, 2003, Judge Hardesty entered his Order finding the
Amended Complaint frivolous, imposed sanctions in an amount to be determined later, referred the
matter to the State Bar of Nevada and left open the question of prohibiting Mirch from practicing
in the Second Judicial District Court. III AP 640. At that time, Judge Hardesty was receiving
political contributions from McDonald Carano and the Laxalt law firm; Judge Hardesty had
improperly taken over the case from Judge Adams; Judge Hardesty had changed the motion to
dismiss to one for summary judgment; denied Mr. Mirch any response to the Motion for Summary
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Judgment; denied Mr. Mirch any discovery on his case; simply assumed that McDonald Carano was
correct without allowing an independent tribunal to determine if McDonald Carano used threats to
impair litigation (i.e., threats of being disbarred, sanctioned, losing because of control they harbored
over certain members of the judiciary) and encouraging the destruction of evidence.
5. Threats of discipline against Mirch have been used repeatedly as a litigation tool
The threats by Ms. Goddard against Mr. Mirch are not the first time Mr. Mirch has been
threatened improperly with discipline during litigation. VI AP 1068:1-2. In fact, during November
of 1997, Mr. Mirch made disclosures to Senator Harry Reid, Senator Richard Bryan, Congressman
James Gibbons, and to each member of the Nevada Supreme Court after having been threatened by
an attorney with disciplinary reprisals if he did not accept a settlement he believed was not in the best
interest of his client. VI AP 1068:3-6.
Furthermore, during October of 1998, Mr. Mirch received documentation in a Case entitled
Green Tree Vendor Services Corporation v. Martin Paul Rutherford, CV 97-05589, In the Second
Judicial District Court of the State of Nevada in and for the County of Washoe, which provided
notes from a Green Tree employee confirming that the same politically stout attorney (Bruce
Beesley, Esq.) was using the political influence or professing to be able to use political influence
sufficient to cause discipline to be imposed upon Mr. Mirch, and other members of the Bar
Association, thereby improving Green Trees chances in the litigation against Dr. Rutherford. VI
AP 1068:712, VI AP 1162. That same firm (Beesley and Peck) was retained by Mr. Laxalt as a
bankruptcy experts in the Mirch v. McDonald Carano matter. Later, Ms. Peck admitted that in
rendering their expert opinion, she never considered the Bankruptcy order of Judge Riblett. Judge
Riblett was the Santa Barbara Bankruptcy Judge who ordered that all assets be transferred to the
Chapter 7 bankruptcy estate as part of the Chapter 11 conversion to Chapter 7. Hearing Transcript
June 6, 2005. Mr. Mirchs bankruptcy expert, Geoffrey Giles, did review Judge Ribletts Order and
opined that Mr. Mirch was correct, the Judgment was part of the Bankruptcy Estate. IV AP 670-682.
During the disciplinary hearing before the State Bar, the Bars expert (a Lionel Sawyer Collins
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partner) admitted that he agreed with all of the testimony of Mr. Mirch his witnesses, which included
Geoffrey Giles.
b. Procedural History
1. The Complaint and Amended Complaint
This case originated with the filing of the Complaint on September 25, 2002. I AP 1. The
original Complaint was subsequently amended on September 26, 2002. I AP 10. The parties to
the action are Kevin Mirch, Plaintiff and McDonald, Carano & Wilson, LLP, and Leigh Goddard.
AP 10. The case was originally assigned to Department 1, Judge Berry, but after a peremptory
challenge by Mr. Mirch was reassigned to Department 6, Honorable Brent Adams. X AP 2026,
Docket sheet .
Both the original Complaint and the Amended Compliant alleged only three causes of action
against the Defendants: (1) Intentional Interference with Present Contractual Relationships; (2)
Conspiracy; and (3) Whistleblower. I AP 1-9, I AP 10-19. As will be discussed in detail below,
and critical to this memorandum is the fact that neither the Complaint or Amended Complaint
contained a claim for bankruptcy fraud. Id.
Service of the Amended Complaint was accomplished personally on January 22, 2003. I AP
39. Further, Bruce Laxalt, counsel for the Defendants, accepted service of the First Amended
Complaint on January 22, 2003. I AP 42.
2. Defendants Motion to Dismiss
On February 10, 2003 the Defendants filed a Motion to Dismiss pursuant to NRCP 12(b)(5).
I AP 44-238. The motion was thirty-four pages in length, and included over 157 pages of exhibits.
I JA 44-238. Further, because the Motion to Dismiss violated NRCP Rule 12, which requires a
motion to dismiss to accept all allegations contained therein as true and limits review to the
complaint on its face, and contained immaterial, impertinent and scandalous accusations against
Mr. Mirch, Plaintiff filed a Motion to Strike Motion to Dismiss on March 12, 2003 . I AP 239-243.
On March 14, 2003, Plaintiff filed an Opposition to Dismiss and Cross Motion for Sanctions.
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II AP 226- 344. The Motion included exhibits in response to the Defendants Motion for Rule 11
sanctions, but specifically stated that:
Plaintiff is responding to Defendants motion as if it were one to dismiss under
Rule 12. If this Court should consider Defendants motion to be one for
summary judgment, Plaintiff seeks leave to supplement this opposition. See
NRCP 56(f). In order to complete discovery for purposes fo responding to a motion
for summary judgment, it is necessary to prepare, serve and receive responses to
Requests for Production, Admissions and Interrogatories. Additionally, depositions
must be taken of a number of individuals including, but not limited to, the Brooks
(Jeanette and Martin), Gary Hill, Esq., Emanuel Kopstein and creditors listed in Dr.
Franks bankruptcy.
II AP 252:15-24, Opposition to Motion to Dismiss.
The opposition to motion to dismiss also moved to strike the exhibits filed in support of
Defendants Motion to Dismiss as they lacked proper authentication. N.R.S. 52.105, 52.025, 52.035
et seq. and NRCP 56. AP 252:13-15.
