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Hawkins v. Eighth Judicial District Court of State of Nevada

Supreme Court of Nevada

December 28, 2017

X'ZAVION HAWKINS, AN INDIVIDUAL, Petitioner,
v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE JOANNA KISHNER, DISTRICT JUDGE, Respondents, and GGP MEADOWS MALL, A DELAWARE LIMITED LIABILITY COMPANY; MYDATT SERVICES, INC., D/B/A VALOR SECURITY SERVICES, AN OHIO CORPORATION; AND MARK WARNER, AN INDIVIDUAL, Real Parties in Interest.

         Original petition for a writ of mandamus challenging a district court order awarding attorney fees, as a sanction, for work done by later-disqualified attorneys.

          Injury Lawyers of Nevada and David J. Churchill and Jolene J. Manke, Las Vegas, for Petitioner.

          Backus, Carranza & Burden and Edgar Carranza, Las Vegas, for Real Parties in Interest Mydatt Services, Inc., dba Valor Security Services; and Mark Warner.

          Lee, Hernandez, Landrum, Garofalo and David S. Lee and Charlene Renwick, Las Vegas, for Real Parties in Interest GGP Meadows Mall; Mydatt Services, Inc., dba Valor Security Services; and Mark Warner.

          BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.

          OPINION

          HARDESTY, J.

         In this petition for extraordinary writ relief, we address what the district court should have considered when awarding attorney fees sought for work done by a disqualified firm. We conclude that the district court must consider the factors from the Restatement (Third) of the Law Governing Lawyers § 37 cmt. d (2000) when awarding attorney fees sought for a disqualified law firm's work.

         FACTS AND PROCEDURAL HISTORY

         At Meadows Mall in Las Vegas, petitioner X'Zavion Hawkins was shot multiple times by another patron while attending an event. Hawkins consulted with attorney Paul Shpirt at the Eglet Law Group concerning the shooting. Shpirt initially agreed to represent Hawkins, but later declined representation after reviewing the evidence. Hawkins retained a different attorney, who filed suit against real parties in interest GGP Meadows Mall; Mydatt Services, Inc., dba Valor Security Services; and Mark Warner (collectively, Meadows Mall) for premises liability and failure to provide adequate security.

         Shpirt left the Eglet Law Group and began working at Lewis Brisbois Bisgaard & Smith (LBBS). In the underlying action, Meadows Mall retained LBBS to assist its separately retained counsel with its defense in the matter. Meadows Mall then sought discovery sanctions and moved to dismiss Hawkins' complaint based on Hawkins changing his version of events, providing false information, and/or omitting information required by NRCP 16.1 from his discovery responses.

         When LBBS discovered the conflict stemming from Shpirt's prior representation of Hawkins and the firm's current representation of Meadows Mall, LBBS screened Shpirt from the case. However, LBBS did not notify Hawkins of the conflict. When Hawkins discovered the conflict involving Shpirt, he moved to disqualify LBBS. While that motion was pending, the district court scheduled an evidentiary hearing to determine whether to dismiss Hawkins' complaint. LBBS participated in the evidentiary hearing and argued for dismissal. The district court denied the motion to dismiss, but it granted as a discovery sanction a curative jury instruction for Hawkins' discovery abuses, Thereafter, the district court disqualified LBBS because the firm failed to notify Hawkins and failed to obtain his informed consent regarding the conflict pursuant to RPC 1.9 (duties to former clients) and RPC 1, 10(e) (imputation of conflicts of interest). Meadows Mall substituted LBBS with Backus, Carranza & Burden.

         Following the order imposing sanctions for Hawkins' discovery abuses, Meadows Mall sought attorney fees, requesting $29, 201 for LBBS; $13, 681.50 for its other retained counsel; and $11, 442, 50 for Backus, Carranza & Burden. At the hearing on the motion for attorney fees, the district court expressed concern over the amounts requested. Meadows Mall explained that it had to do extra work to ensure that none of the work that was negatively impacted by LBBS's conflict was used. Counsel for i Hawkins requested supplemental briefing to consider whether a disqualified law firm could receive attorney fees. Both parties provided supplemental briefing, and the district court ordered Hawkins to pay $41, 635 for Meadows Mall's attorney fees, which was less than the total amount requested but which included $19, 846 for work done by LBBS. The district court concluded that it had discretion to award attorney fees as sanctions, rejected Hawkins' contention that awarding fees to LBBS would be inappropriate, and noted that it reduced each of the law firms' awards from the amount requested because of "the number of lawyers and law firms involved in the Motion and Hearing at issue . . . [and] to be consistent with the nature and scope of the record and applicable law."

         The sole issue we address in this opinion is whether the district court abused its discretion in failing to consider LBBS's disqualified status in ...


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