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Electronically Filed
Aug 05 2016 08:47 a.m.
Tracie K. Lindeman
Clerk of Supreme Court

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IN THE SUPREME COURT OF THE STATE OF NEVADA


IN THE MATTER OF THE

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REINSTATEMENT OF

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ZACHARY BARKER COUGHLIN, ESQ.,

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BAR NO: 9473,

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Case No: 69723

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REQUEST TO SUBMIT THIS MATTER FOR COURT'S


CONSIDERATION

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The Bar's Reply Brief makes many fine points with respect to the
character defects Petitioner continues to exhibit. The Bar focused on

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whether Petitioner complied with the Chair's instruction for both sides
to provide the other any documents they intended to use at the hearing

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by the Friday before the Tuesday, August 25th, 2015 hearing. While the
Panel did not mention such issue in its written decision and admitted

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the majority of such exhibits, the fact that the Bar takes issue with it

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DocketCOURT'S
69723 Document
2016-24270
REQUEST TO SUBMIT THIS MATTER FOR
CONSIDERATION
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here makes it important, and Petitioner respectfully and humbly


submits the following as a means of addressing such.

The Bar stated it had not been provided1 an exhibit (a certified

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prescription medication history) offered that was on file in the

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underlying disability case, and addressed extensively therein 2 in pages


of argument, in multiple filings, including one included in the Bar's
own Pre-Hearing Packet.3

Assistant Bar Counsel Flocchini should have recognized and considered


identified as a possible exhibit the certified prescription history found
in the old filing in the disability case, Petitioner should have served a
copy of the Petition for Rehearing filed in the disability case on Ms.
Flocchini, rather than just serving one on her co-worker, Assistant Bar
Counsel Pattee, whom had yet to re-assign such case to Ms. Flocchini.
This identification of possible exhibits issue may be explainable

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For the same reasons that Petitioner felt

and due to confusion attendant to limitations on the subject matter at


issue in SCR 117(4) disability reinstatement hearings. Such would not

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ROA 939:12 to 943:24


ROA 190-205, 1352:20-25, 169:7-28, 202-204, 215, 225, 1354:1-12 See,
also, ROA 54:21-28, 85, 112
ROA 1354:1-12

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seem to allow for the introduction of the materials the Bar included in
the Pre-Hearing Packet. Regardless, the Bar included most of the

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materials from the underlying disability case in the Pre-Hearing


Packet, which it served on Petitioner and Panel a day before the

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hearing. The Bar's providing the entire Panel significant portions of


the record from the underlying disability case one day before the
hearing completely changed Petitioner's understanding of the
limitations4 in SCR 117(4) on the subject matter to be addressed at a
disability reinstatement hearing. Such seemed to make character and
disciplinary matters at issue, or present a possibly prejudicial lens
through which to view the fit to practice law and no longer disabled
prongs of SCR 117(4) if Petitioner was afforded no opportunity to rebut
anything therein or offer evidence in mitigation.
The Chair made a variety of rulings with regard to whether
character could be considered due to the complex evidentiary and
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SCR 117(2) provides any pending disciplinary proceeding or
investigation against the attorney shall be suspended. Consider, too,
the marked lack of character inquiry in the disability reinstatement
rule, SCR 117's, text compared to the text of the disciplinary
reinstatement rule in SCR 116). The differences between SCR 116 and
117 mirror the intent of NRS 178.405's prohibition against trying a
criminal defendant unless fit to stand trial. ROA 32:12-21, 33:22-28,
34:8-25, 35:16-28.

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relevancy issues presented in the distinctions between disciplinary


reinstatement hearings and disability reinstatement hearings,

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arguably ruling character evidence inadmissible. 5 The Bar chose not to


include Dr. Nielsen's first report from the underlying disability case in

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the Pre-Hearing Packet, nor did it include any of the eight exhibits the
Disciplinary Board attached to its 5/31/12 Disability Petition, nor the
second response6 filed in such matter by Petitioner from 8/8/14.
The Bar did not provide Petitioner a copy of its Pre-Hearing

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Packet and seek stipulations as to the admissibility of items therein


prior to serving the Panel a copy of the Pre-Hearing Packet. The Bar
decided what it wanted to give the Panel from the underlying
disability case and included such therein when it electronically served

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ROA 960:11-961:16, 962:15-16, 913-914, 917:5-19, 943:12-22.