On March 21, 2003, the Defendants filed an Opposition to Plaintiffs Motion to Strike. II
AP 363. In that Opposition, the Defendants confirmed that the exhibits supplied were not intended
for purposes of a motion for summary judgment, but affirmed that they were seeking dismissal under
NRCP 12(b)(5) and for consideration of their allegations that Mr. Mirch had violated Rule 11. II
AP 364: 21-27. Mr. Mirch filed his Reply to Defendants Opposition to Motion to Dismiss (sic)
[Strike] on March 31, 2003. II AP 3380-385 and on April 1, 2003. II AP 386. After the hearing
to dismiss, Judge Hardesty changed the motion to one for summary judgment, and without evidence
to support a summary judgment, improperly attacked Mr. Mirch who was involved with some very
high profile cases including ones involving judicial fraud by Bonanza Reporting which admittedly
had over 100 pages of mis-transcribed or omitted pages.
A Reply in Support of Defendants Motion to Dismiss was filed, II AP 349-361, once
again confirming that the motion was to dismiss under NRCP 12(b)(5) for failure to state a claim,
not a motion for summary judgment. Mr. Mirch was denied any due process as he was not allowed
to respond to the motion for summary judgment. He was punished without discovery and the State
Bar failed to do an investigation before imposing disbarment. Judge Hardesty who allegedly
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possessed sufficient knowledge to grant summary judgment and was receiving political contributions
from McDonald Carano, Lionel Sawyer, and Laxalt firms without disclosure to Mr. Mirch was not
required to testify despite being subpoenaed.
3. The District Court Ordered a Hearing on the MOTION TO DISMISS
On April 4, 2003, the Honorable Brent Adams issued an order on Defendants Motion to
Dismiss. Specifically, the District Court stated that a hearing would be held on the motion:
The court has read and considered the legal memoranda and exhibits in support of
and in opposition to defendants Motion to Dismiss, filed February 10, 2003, and
submitted for decision on March 21, 2003, and to Plaintiffs Motion to Strike, filed
March 12, 2003 and submitted for decision on April 1, 2003.
The court finds a hearing would be helpful in reaching a decision on the Motion
to Dismiss. As the court has already read the material plaintiff desires to be stricken,
the court finds striking the material would serve no purpose.
Accordingly, counsel for the parties are ordered to set a hearing, not to exceed two
hours in length with the courts administrative assistant, no later than ten (10) days
from the entry of this order. Plaintiffs Motion to Strike is denied.
II AP 411 Order [emphasis added]
The Order clearly stated that the hearing was on the Defendants Motion to Dismiss. There
was no indication that the same would ever be treated as a motion for summary judgment. Id. Mr.
Mirch was denied any due process to contest the Motion for Summary Judgment which Judge
Hardesty arbitrarily imposed upon him without notice.
4. Hearing on Motion to Dismiss
On June 4, 2003, the parties set a hearing date of August 4, 2003 to have the Motion to
Dismiss heard by Judge Adams. Just days before the hearing, and without notice to counsel, Judge
James Hardesty assigned the case to himself. IX AP, Hearing Transcript 8/4/03 at 4:13-22.
At the hearing the Defendants once again confirmed that the motion before the court was a
Motion to Dismiss pursuant to NRCP 12(b)(5): Obviously we responded with a 12(b)(5) motion,
and that is pending at the present time. IX AP, Hearing Transcript 8/4/03 at 12:13-14.
The Court without prior notice to the parties sua sponte converted the Motion to Dismiss as
one for summary judgment. IX AP, Hearing Transcript 8/4/03 at 76:19-20.
5. October 9, 2003 Order of Judge Hardesty
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On October 9, 2003, Judge Hardesty issued an Order granting summary judgment in favor
of the Defendants, and further sanctioning Mr. Mirch under NRCP Rule 11, and referring the matter
to the Nevada State Bar. III AP 40.
6. Judge Hardesty's bid for Supreme Court was pending during this action and
Judge Hardesty failed to disclose his acceptance of money and contributions
in kind from the Defendants
During the time Judge Hardesty was the presiding Judge in this case, he was also running for
a seat on the Nevada Supreme Court and accepted monetary and contributions in kind from the
Defendants. Judge Hardesty did not disclose this potential, if not actual conflict , to Mr. Mirch.
Judge Hardesty did not immediately resign even after Mr. Mirch became an opposing candidate for
Supreme Court.
IV
CONSTITUTIONAL ISSUES PRESENTED TO THE COURT
The practice of law is a valuable property right. No one can be deprived of this valuable
property right without due process of law.
Burleigh v. State Bar, 98 Nev 140 (1982).
a. The United States Constitution Guarantees Due process in State Bar disciplinary
matters
The issue of due process to be afforded a licensed attorney in a disciplinary matter is not new
concept, but well rooted in the rights afforded by the United States Constitution. The Nevada Legal
Disciplinary Board and the Nevada Supreme Court have desecrated this fundamental right in favor
of protecting the self -appointed political hierarchy that places its own agenda above the Petitioners
right to seek redress through the judicial system.
The United States Supreme Court has a history of enforcing the United States Constitution
in the context of state disbarment of a licensed attorney. For instance, in In re Ruffalo, 390 U.S.
544; 88 S. Ct. 1222 (1968), this Court held that the attorney was deprived of procedural due process
because the charges against him were improperly amended on the basis of his testimony in the
proceedings. The charge had to be known before the proceedings commenced. Disbarment, designed
to protect the public, is a punishment or penalty imposed on the lawyer. He is accordingly entitled
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to procedural due process, which includes fair notice of the charge. When proceedings for
disbarment are not taken for matters occurring in open court, in the presence of the judges, notice
should be given to the attorney of the charges made and opportunity afforded him for explanation
and defense. Id.
