Clark Hill Wins for Public Defender in Nevada State Bar Disciplinary Hearing

Las Vegas attorneys Dominic Gentile, Tiffany Solari, and Austin Barnum successfully represented a chief deputy public defender in a pro bono matter before the State Bar of Nevada Disciplinary Board.

In a three-count matter related to a subpoena issued to the Las Vegas police department (Metro), the disciplinary board unanimously ruled in favor of the public defender, Sarah Hawkins.

“The issue dealing with the issuance of investigative subpoenas is one that has been brewing for a long time, but it’s the first time it’s led to a state bar discipline issue,” Gentile said. “We’re thrilled for Sarah to have this outcome.”

Case Background

In her role as public defender, Hawkins issued a subpoena to get documents relating to a murder case and criminal charges that were previously filed against the victim of the murder. She had information that the materials sought would assist in establishing a self-defense.

Hawkins issued the subpoena to Metro without a court order. For more than a decade, however, Gentile said that Metro has commonly held that if a subpoena is sent to them without a court order, then it is invalid and they do not have to comply. Unless, of course, it is issued by the prosecutor.

Hawkins received a letter from an official at Metro indicating that they would not comply with her subpoena. Hawkins responded to that official with a letter of her own that provided statute citations covering subpoena rules and potential penalties for not complying.

Upon receiving Hawkins’ response, Metro’s legal team argued to Hawkins that her interpretation of the subpoena’s statutes was incorrect and that she was misleading the Metro official with whom she had been in communication. Metro also sent that response to the State Bar Grievance Committee, which took up the claim against Hawkins.

“That committee investigates every letter, and Sarah asked for our representation at that point,” Gentile said.

Case Proceedings

Gentile’s initial strategy involved a letter to the grievance committee investigator indicating that district court judges throughout Nevada are in disagreement over the state’s subpoena statutes and what is required by them. The investigator agreed, giving Gentile and Hawkins the ability to assert that she held a good-faith position in her response to Metro.

Because officials from Metro still believed that Hawkins’ response to their initial denial of the subpoena violated the rules of professional conduct, the grievance investigator offered Hawkins the opportunity to avoid a hearing by having a mentor review her subpoenas for 12 months. She declined in no uncertain terms

“We argued that her position is certainly a legitimate interpretation of the statute even if an appellate court decides differently later,” Gentile said. “We filed a motion to dismiss before the hearing by asserting that the bar didn’t have jurisdiction since there was no binding jurisprudence for the rules of professional conduct to be applied to.  They cannot supply an interpretation of the law, only the courts of review can do that.”

The three-person disciplinary panel agreed. On the issue of frivolous conduct, the panel asserted that the state’s subpoena statutes are indeed ambiguous as to whether a court order is required to validate a subpoena. Regarding an allegation of truthfulness in statements to others, the panel unanimously agreed that Hawkins believed her subpoena to be valid and therefore wasn’t trying to deceive the Metro employee.

“We’re ecstatic for Sarah to get this result,” Gentile said. “Tiffany and Austin were tremendous in their preparations for the hearing, which got a lot of attention from attorneys statewide since this issue of subpoenas has been an ongoing matter for several years.