11 20 08 Doc 20 With Exhibits Mirch Post Hearing Brief 08-80074 69 Pages Total

7/29/2019 11 20 08 Doc 20 With Exhibits Mirch Post Hearing Brief 08-80074 69 Pages Total

1/69

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

MIRCH LAW OFFICESKevin J. MirchCA SBN 106473Marie C. MirchCA SBN 200833, NV SBN 67471133 Columbia Street, Suite 106San Diego, CA 92101(619) 501-6220

Respondent In Pro PerCounsel for Respondent

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

No. 08-80074

POST -HEARING BRIEF

Respondent, Kevin J. Mirch, in pro per and through his attorney, Marie Mirch, hereby

submits this supplemental brief in support of his position that the order of disbarment issued by the

State of Nevada violated his due process rights, and should not subject him to disbarment or

suspension from the Ninth Circuit Court of Appeals. This memorandum is submitted pursuant to

the Order of this Court dated October 14, 2008, requesting further briefing on a number of specific

issues.

ISSUE # 1. Legal authority that State Bar has a duty to investigate

The Nevada Supreme Court Rules (SCR) dictate the State Bars duty to investigate agrievance:

Rule 104. State bar counsel.

1. State bar counsel shall: (a) Investigate all matters involving possible attorney misconduct or incapacity

In re:

KEVIN JOHN MIRCH, Esq., Admitted to

the bar of the Ninth Circuit: February 16,

1988,

Respondent.

Case: 08-80074 11/20/2008 ID: 6714572 DktEntry: 20-1 Page: 1 of 13


2/69

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 The Nevada State Bar should have its files regarding any investigation that was done on1

this grievance, information which Respondent is not privy to.

2

called to bar counsels attention, whether by grievance or otherwise. (b) Subject to Rule 105(1), dispose of all matters involving alleged misconduct bydismissal of the allegation(s) or by the filing of a written complaint. (c) Prosecute all proceedings under these rules before all forums in the name of theState Bar of Nevada. (d) File with the supreme court petitions with certified copies of proof of convictiondemonstrating that attorneys have been convicted of serious crimes, as defined inRule 111. (e) Maintain permanent records of all matters investigated under these rules .1

SCR 104 2004 version. Supp Appendices at 2.

Under SCR 104(2), Bar counsel may meet with an attorney against whom a grievance has been

received to informally resolve a matter that does not involve the commission of a serious crime, as

defined in these rules. In Mr. Mirchs case, Bar Counsel Rob Bare did meet with Mr. Mirch and

his attorney, David Hamilton and stated that the grievance would be dropped because Mr. Bare did

not believe there was an ethical violation. This is the only investigation that Respondent is aware.

Nevertheless, the screening panel ultimately sent the matter to formal proceedings with the filing

of a complaint against Mr. Mirch. In the Complaint, State Bar simply adopted Judge Hardestys

Order without conducting an independent investigation of the facts or law which supported Mr.

Mirchs complaint against McDonald Carano.

Nevada Supreme Court Rule 105 also has an investigation requirement:

Rule 105. Procedure on receipt of complaint.

1. Investigation.

(a) Investigation and screening panel review. Investigations shall be initiatedand conducted by bar counsel or bar counsels staff or other investigativepersonnel at bar counsels direction prior or pursuant to the opening of agrievance file. At the conclusion of an investigation of a grievance file, barcounsel shall recommend in writing dismissal with or without prejudice,referral to diversion or mentoring pursuant to Rule 105.5, a letter of caution, aprivate reprimand, or the filing of a written complaint for formal hearing. Therecommendation shall be promptly reviewed by a screening panel. A screening panelshall consist of three members of the disciplinary board, appointed by the chair inaccordance with Rule 103(6). Two of the three reviewers must be members of thebar. By majority vote they shall approve, reject, or modify the recommendation, or

continue the matter for review by another screening panel.SCR 105, 2004 version Supp Appendices 3.