The absence of fair notice as to the reach of the disbarment proceedings and the precise
nature of the charges deprives an attorney of procedural due process when he is subjected to
disbarment proceedings, where his disbarment is based on a charge of misconduct which was not
in the original charges, but was added as a result of testimony presented by him and his witness
during disbarment hearings. A lawyer charged with misconduct in a disbarment proceeding is
entitled to procedural due process, which includes fair notice of the charge. Id
In the present case, Petitioner had no notice that any prior or subsequent conduct would be
considered in determining whether the filing of the underlying civil complaint against McDonald
Carano was a disbarment offense until after the Respondent had testified.
Finally, there was no de novo hearing before the Nevada Supreme Court (there is no
intermediary appellate court in Nevada). Rather, the Nevada Supreme Court rested on the State Bar
of Nevada Disciplinary Panelss record and findings, and the Order of disbarment was not
determined by the Nevada Supreme Court en banc.
The In re Ruffalo, supra, the United States Supreme Court further explained:
Disbarment , designed to protect the public, is a punishment or
penalty imposed on the lawyer. Ex parte Garland, 4 Wall. 333, 380;
Spevack v. Klein, 385 U.S. 511, 515. He is accordingly entitled to
procedural due process, which includes fair notice of the charge.
See In re Oliver, 333 U.S. 257, 273. It was said in Randall v.
Brigham, 7 Wall. 523, 540, that when proceedings for disbarment are
"not taken for matters occurring in open court, in the presence of the
judges, notice should be given to the attorney of the charges made and
opportunity afforded him for explanation and defense." Therefore,
one of the conditions this Court considers in determining whether
disbarment by a State should be followed by disbarment here is
whether "the state procedure from want of notice or opportunity
to be heard was wanting in due process." Selling v. Radford, 243
U.S. 46, 51.
In the present case Respondent had no notice that past conduct or subsequent conduct (suing in
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federal court for injunctive relief against the bar to prevent the due process violations) would be
considered in his disbarment, until well into the bar hearing when the panel members challenged
this conduct, and when it was included in the recommendations for disbarment to the Nevada
Supreme Court "Such procedural violation of due process would never pass muster in any normal
civil or criminal litigation." n3 370 F.2d, at 462.
b. The Quasi Criminal Nature of the Disciplinary Process Requires Notice of the Charges
alleged
The United States Supreme Court has found in considering notice and due process
requirements that State Bar Disciplinary proceedings are quasi-criminal in nature. See In re Ruffalo,
390 U.S. 544, 88 S.Ct. 1222 (1968). Cf. In re Gault, 387 U.S. 1, 33. The charge must be known
before the proceedings commence. They become a trap when, after they are underway, the charges
are amended on the basis of testimony of the accused. He can then be given no opportunity to
expunge the earlier statements and start afresh. Id.
Unquestionably, this absence of fair notice as to the reach of the grievance procedure and the
precise nature of the charges deprived Respondent of procedural due process. The discipline
recommended and adopted by the Nevada Supreme Court sua sponte disbarred Respondent, as Bar
Counsel had merely asked for suspension. The increased discipline was based on other past and
subsequent alleged conduct that was not before the panel, had in a number of cases been resolved
in Mr. Mirchs favor; documents relating to the same had been destroyed or withheld from Mr.
Mirch in order to prove his innocence; and with respect to each there was no notice that other matters
would be heard, nor an opportunity to prepare and be heard, both of which are mandated by the
fourteenth amendment to the United States Constitution. Not only was notice missing, Mr. Mirch
got sick during the hearing; the sickness was related to his stroke; and Mr. Mirch was denied a
continuance for one afternoon. Mr. Mirch was acting as lead counsel in his own case. Consequently,
Mr. Mirch was denied his 6 amendment right to counsel of his choice for the afternoon that he was
th
legitimately ill. This absence of fair notice as to the reach of the grievance procedure and the precise
nature of the charges, and failure to continue Mr. Mirchs case for one afternoon while he was
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legitimately ill deprived Respondent of procedural due process. In Re: Ruffalo, supra.
c. Disbarment without Notice and Due Process is a taking in violation of the Fifth and
Fourteenth Amendments of the United States Constitution
The Takings Clause of the Fifth Amendment forbids the taking of "private property for
public use, without just compensation." U.S. CONST. AMEND. V. The Takings Clause applies
against the states through the Fourteenth Amendment. Webb's Fabulous Pharmacies, Inc. v.
Beckwith, 449 U.S. 155, 160, 101 S. Ct. 446, 66 L. Ed. 2d 358 (1980). The Courts use a two-step
analysis to determine whether a " taking " has occurred: first, it must determine whether the subject
matter is "property" within the meaning of the Fifth Amendment and, second, it must establish
whether there has been a taking of that property, for which compensation is due. Konizeski v.
Livermore Labs (In re Consol. U.S.Atmospheric Testing Litig.), 820 F.2d 982, 988 (9th Cir. 1987)
It is well established "that a sanction for professional misconduct adversely
affects an attorney's vested right to practice law. . . . Thus, attorneys subject to
disciplinary proceedings are entitled to due process of law. . . . We traditionally
have recognized that the right to appellate review of an order imposing sanctions is
part and parcel of those due process rights accorded to a disciplined attorney.
Because a license to practice law is a vested property interest and disciplinary
proceedings are adversary proceedings of a quasi-criminal nature, an attorney
subject to discipline is entitled to due process of law" [As a procedural matter,
before imposing any . . . sanctions [on an attorney], the court must afford the . . .
attorney a proper hearing . . . . There must be fair notice and an opportunity for a
hearing on the record. . . . This limitation . . . is particularly appropriate with
respect to a claim of bad faith or frivolous pleading by an attorney, which
implicates his [or her] professional reputation." (Citations omitted; internal
quotation marks omitted.) CFM of Connecticut, Inc. v. Chowdhury, 239 Conn. 375,
393, 685 A.2d 1108 (1996), overruled in part on other grounds by State v. Salmon,
250 Conn. 147, 735 A.2d 333 (1999). [Emphasis Added].
In attorney disciplinary proceedings, two interests are of paramount importance. On the one
hand, the courts must not tie the hands of grievance committees and . . . courts with procedural
requirements so strict that it becomes virtually impossible to discipline an attorney for any but the
most obvious, egregious and public misconduct. On the other hand, courts must ensure that
attorneys subject to disciplinary action are afforded the full measure of procedural due process
required under the constitution so that they are not unjustly deprive them of their reputation and
livelihood." Burton v. Mottolese, 267 Conn. 19-20.
