LIBORIUS I. AGWARA, Petitioner,
THE STATE BAR OF NEVADA; AND SOUTHERN NEVADA DISCIPLINARY BOARD, Respondents.
petition for a writ of mandamus or prohibition challenging
two subpoenas duces tecum served on petitioner.
Petition granted in part and denied in part, with
instructions. William B. Terry, Chartered, and William B.
Terry, Las Vegas, for Petitioner.
Bar of Nevada and Stephanie A. Tucker Barker and Janeen V.
Isaacson, Las Vegas, for Respondents.
original petition for a writ of mandamus or prohibition we
are asked to consider whether an attorney can assert his
Fifth Amendment right against self-incrimination to quash
subpoenas issued by the State Bar that seek production of
client accounting records and tax records. With regard to the
requested client accounting records, we adopt the three-prong
test under Grosso v. United States, 390 U.S. 62
(1968), to conclude that the right against self-incrimination
does not protect petitioner from disclosure. However, with
regard to the requested tax records, we conclude that the
Southern Nevada Disciplinary Board must hold a hearing to
determine how the subpoenaed tax records are relevant and
material to the State Bar's allegations that petitioner
mismanaged his client trust account and whether there is a
compelling need for those records. Accordingly, we deny the
petition in part and grant it in part.
AND PROCEDURAL HISTORY
April 2014, petitioner Laborious I. Agwara, Esq., testified
at his personal bankruptcy proceedings that he had not
implemented a reliable or identifiable system of accounting
for his client trust account. Counsel for petitioner's
bankruptcy proceedings and the presiding bankruptcy judge
advised respondent State Bar of Nevada of petitioner's
potential ethical violations. As a result, the State Bar
opened a grievance file to investigate petitioner's trust
account management. Moreover, the bankruptcy court froze
petitioner's Nevada State Bank trust account.
State Bar then obtained petitioner's trust account
records from Nevada State Bank, which indicated that he
transacted client monies through a Wells Fargo Bank operating
account while his Nevada State Bank trust account was frozen.
The State Bar also obtained records from Wells Fargo Bank
which revealed that petitioner commingled his client,
personal, and law practice funds through his operating
one month after the bankruptcy court lifted the freeze on
petitioner's Nevada State Bank trust account, petitioner
opened a Wells Fargo Bank trust account. Wells Fargo Bank
records established that petitioner routinely failed to fully
distribute client funds deposited into this trust account. In
response to the bank records obtained from Nevada State Bank
and Wells Fargo Bank, coupled with petitioner's testimony
from his bankruptcy proceedings, the State Bar served
petitioner with two subpoenas duces tecum.
first subpoena sought documents evidencing the creation and
applicable termination of the attorney-client relationship
with regard to certain individuals, documents relating to the
settlement or distribution of funds through the Nevada State
Bank trust account, and accounting records for this account.
The first subpoena also sought production of certain personal
and business tax returns, "with schedules, W-2's,
and 1099's issued to [petitioner's] employees,
contract personnel or other entities for the tax years 2009,
2010, 2011, 2012, 2013 and 2014." Petitioner objected to
the first subpoena and refused to produce the requested
documents by invoking his Fifth Amendment privilege against
second subpoena sought documents evidencing the creation and
applicable termination of the attorney-client relationship
involving transactions through the Wells Fargo Bank trust
account, documents relating to the settlement or distribution
of funds through this account, and accounting records. The
second subpoena also sought the same documents and records
for petitioner's operating account at Wells Fargo Bank.
Petitioner objected to the second subpoena and filed a motion
to quash, again asserting his Fifth Amendment right.
the chairman of respondent Southern Nevada Disciplinary Board
ordered petitioner to comply with the first subpoena and set
a telephonic hearing with regard to the second subpoena.
However, the chairman later vacated the hearing after
determining that the parties' submitted briefs were
sufficient to reach a decision. Thereafter, the chairman
rejected petitioner's objections to the second subpoena;
The State Bar filed a formal disciplinary complaint against
petitioner. This petition for writ relief followed.
court has original jurisdiction to grant a writ of mandamus
or prohibition, and issuance of such extraordinary relief is
solely within this court's discretion. Nev. Const, art.
6, § 4; Smith v. Eighth Judicial Dist. Court,107 Nev. 674, 677, 818 P.2d 849, 851 (1991). "A writ of
mandamus is available to compel the performance of an act
that the law requires as a duty resulting from an office,
trust, or station, or to control a manifest abuse of
discretion." We the People Nev. v. Miller, 124
Nev. 874, 879, 192 P.3d 1166, 1170 (2008); see also
NRS 34.160. A writ of prohibition is the counterpart to a
writ of mandamus and "may be issued to compel a person
or body exercising judicial functions to cease performing
beyond its legal authority." Halverson v.
Miller,124 Nev. 484, 487, 186 P.3d 893, 896 (2008);
see also NRS 34.320. Additionally, "this court
has inherent supervisory authority over the State Bar of
Nevada, and" has "the power to fashion an
appropriate remedy" to ensure that "all members of
the State Bar of Nevada, and all its functionaries, perform
their duties properly, " and therefore has the power to
consider a petition for writ relief arising from a State Bar
matter. O'Brien v. State Bar of Nev., 114 Nev.
71, 73, 952 P.2d 952, 953 (1998) (internal quotation marks
omitted); see also SCR 76(1) (providing that
"[t]he state bar is under the exclusive jurisdiction and
control of the supreme court"). We therefore exercise
our discretion to consider this petition for a writ of
mandamus or ...