3/69

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

The Nevada Supreme Court acknowledged this duty in In Re Drakulich, 111 Nev. 1556; 908

P.2d 709; (1995):

"In discharging its inherent authority to discipline the bar, this court has theobligation to conduct an independent and de novo review of any record compiled ina disciplinary proceeding in order to determine whether discipline in any particularinstance is warranted," see State Bar of Nevada v. Claiborne, 104 Nev. 115, 126,756 P.2d 464, 471 (1988), or whether any charge meriting discipline has beenproven, seeIn re Miller, 87 Nev. 65, 68-69, 482 P.2d 326, 328 (1971). n4 Thus, thiscourt has held that "the ultimate responsibility for arriving at the truth in disciplinarymatters lies with this court." Claiborne, 104 Nev. at 126, 756 P.2d at 471.

In Re Drakulich, supra at 1566.

ISSUE # 2. Legal authority that Mr. Mirch had a right to a hearing at Nevada SupremeCourt

The legal authority supporting Mr. Mirchs contention that he had a right to a hearing before

the Nevada Supreme Court, or at least notification that the matter would be submitted on the briefs,

is supported by the Nevada Rules of Appellate Procedure and the Nevada Supreme Court Rules

pertaining to attorney discipline. First NRAP 31(c) addresses the consequences of failure to file a

brief, one of which is that the party will not be heard at oral argument. NRAP Rule 34 also

specifically relates to oral argument:

Rule 34. Oral Argument.

(a)Notice of argument; postponement. The clerkshalladvise all parties of

the time and place at which oral argument will be heard, and whether argument willbe before the full court or a panel...

(f) The court may order a case submitted for decision on the briefs, withoutoral argument.

NRAP 34Supp Appendices at 8

While NRAP 34(f) permits the Supreme Court to order a case submitted on the briefs, when

that occurs, the Nevada Supreme Court issues an order to the parties. This did not happen, there

was no hearing, and there was no order that the case was submitted on the briefs. Rather, the Order

of Disbarment was issued on April 11, 2008, and Respondent learned on it through the local media. With respect to attorney discipline, SCR 105 states that the matter will submitted on the

record without briefing or oral argument if the attorney does not file an opening brief. In this case

Respondent did file an opening brief and should have been afforded oral argument.



4/69

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

ISSUE # 3. What occurred when Kevin Mirch had a stroke and State Bar would not allowa continuance.

On April 1, 2006, Mr. Mirch suffered a stroke and was impaired. By that time, the Bar had

already violated SCR 105(c) regarding the time to conduct the disciplinary hearing, which requires

that the hearing be within 45 days of assignment and may be continued, but the additional time could

not exceed 90 days. SCR 105(c). Mr. Mirch did not agree to continue the hearing. The record

reflects that at one point Robert Hager, then counsel for Mr. Mirch, waived this time requirement

on behalf of Mr. Mirch. However, Mr. Mirch was never consulted, did not agree to the same, but

was subject to the ineffective assistance of counsel which prolonged this matter well beyond the

requisite period.

As to the issue of the State Bars indifference to Mr. Mirchs health, a formal hearing was

set for July, 2006, and Mr. Mirch was suffering cognitive and physical impairment attributable to

the stroke. Mr. Mirch did not have the option of petitioning the Bar for a continuance of the July

hearing. Under SCR 117(3), if the attorney subject to disciplinary proceedings seeks a continuance

for health reasons, the State Bar will put that attorney on disability status:

3. Transfer to inactive status prior to determination of competency. If, during thecourse of a disciplinary proceeding, the respondent contends that he is suffering froma disability de to mental or physical infirmity or illness, or because of addiction todrugs or intoxicants, which makes it impossible for the respondent to adequately

defend himself, the court shall enter an order transferring the respondent to disabilityinactive status until a determination is made of the respondents capacity to continueto practice law in a proceeding instituted in accordance with the provisions ofsubsection 2 above.