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d. The disbarment of Mr. Mirch for filing a lawsuit violates his First Amendment right
to petition the government for redress of grievances
The disbarment of Mr. Mirch was in retaliation for a complaint he had filed against
McDonald Carano in District Court, in violation of his First Amendment right to petition for
redress of grievances, which are carried to the States by the Fourteenth Amendment. Since
McDonald Carano was not required to answer and Mr. Mirch was not allowed to respond to the
Motion for Summary Judgment, there was no due process. Judge Hardesty simply made a factual
determination without any support for the same. When Mr. Mirch filed a Motion for
Reconsideration, the same was denied forthwith even though it contained extensive evidence of
wrongdoing (e.g., altering transcripts, destruction of evidence, undisclosed contributions to Judge
Hardesty by opposing counsel, admission that Mr. Laxalt had been approached by counsel to cause
Mr. Mirchs disbarment in order to prevent Mr. Mirch from litigating very political lawsuits - against
the gaming industry, against very political law firms, against banks that participated wrongful
termination against employees that were disclosing illegal conduct, etc.)
e. The Ethical Rule upon Which Respondents Disbarment Is Founded Is Void for
Vagueness and Therefore Unconstitutional
Former Supreme Court Rule 170, the ethical rule in effect upon which Mr. Mirchs
disbarment is founded is unconstitutional on its face, as it is vague and ambiguous and does not give
fair notice of what constitutes a violation and proper discipline for the same. Undisputedly, invoking
Rule 170 before any litigation (discovery, answers, and oppositions to motions for summary
judgment) is patently improper. Allowing disbarment to occur without a Supreme Court hearing that
was in en banc and missing 2 members when unanymous finding for disbarment is required
violated Mr. Mirchs basic due process rights.
Specifically, Nevada SCR 170, in effect at the time of the conduct prosecuted by the State
Bar and upheld by the Nevada Supreme Court provides in part:
A lawyer shall not bring or defend a proceeding, or assert or controvert an
issue therein, unless there is a basis for doing so that is not frivolous, which includes
a good faith argument for an extension, modification or reversal of existing law.
(added 1-27-86, eff. 3-28-86) (later replaced by 2006 amendment by SCR 3.1).
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Mr. Mirch had a good faith argument for brining the action, the State Bar Disciplinary Panel
and the State Supreme Court refused to follow state law, disciplinary rules, and to give Mr. Mirch
an opportunity to oppose Judge Hardestys Motion for Summary Judgment. The Rule is vague as it
does not contain a definition of frivolous. Comment 2 to ABA Model Rule 3.1 provides some
guidance:
The filing of an action or defense or similar action taken for a client is not frivolous
merely because the facts have not first been duly substantiated or because a lawyer
expects to develop vital evidence only by discovery. Such action is not frivolous
even though the lawyer believes that the clients position ultimately will not prevail.
The action is frivolous, however, if the client desires to have the action taken
primarily for the purpose of harassing or maliciously injuring a person, or, if the
lawyer is unable to either make a good faith argument on the merits of the action
taken or to support the action by a good faith argument for the extension,
modification or reversal of existing law.
The comment provides an attorney with three safe harbors. An attorney can file an action wherein
the facts are not fully substantiated. An attorney can file an action where he expects to develop
necessary evidence in discovery. A lawyer can file an action which he believes will fail. The rule
does not require a lawyer to be able to explain that the action was not brought to harass someone,
and/or maliciously injure someone. Neither the rule nor the comments answer one question about
the application of the rule. The question is whether an objective or subjective standard is used.
However, the drafters of Rule 170 in comparing the Model Rule to the comparable Model Code rule
state the test on Rule 3.1 (SCR 170) is an objective test. Since the rule provides no test to
determine whether the claim is frivolous, it is void as to vagueness and therefore unconstitutional
as it fails to give Respondent adequate notice.
The language is unconstitutional because it creates a " rule or standard which [is] so vague
and indefinite that no one could know what it was." A. B. Small Co. v. American Sugar Refining Co.,
267 U.S. 233, 239-40, 69 L. Ed. 589, 45 S. Ct. 295 (1925). "'The void-for-vagueness doctrine
requires that a penal statute define the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a manner that does not encourage arbitrary
and discriminatory enforcement.'" Posters ' N' Things, Ltd. v. United States, 511 U.S. 513, 525, 128
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L. Ed. 2d 539, 114 S. Ct. 1747 (1994) (quoting Kolender v. Lawson, 461 U.S. 352, 357, 75 L. Ed.
2d 903, 103 S. Ct. 1855 (1983)). Due process requires that a State provide meaningful standards
to guide the application of its laws. See Kolender v. Lawson, 461 U.S. 352, 358 (1983) . A state law
that lacks such standards is void for vagueness. The void-for-vagueness doctrine applies not only
to laws that proscribe conduct, but also to laws that vest standard less discretion in the trier of fact
to fix a penalty. See United States v. Batchelder, 442 U.S. 114, 123 (1979). Because no discovery
was allowed and Mr. Mirch was not prepared for a motion for summary judgment, Rule 170 in its
application was also sufficiently vague to constitute a violation of Mr. Mirch constitutional rights.
There was absolutely no adjudication of the summary judgment motion, Judge Hardesty simply
abused his power is making a finding not only supported by the facts, but knowingly contrary to
evidence proffered but not accepted. See IV AP 760, V AP 848-1052, VI AP 1053-1323, Motion
for Reconsideration with substantial exhibits.
