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In re Discipline of Treffinger

Supreme Court of Nevada

May 11, 2017

IN THE MATTER OF DISCIPLINE OF TIMOTHY R. TREFFINGER, BAR NO. 12877.

         Petition under SCR 111 to suspend and refer Nevada lawyer for discipline based on conditional guilty plea under NRS 453.3363 to felony possession of a controlled substance; motion to set aside interim suspension under SCR 111(7).

         Petition granted; interim suspension stayed.

          C. Stanley Hunterton, Bar Counsel, and Stephanie A. Tucker Barker, Assistant Bar Counsel, Las Vegas, for the State Bar of Nevada.

          Timothy R. Treffinger, Las Vegas, in Pro Se.

         BEFORE THE COURT EN BANC.

          OPINION

          PICKERING, J.

         Timothy Treffinger is a Nevada-licensed lawyer who pleaded guilty to one count of possession of a controlled substance (heroin), a class E felony under NRS 453.336. The district judge who accepted Treffinger's plea placed him on probation for three years and in the diversion program NRS 453.3363 creates for first-time offenders. If Treffinger succeeds in the diversion program, the criminal charges against him will be dismissed, and he will avoid a final judgment of conviction.

         Treffinger notified the State Bar of Nevada of his plea, as SCR 111(2) requires. Sometime later, bar counsel filed a petition under SCR 111(4), advising this court of Treffinger's felony possession plea. The State Bar seeks Treffinger's interim suspension and referral for formal bar discipline, as SCR 111 directs when a lawyer is convicted of a felony. Treffinger disputes whether a conditional guilty plea under NRS 453.3363 is a "conviction" that triggers automatic suspension under SCR 111(7). He also urges that, assuming his plea does constitute a conviction for purposes of SCR 111, "good cause" exists to "set aside" or stay his suspension.

         I.

         A.

         Nevada's diversion program for first-time narcotics offenders is modeled on section 414 of the Uniform Controlled Substances Act, 9 pt. IV U.L.A. 787-88 (2007) (UCSA). See NRS 453.011 (adopting the UCSA, with amendments, in Nevada and codifying it at NRS 453.011 to NRS 453.348). Under NRS 453.3363(1), a court may place a first-time offender on probation and into a diversion program "without entering a judgment of conviction." See UCSA § 414(a). Provided the offender fulfills all the terms and conditions of probation and the program's education and rehabilitation requirements, "the court shall discharge the accused and dismiss the proceedings against him or her." NRS 453.3363(3); see UCSA § 414(b). Dismissal allows the offender to avoid a final judgment of conviction:

Except as otherwise provided in subsection 5, discharge and dismissal under [NRS 453.3363(3)] is without adjudication of guilt and is not a conviction for purposes of this section or for purposes of employment, civil rights or any statute or regulation or license or questionnaire or for any other public or private purpose ....

NRS 453.3363(4) (emphasis added); UCSA § 414(c); see also Hohenstein v. Nev. Emp't Sec. Div., 131 Nev., Adv. Op. 17, 346 P.3d 365, 366-67 (2015) (reversing adverse unemployment benefits decision that treated an employee's guilty plea under NRS 453.3363 as establishing a felony conviction, though he was midway toward successfully completing probation and his diversion program).

         NRS 453.3363(4) differs from UCSA section 414(c) in its lead-in language, "[E]xcept as otherwise provided in subsection 5." Where the counterpart UCSA provision has no exceptions, subsection 5 of NRS 453.3363 creates a Nevada-specific exception to the rule against treating diversion-program proceedings as convictions. The exception allows a professional licensing board such as the State Bar of Nevada (and, by extension, this court) to consider proceedings ...


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