IN THE MATTER OF DISCIPLINE OF TIMOTHY R. TREFFINGER, BAR NO. 12877.
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).
granted; interim suspension stayed.
Stanley Hunterton, Bar Counsel, and Stephanie A. Tucker
Barker, Assistant Bar Counsel, Las Vegas, for the State Bar
Timothy R. Treffinger, Las Vegas, in Pro Se.
THE COURT EN BANC.
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.
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.
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).
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