The Motion for Reconsideration contained a number of exhibits and affidavits which proved
that documents were being destroyed (Mirch contract); the Mirch/Frank contingent fee contract
existed; that McDonald Carano knew how Judge Hardesty was going to rule prior to his ruling; and
that the Bruce Beeseley as a member of the Nevada State Bar Disciplinary Panel had used his
position to cause Mr. Mirch to be disbarred for an improper order.
VI
ARGUMENT
a. The State Bar's Complaint Failed to Provide Adequate Notice of What Conduct
Constituted the Alleged Wrong Doing in Violation of Appellant Mirch's Due Process
Rights
1. Introduction
In the Complaint, the State Bar of Nevada failed to provide adequate notice of what conduct
constituted the alleged wrongdoing which violated SCR 170. The State Bar merely incorporated by
reference Judge Hardesty' s Order granting summary judgment and imposing sanctions against Mr.
Mirch. SCR 170 is not the subject of Judge Hardesty's Order.
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SCR (Nevada Supreme Court Rule) 170 states as follows:
5
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein,
unless there is a basis for doing so that is not frivolous, which includes a good faith argument for
an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal
proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless
so defend the proceeding as to require that every element of the case be established. X AP 180
35
In a two page bare bones Complaint, the Bar simply makes four general allegations: (1)Mr.
Mirch filed a complaint; (2) Judge Hardesty entered an Order regarding the complaint; (3) the State
Bar adopts all factual and legal findings by Judge Hardesty in his Order; and (4) Mr. Mirch violated
SCR 170. More specifically, the State Bar alleged:
1. In September 2002, Respondent filed a Complaint and a First Amended
Complaint in the Second Judicial District Court, which named the law firm of
McDonald, Carano, and Wilson, LLP, and Nevada attorney Leigh Goddard as
Defendants.
2. On October 9, 2003, the Honorable James W. Hardesty, District Judge
entered an Order relevant to the pending Complaint. A certified copy of this Order
is attached hereto as Exhibit 1 and is incorporated by reference herein.
3. As part of this disciplinary Complaint, the State Bar of Nevada further
adopts and incorporates by reference each and every factual finding and legal finding
made by the Court in the attached Order.
4. Based upon the above, Respondent's conduct is in violation of SCR 170
(Meritorious claims and contentions).
X AP 1, State Bar Complaint
Although the State Bar alleged a violation of Supreme Court Rule 170 (Meritorious Claims and
Contentions), the Bar failed to allege which facts contained in Judge Hardesty' s Order support the
5
elements of SCR 170. The State Bar failed to even recite the elements of a SCR 170 violation.
The notice and hearing requirements guaranteed through the Fifth and Fourteenth
Amendments to the United States Constitution are not new principles. The concepts ensuring basic
fairness are embedded in our constitutional and political history and the mandates of the concepts
are certain.
For more than a century the central meaning of procedural due process has been clear: Parties
whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right
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they must first be notified. It is equally fundamental that the right to notice and an opportunity to be
heard must be granted at a meaningful time and in a meaningful manner. Fuentes v. Shevin, 407 U.S.
66, 80, 92 S.Ct. 1983, 1994 (1972)(internal citations omitted). Judge Hardesty made it impossible
for Mr. Mirch to be heard as he would not allow him to oppose his motion for summary judgment.
He decided to hurt Mr. Mirch and did so.
"Basic concepts of fairness and due process require that one who is charged with a wrongdoing
be put on notice as to what conduct constitutes the wrong." Whitney v. State Employment Security
Dep't, 105 Nev. 810, 813 (1989).
The Supreme Court Rules mandate that the State Bar fulfill the basic concepts of due process.
SCR 105(2) requires the State Bar to file a clear and specific written complaint that informs the
respondent of the charges against him. By simply deferring to the civil conclusions of Judge
Hardesty, the Bar failed to provide a clear and specific written complaint in violation of SCR 105(2)
and due process requirements.
It was improper for the State Bar to adopt Judge Hardesty' s Order without independent
factual and legal allegations. Indeed, prior to the hearing, Bar Counsel acknowledged,". . . we have
to independently corroborate what Judge Hardesty says in his Order. We have to produce
independent corroborating evidence in that regard, and we will." Bar Counsel concedes that evidence
independent of Judge Hardesty's Order is required at the Hearing. Likewise, independent factual and
legal allegations were required in the Formal Complaint. It was patently improper to refuse to allow
Mr. Mirchs Motion for Reconsideration to be considered. It proves that Judge Hardesty was biased
and only interested in protecting McDonald Carano and Lionel Sawyer Colins and their large clients
that Mr. Mirch had won cases over (Wells Fargo, Bank of America, IGT, HCA, Washoe County).
Judge Hardesty was also interested in protecting Bonanza Reporting for all the cases it reported for
the Court Reporters lawyer brother. In Wiseman v. Washoe County, over 100 pages were missing.
That deposition involved testimony of missing money from Judge Agostis Court Room. These
issues should have been heard. Judge Hardesty made sure they would not be heard and went out of
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his way to prevent Mr. Mirch from pursuing large actions involving the largest industries in the State
of Nevada (Gaming, Banking).
2. The State Bar Provided Insufficient Notice as to What Alleged Wrongdoing
Constituted a Violation of SCR 170
The State Bar provided Respondent Mirch with insufficient notice of what alleged
wrongdoing constituted the violation of SCR 170. The State Bar improperly relied upon Judge
Hardesty's Order alone, which was insufficient for the State Bar proceedings. In opposition to
Respondent Mirch's Motion to Dismiss based upon insufficient notice, the State Bar argued that it
was "adopting and incorporating the factual and legal findings made by Judge Hardesty in his Order."