In light of of SCR 117(3), Mr. Mirch did not have the option to seek time to recover from his

stroke unless he agreed to be put on disability status and then subject to the Bars discretion for

reinstatement. Mr. Mirch did not seek a continuance of the July hearing, but ceased all of his

rehabilitation exercises to prepare for the hearing. However, the State Bar felt compelled to file

an emergency motion to put Mr. Mirch on disability status anyway, which was instantly rejected bythe Nevada Supreme Court. Supp Appendices 10. Order. The Nevada Supreme Court did grant

Mr. Mirch a 90 day stay to permit him time to recover. Even after the 90 day stay, Mr. Mirch was

not fully recovered, but was forced into the formal hearing in March, 2007, where he fell ill, was



5/69

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

excused, and the disciplinary hearing continued in his absence. Transcript of Bar Hearing Volume

II Hearing at 351:14.

ISSUE #4. Legal authority that swearing in after testimony violates due process.

Under the rules of evidence, specifically Rule 603, the oath must be given to a witness

before testimony is given:

Rule 603. Oath or Affirmation. Before testifying every witness shall be required todeclare that the witness will testify truthfully, by oath or affirmation administered in a formcalculated to awaken the witness conscience and impress the witness mind with the dutyto do so (Amended Mar. 2, 1987, eff. Oct. 1, 1987.) [Emphasis Added]

This rule was not satisfied. Bruce Laxalt testified before the State Bar Panel without being properly

sworn in as required under Rule 603. Under Rule 603, before testifying every witness is required

to declare that he/she shall testify truthfully, by oath or affirmation administered in a special form

designed to awaken the importance of the oath. In this case, Mr. Laxalt was not sworn in until after

the testimony was given. Consequently, he could not have been aware of the importance of his

testimony before it was given. Since Section 603 was violated, Mr. Mirch was denied due process

essential to assure truthfulness of the testimony given. It is important to note, the Respondent moved

to strike Mr. Laxalts testimony which was denied. The Disciplinary Panels action was contrary

to the express wording of the rules of evidence, and there is no provision in the rules for a

retroactive oath taking.

Issue #5. Legal authority that Bar Panel cannot discredit the credibility of witnesses orhas to believe one witness.

This issue goes to the sufficiency of evidence prong of this Courts review under In Re

Kramer. The sufficiency of evidence was discussed by the Nevada Supreme Court in its opinion

which rejected the Nevada State Bars recommendation that attorney Victor Drakulich be suspended

from the practice of law inIn Re Drakulich, 111 Nev 1556; 908 P.2d 709 :

In bar disciplinary matters, a higher degree of proof is required than in ordinary civilproceedings. Clear and convincing evidence must support any findings ofmisconduct. SeeIn re Stuhff, 108 Nev. 629, 634-35,837 P.2d 853, 856 (1992) seealso SCR 105(e). This court has held that clear and convincing evidence must besatisfactory proof that is: so strong and cogent as to satisfy the mind and conscienceof a common man, and so to convince him that he would venture to act upon thatconviction in matters of the highest concern and importance to his own interest. Itneed not possess such a degree of force as to be irresistible, but there must be



6/69

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

evidence of tangible facts from which a legitimate inference . . . may be drawn.Gruber v. Baker, 20 Nev. 453, 477, 23 P. 858, 865 (1890), cited in Stuhff,108 Nev.at 635, 837 P.2d at 856. Clear and convincing evidence has been defined by othercourts as "evidence establishing every factual element to be highly probable," seeButler v. Poulin, 500 A.2d 257, 260 n.5 (Me. 1985), or as "evidence [which] must beso clear as to leave no substantial doubt," seeIn Re David C., 152 Cal. App. 3d 1189,200 Cal. Rptr. 115, 127 (Ct. App. 1984).

Drakulich, supra at 1566-1567.

As inDrakulich, an independent and de novo review of the record of the disciplinary action

against Mr. Mirch simply does not reveal satisfactory, strong, or cogent proof of tangible facts

establishing a legitimate inference or a high probability that Mr. Mirch committed the violation of

the disciplinary rule found by the panel.

For example, the State Bars expert witness testified that he assumed all of the facts of Mr.

Mirchs Amended Complaint to be true. Vol II Transcript of Bar Hearing at 257:11-14. Mr.