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Such second response by Petitioner to the underlying disability


petition was offered and admitted as Exhibit 15 at ROA 155-252,
which contained most, if not all of the documents the Bar's Reply
Brief indicates were not provided or otherwise identified as possible
exhibits. ROA 948:16-951:10 (Exhibit 14, also admitted, the Orders
showing matters referenced in the underlying disability petition
were dismissed). Where the Panel admitted Exhibit 15, the import of
Exhibits 2 (ROA 932-934) and 9 being denied (ROA 939:12-943:24) is
lessened considering such contain the same certified prescription
medication history and medical records included in the admitted
Exhibit 15. ROA 951:14-954:10.

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the Pre-Hearing Packet a day before the hearing. 7 The Panel appeared
pleased that Petitioner thereafter, at the earliest opportunity, provided

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it so much of the material it wished had been included in the PreHearing Packet, including Dr. Nielsen's original report. 8

Petitioner does not believe SCR 117(4) allows for a Reply Brief

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here (nor does he wish to file anything beyond this), but, rather calls
for Objections from either side to be filed within 30 days of the filing of
the record. However, Petitioner respectfully asserts that he believes
the Bar's Reply Brief is timely filed.
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ROA 888-889, 938-940, 951:10-954:10, 963:17-965:17.

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ROA 962:17-965:17, 960:11-963:8, 974:12-975:2, 835:16-22, 33:13-23,
834:2-5, 855:18-24, 968:2-4, 945, 951:10-954:10, 939:12 to 943:24.
Petitioner was denied the same opportunity to have a Motion for
Reconsideration heard that the Bar had here. Assistant Bar Counsel
Flocchini forwarded the record as soon as she had her own Motion for
Reconsideration heard. The Bar's Reply Brief indicates the State Bar
asserted that it would file the Record on Appeal within three days of
the Panel's determination, whatever it was, after the Motion was
considered.
However, Ms. Flocchini is mistaken in that she had previously
indicated only that such would be forwarded within 3 days of her own
Motion for Reconsideration being denied: "The Office of Bar Counsel
will forward the record when the recommendation is final. As I stated
before, if the Motion for Reconsideration is denied, we will forward the
Record on Appeal no later than 3 business days after receipt of the
denial order. If the Motion is granted and a new recommendation
issued, we will proceed thereafter." Page 1 of Ex. 1 of Bar's 5/11/16
Opposition in this matter.

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The length of the exhibits the Bar references is due almost entirely

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to Petitioner including filings from the underlying disability case not

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included in the Bar's Pre-Hearing Packet that the Panel found useful. 9

Further, the Bar's Brief cites to a case interpreting a disciplinary

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rule, RPC 8.4, concerning whether a crime adversely reflects on one's


fitness to practice law, where the phrase fitness to practice law does
not appear in the disability rule, SCR 117(4), but rather the phrase fit
to practice law does. The distinction is important as this is not a
disciplinary case. The full panoply of rights under SCR 105(2)(b) is not
accorded in an SCR 117(4) disability reinstatement context because such
involves a much narrower inquiry. Here, Petitioner cited to numerous
cases in a disability inactive status reinstatement setting that
interpret the same fit to practice law phrase found in SCR 117(4).

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These exhibits were overly lengthy, but this was somewhat


unavoidable given they were old filings from years ago when
Petitioner was disabled that the Panel indicated presented useful
background material. With more time to have made decisions with
respect to the presentation of this content Petitioner could have more
appropriately limited the length thereof, but objections relative to
completeness may have issued.

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Petitioner respectfully acknowledges this Court made the correct


decision in placing him on disability inactive status. This filing is

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respectfully submitted.
Dated this August 4th, 2016

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/s/ ZACHARY BARKER COUGHLIN


ZACHARY BARKER COUGHLIN, ESQ.
NV Bar No. 9473 (disability inactive status)
4487 Los Reyes
Las Vegas, NV 89121
Pro Se Petitioner

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CERTIFICATE OF SERVICE
I certify that on August 4th, 2016 I mailed and or electronically
served a true and correct copy of this REQUEST TO SUBMIT THIS
MATTER FOR COURT'S CONSIDERATION upon the following:

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STATE BAR OF NEVADA


STANLEY HUNTERTON, ESQ.
BAR COUNSEL
R. KAIT FLOCCHINI, ESQ.
ASSISTANT BAR COUNSEL
3100 W. Charleston Blvd. Suite 100 Las Vegas, NV 89102
kaitf@nvbar.org;
Dated this August 4th, 2016
/s/ Zachary Coughlin_____
Zachary Barker Coughlin, Esq.
Petitioner

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