However, Judge Hardesty makes factual and legal findings in reference to NRCP 12(b)(5) and
imposes sanctions pursuant to NRCP 11, Judge Hardesty does not make any factual and legal
findings specific to a SCR 170 violation. By adopting Judge Hardesty's factual and legal findings,
the State Bar adopted factual and legal findings relating to summary judgment and sanctions. The
State Bar adopted no factual and legal findings relating to ethical rules because Judge Hardesty did
not make any findings relating to ethical rules. NRCP 11 and SCR 170 are not identical nor are the
rules interchangeable. In the twelve page Order, Judge Hardesty referenced SCR 170 only to say:
Initially, the Court believes Mirch has committed a violation of the Rules of
Professional Conduct. See SCR 170. Pursuant to the Nevada Code of Judicial
Conduct, Canon D(2), the Court refers this matter to the Nevada State Bar Counsel
for disciplinary investigation. Defendants' counsel is ordered to send a copy of this
Order and all pleading in this case to Bar Counsel within 10 days of the date of this
Order.
Judge Hardesty does not make any findings as to what facts constitute the violation of SCR 170 nor
does Judge Hardesty set forth the elements of a SCR 170 violation.
The State Bar improperly relied upon Judge Hardesty's Order. The Order finds a violation of
NRCP 11, not a violation of 5CR 170. The State Bar acknowledges that there are differences in the
elements of NRCP 11 and SCR 170. Further, the State Bar acknowledges the differences in the
standard of proof required to find a violation of NRCP 11 and SCR 170. The Bar's sole reliance upon
an order in a civil proceeding was improper and prejudiced Respondent Mirch. Without specific
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allegations regarding ethical violations, Appellant Mirch was not prepared to adequately defend
himself against the allegations and arguments made by the Bar at the hearing. Indeed, Mrs. Mirch
perhaps said it best when she argued that her defense reminded her of her children's video game,
"where all these things are coming out and you just have to shoot at them randomly because you
don't know what's coming at you. What is it that Mr. Mirch did wrong? Was it in the facts of the
case? Was it in the legal basis for the case? Is it Doe plaintiffs? Is it because he didn't bring suit in
federal court? Or is it because he didn't serve it until even within the rules of the 120 days?" XV AP
810:4-7. Bar Hearing Transcript
3. STATE BAR FAILED TO PROVIDE ADEQUATE NOTICE OF PRIOR
UNCHARGED BAD ACTS
The State Bar failed to provide Respondent Mirch with adequate notice that the State Bar
would introduce collateral evidence of prior uncharged bad acts. Throughout the proceedings,
Counsel for the State Bar argued that Mirch's conduct in this matter was not isolated, but
represented a pattern of practice. Counsel for the State Bar introduced evidence, despite objections,
of uncharged prior bad acts. Judge Hardesty does mention two instances of alleged prior bad acts in
his Order, Judge Hardesty does not consider all of the allegations of prior bad acts presented by the
State Bar. The State Bar failed to follow NRS 48.045 which requires a hearing outside the presence
of the panel or jury in civil and criminal cases. Instead, these alleged bad acts were simply assumed
to be correct when they were not. To make matters worse the State Bar lost proof of bad acts and
determinations that lacked for the most part any finding of improper conduct. Finally, Mr. Mirch
had prior to the initiation of this Bar Complaint, an action in Federal District Court which alleged
wrongful conduct by the Bar in attempting to prevent legitimate litigation from proceeding. See
Mirch v. Beesley, et al., docket nos. 07-15143, 07-16046 pending before the Ninth Circuit Court
of Appeals. That complaint was dismissed without any opportunity to be amended.
Without advanced notice that the State Bar would present testimony regarding a prior order
by Judge Riegle in an unrelated matter and another by Judge Hunt in an unrelated matter, (both of
these orders were entered long after the filing of the Bar Complaint and are wholly irrelevant),
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Respondent Mirch was unprepared to defend himself against the allegations. The allegations of prior
and subsequent uncharged bad acts were vague, making it very difficult to defend against without
prior notice.
4. STATE BAR FAILED TO PROVIDE ADEQUATE NOTICE THAT IT
WOULD ALLEGE MIRCH'S FAILURE TO INVESTIGATE VIOLATED
SCR 170
The State Bar of Nevada failed to provide Appellant Mirch adequate notice that the State
Bar would allege and argue at the Hearing that Appellant Mirch had a duty pursuant to SCR 170
to investigate and that Mirch's failure to investigate violated SCR 170. The State Bar's Formal
Complaint relied solely upon the factual and legal findings contained in Judge Hardesty' s Order.
Judge Hardesty's Order does not state that Mirch had a duty to investigate. Despite the lack of notice,
the State Bar argued throughout the hearing that Mirch had a duty to investigate prior to filing the
Complaint against Ms. Goddard and that Mirch's failure to investigate constituted a violation of SCR
170.
b. RESPONDENT MIRCH WAS DENIED HIS RIGHT TO CONFRONT HIS ACCUSER
Respondent Mirch was denied his right to confront his accuser, Judge Hardesty. The initial
complaint in this ease was made to the State Bar by then District Court Judge Hardesty. Judge
Hardesty directed that his written order be forwarded to the State Bar. Respondent Mirch
subpoenaed Judge Hardesty and the State Bar quashed the subpoena. Without the personal
appearance of Judge Hardesty, the State Bar, despite objections, was allowed to introduce Judge
Hardesty's Order as evidence.
In almost every setting where important decisions turn on questions of fact, due process
requires an opportunity to confront and cross-examine adverse witnesses. See e.g. ICC v. Louisville
& N.R. Co., 227 U.S. 88, 93-94 (1913); Willner v. Committee on Character & Fitness, 373 U.S. 96,
103-104 (1963).
Certain principles have remained relatively immutable in our jurisprudence.
One of these is that where governmental action seriously injures an individual, and
the reasonableness of the action depends on fact findings, the evidence used to
prove the Government's case must be disclosed to the individual so that he has an
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opportunity to show that it is untrue. While this is important in the case of
documentary evidence, it is even more important where the evidence consists of the
testimony of individuals whose memory might be faulty or who, in fact, might be
perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice or
jealousy. We have formalized these protections in the requirements of confrontation
and cross-examination. They have ancient roots. They find expression in the Sixth
Amendment. . . This Court has been zealous to protect these rights from erosion. It
has spoken out not only in criminal cases, but also in all types of case where
administrative.. . actions were under scrutiny.
