petition for a writ of mandamus challenging a district court
order awarding attorney fees, as a sanction, for work done by
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.
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
HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
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.
AND PROCEDURAL HISTORY
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
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.
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.
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."
sole issue we address in this opinion is whether the district
court abused its discretion in failing to consider LBBS's
disqualified status in ...