Greene v. McElroy, 360 U.S. 437, 496-497 (1959).
The practice of law is a valuable property right. No one can be deprived of this valuable
property right without due process of law. Burleigh v. State Bar, 98 Nev 140 (1982). The
fundamental requirements of due process are notice and an adequate opportunity to appear and
contest charges. See In re Shieh, 738 A.2d 814, 816-17 (D.C.1999); Jerome Mgmt. v. District of
Columbia Rental Hous. Comm'n, 682 A.2d 178, 183 (D.C.1996).
The United States Supreme Court has found in considering notice and due process
requirements that State Bar Disciplinary proceedings are quasi-criminal in nature. See In re Ruffalo,
supra. Sixth Amendment rights may be implicated where the statement of a witness is introduced
without giving the respondent a right to cross-examine the witness. See, e.g., Crawford v.
Washington, 541 U.S. 36, 59, 124 S.Ct. 1354 (2004). The principal evil at which the Confrontation
Clause was directed was the use of ex parte examinations as evidence against the accused. See Coy
v. Iowa, 487 U.S. 1012, 1015 (1988).
Respondent Mirch should have been afforded the right to call Judge Hardesty as a witness,
especially because Judge Hardesty's Order was offered as evidence against Mirch, absent any
independent investigation of the Bar of the allegations contained therein. Although the Bar argued
that it would be improper for Mirch to question Judge Hardesty about his thought processes, there
was no indication that Mirch intended to question Judge Hardesty about his thought processes. That
objection is properly made only after Mirch sought to inquire about Judge Hardesty's thought
processes.
c. THE PANEL IMPROPERLY ALLOWED THE UNSWORN TESTIMONY OF
BRUCE LAXALT
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The State Bar of Nevada's Northern Disciplinary Panel should have granted Ms. Mirch's
motion to strike Bruce Laxalt's testimony. The February 5, 2007, disciplinary hearing against Kevin
J. Mirch, Esq., was a formal hearing. According to Nevada Supreme Court Rule 105(2)(e), during
formal hearings, "[t]he rules applicable to the admission of evidence in the district courts of Nevada
govern admission of evidence before a hearing Panel." Nevada District Court rules require witnesses
to testify under oath. Specifically, Nevada District Court Rule 43(b) provides that "[a}n oath is
required to be taken ...." (emphasis added). Here, Mr. Laxalt did not testify under oath. IN fact, the
Chairman of the disciplinary committee and the witness realized this oversight after Mr. Laxalt had
already testified, and the Chairman accepted a retroactive application of the oath:
MR. SOURWINE: Now, youre excused. Thank you very much.
(Brief off the record discussion)
XII AP 1125:5-6.
The off record discussion was the realization by Mr. Sourwine and Mr. Laxalt that Mr. Laxalt
had just given testimony without first begin sworn in. The Chairman Mr. Sourwine then went back
on the record to have the reporter swear Mr. Laxalt in and then asked him to apply the oath
retroactively to the prior testimony:
MR. SOURWINE: Mr. Laxalt, youre still in the room. Id like the court reporter
to administer the usual oath to you (Witness sworn at this
time)
MR. SOURWINE: Mr. Laxalt, was your prior testimony truthful in accordance with the
oath you just took?
MR. LAXALT: Yes. Sir.
XII AP 125: 10-13.
This retroactive use of the oath was improper. As a result, the Panel should have granted Ms.
Mirch's motion to strike Mr. Laxalt's testimony. The Nevada Supreme Court erred when it
determined that Mr. Laxalt had been sworn in, and ignores the fact that the swearing was done
after the fact, Mr. Laxalt had already testified, and was not subject to penalty of perjury during his
testimony.
d. THE DECISIONS BELOW IGNORED THE NOTICE AND EVIDENTIARY
REQUIREMENTS FOR SUMMARY JUDGMENT
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The threshold issue in the context of sua sponte summary judgment is, whether the party was
given notice that summary judgment is being contemplated by the court. Gibson v. Mayor and
Council of the City of Wilmington, 355 F.3d 215, 222-23 (3d Cir. 2004).
The underlying bar complaint (Judge Hardestys order) is unconstitutional; in that Mr. Mirch
was not afforded due process. Judge Hardesty took over a case being handled by Judge Adams;
without notice to anyone changed a motion to dismiss into one for summary judgment; refused to
allow Mr. Mirch discovery specifically requested in his opposition to motion to dismiss; refused to
acknowledge Bankruptcy Judge Riblets order to transfer all of Dr. Franks assets to a Chapter 7
Trustee as part of a conversion from a Chapter 11 to a Chapter & Bankruptcy; and refused to follow
applicable precedent.
Mr. Mirch had not means to protect himself from a number or horrific findings were adverse
to the fact and law of the case. For no apparent reason other than to prevent the discovery of
improper conduct by a prominent firm Judge Hardesty provided as follows:
Footnote 11: Mirch seeks further discovery on all claims. However, nothing in discovery will
salvage claims that are not legally cognizable.
III AP 640 Judge Hardestys Order.
Mr. Mirchs Motion for Reconsideration provided a substantial number of exhibits that proved that
McDonald Carano had interfered with his initial contract with Dr. Frank and subsequent settlement
agreements; conspired to cause Mr. Mirch to be disbarred, and prevented him from disclosing
misconduct as a Whistle blower. IV AP 760, V AP 848-1052, VI AP1053-1267, VII AP 1268-1321,
Motion to Reconsider and exhibits.
Judge Hardesty ignored this evidence in favor of his own personal pursuit for a seat on the
Nevada Supreme Court, which was supported by McDonald Carano law firm. In fact, on senior
partner hosted a fund-raising event for Judge Hardesty just days before he denied Respondents
motion for reconsideration.
Under Canon 5 Judge Hardesty could not accept contributions from the McDonald Firm or
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any member of the firm:
(5) A judge shall not accept, and shall urge members of the judge's family residing in the
judge's household* not to accept, a gift, bequest, favor or loan from anyone except for:
(h) any other gift, bequest, favor or loan, only if: the donor is not a party or other
person who has come or is likely to come or whose interests have come or are
likely to come before the judge; and, if its value exceeds $ 200, or an aggregate
value of $ 200 for multiple gifts received from a single donor, the judge reports it
in the same manner as the judge reports compensation in Section 4(I).
McDonald Carano was not just acting as attorneys but was a party before Judge Hardesty. Judge
Hardesty should not have accepted contributions from McDonald Carano. By violating Canon 5,
Judge Hardesty created an appearance of impropriety and further established his bias against Mr.
Mirch. For that reason alone, Judge Hardestys order should have been reversed, including the
dismissal of the Bar Complaint.
This is an ugly case. A lawyer sued opposing counsel for threats that were made, which have
come to fruition (sued for malpractice, criminal charges, and disbarment). The district court took
a renegade approach to the matter, but that same district court judge now sits on the Nevada Supreme
Court yielding tremendous power. The ugliness of the facts in this case have caused the district
court, and now the Nevada Supreme Court, to dispense with constitutional rights, legal rights,
discovery rights, and well established principals of law in order to justify a speedy disposition in
favor of the Respondents.
e. The Bar Complaint Misapplied Well Established Law Directly Controlling the
Outcome of the Case.
The State Bar and Nevada Supreme Court Court misapplied directly controlling precedent
in its analysis of a dispositive issue. N.R.A.P. 49(c)(2)(ii). Specifically to support the conclusion
that the district court properly entered summary judgment, this Court fell to red-herring argument.
(i.e., character assassination of Mr. 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 Justices violation of Mr. Mirchs constitutional guaranty of due process, the
Nevada Supreme Court violated the United States and Nevada Constitutions, 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
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(1986) (court may enter summary judgment sua sponte as long as the losing party was on notice he
had to come forward with all of his evidence); Soebbing v. Carpet Barn, Inc., 109 Nev. 78l 847 P.2d
731(1993) (Regardless of a claims merit, a district court may not sua sponte enter summary
judgment against it until the law requiring notice and a reasonable opportunity to be heard).
Respondent was denied due process when the court waived notice. Waiver is an intentional
relinquishment or abandonment of a known right or privilege. D.H. Overmyer Co. Inc. Of Ohio v.
Frick Co., 405 U.S. 174, 185, 92 D. S.Ct 775, 782, 31 L.Ed.2d 124 (1972), Johnson v. Zerbst, 302
U.S. 458, 462 (1938); and as the United States Supreme Court has said in the civil area, we do not
presume acquiescence in the lost of fundamental rights, Ohio Bell Tel. Co. v. Public Utilities
Commn, 301 U.S. 292, 307 (1937). That standard is not satisfied here. The fundamental
requirement of due process is the opportunity to be heard. Grannis v. Ordean, 234 U.S. 385, 394
(1914). It is an opportunity which must be granted at a meaningful time and in a meaningful
manner. Armstrong v. Manzo Et. Ux, 380 U.S. 545, 85 S. Ct. 1187, 13 L. Ed. 2d 62 (1965). Mr.
Mirch went to the courthouse prepared for a motion to dismiss. Mr. Mirch did not have all of his
evidence with him to oppose a summary judgment motion, because there was no notice that a
summary judgment was to be heard. The record confirms that the hearing was on a motion to
dismiss. The due process requirement of adequate notice is not waived by appearance at a hearing
In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L. Ed. 2d 527 (1967). Furthermore, converting the
motion well into the hearing was not notice at a meaningful time, and provided Mr. Mirch no
opportunity to retrieve his evidence. In the present case, the trial court fully denied this right to Mr.
Mirch, when even at the hearing, the district court expressed its indecision in whether it would
convert the motion to dismiss into a summary judgment. In fact, throughout the hearing, the district
court acted as if it were ruling on a motion to dismiss:
Well into the hearing, the district court stated that it is compelled to consider the motion as
one for summary judgment, and went forward with a hearing despite Mr. Mirchs prior objections.
This sua sponte act of the district court violated Mr. Mirchs right to ten days notice, which this the
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Nevada Bar and Supreme Court found acceptable.
The absence of notice to Mr. Mirch is no excusable even under the harmless error rule. In
that regard footnote 8 at page 4 of the Order states that the failure to comply with the notice
requirement of NRCP is subject to harmless error. Exber, Inc. v. Sletten Construction Co. 92 Nev
721, 558, P.2d 517, 524 (1976). In Exber, a motion for summary judgment in favor of a party
joining in another partys motion at the hearing was not prejudicial to the non-moving party because
the court already had before it a motion for summary judgment which was joined at the hearing.
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 if the opposing party would not suffer prejudice. Cheek v. FNF Constr.
Inc. 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 hearing , 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 that Dr. Frank told her that
he was told by his attorney to destroy the contract, expert witness testimony by affidavit of the
bankruptcy issues, and the controlling order of the U.S. Bankruptcy Court in the Frank bankruptcy
case. VIII AP 1604.
Mr. Mirchs due process were ignored by The District Court, Nevada State Bar and Nevada
Supreme Court.
VII
CONCLUSION
For the foregoing reasons, Respondent respectfully requests that this Honorable Court find
that the order of disbarment is founded on a record of due process violations, and therefore reject
imposing reciprocal discipline by the Ninth Circuit.
Dated this 3rd day of October, 2008.
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MIRCH LAW OFFICES
By __/s/ Marie C. Mirch____________
Marie Mirch
Counsel for Respondent

10 6 08 Doc 13 in Re Mirch Response To Order To Show Cause

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