Laxalt, another witness for the Bar testified that he had no knowledge of the underlying facts or

investigation done by Mr. Mirch prior to filing suit. The only witness who gave any testimony

whatsoever as to the facts of whether the threat was made to Mr. Mirch by Attorney Leigh Goddard,

was Leigh Goddard herself, who simply stated that she did not make the threat, and went through

each allegation of the Amended Complaint and denied it . Vol II Transcript of Bar Hearing at 320-

343 . However, Ms. Goddard also testified that she had never been sued by anyone else, which was

an outright lie because she was the defendant at least two other civil lawsuits.

The evidence in favor of Mr. Mirch factually, was Mr. Mirchs testimony of the events; Mr.

Wisemans testimony that he overheard Mr. Goddard tell her client to destroy the fee agreement;

evidence that Marilyn Bulloch (an acquaintance of Dr. Frank who had lived in Alabama) was told

by Dr. Frank himself that his attorney told him to destroy the fee agreement; testimony by David

Hamilton as to his percipient knowledge of Denise Reed informing Mr. Mirch that a female attorney

from McDonald Carano had called and instructed Ms Reed not to pay her bill to Mr. Mirch. The

State Bar presented no affirmative evidence refuting this testimony. In order to find as it did, the Bar

Panel had to completely discount and reject the testimony offered by Mr. Mirch, Mr. Wiseman, Mr.

and Hamilton, which it did. This was improper Re Drakulich, supra at 1569. Also in light of the

circumstances that Ms. Goddard had her own personal interest in failing to testify truthfully to her



7/69

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

own violation of professional ethics, her testimony should not have been accorded the same high

degree of reliance that the Panel gave that testimony. Id.

Finally, inIn Re Drakulich,the Nevada Supreme Court held:

In the case of In re Clarke, 46 Nev. 304, 307-08, 212 P. 1037, 1038 (1923), this courtheld that [HN4] due to the highly penal nature of an order of disbarment and itsadverse affect on the future of the accused, this court would "not disbar on doubtfulevidence, or where there is substantial conflict in it." Additionally, in the case of Inre Winters, 40 Nev. 335, 163 P. 244 (1917), this court weighed the "circumstantialevidence of the prosecution" against the "positive testimony" of the accused attorney.This court also alluded to the former good reputation of the attorney in emphasizingthe attorney's positive testimony. Id. at 337, 163 P. at 245.

[*1570] Although the panel has recommended a 90-day suspension in the instantcase, and not disbarment, we nonetheless conclude that, under all the circumstances,the evidence in this case that appellant paid Hall a referral fee is doubtful and doesnot warrant such a drastic sanction. At the very least, the evidence relating to thatcharge is in substantial conflict.

For example, we can perceive no clear and convincing evidence supporting thepanel's finding that appellant violated SCR 196(3), the rule which prohibits a lawyerfrom giving anything of value to a person for recommending the lawyer's services.As noted, the only direct evidence in this record supporting that finding ofmisconduct is Stellmack's testimony that appellant paid Hall referral fees. As notedabove, however, Stellmack's testimony was contradicted by the testimony of Hall, bythe testimony of appellant, and by corroborating testimony of Rusk. Moreover, thestate bar does not dispute appellant's assertion that his record establishes that he isan excellent, competent, and dedicated attorney who has never before beendisciplined. Thus, we are inclined to accord appellant's testimony far more weightthan did the panel. See Winters, 40 Nev. at 337, 163 P. at 245.

Additionally, in light of appellant's and Hall's positive testimony regarding the nature

and purpose of the payments that were made to Hall, we harbor substantial doubtsrespecting the panel's finding that appellant violated SCR 197, the rule that prohibitsa lawyer's solicitation of clients when a significant motive for the solicitation is the"lawyer's pecuniary gain." The record before us suggests that, to the contrary,appellant's motives were far more consistent with a desire to assist Hall, a longtimefriend of appellant's family who became "a different sort of person" after he sufferedneurological damage as a young man in an accident and who was experiencingfinancial difficulties.

In Re Drakulich at 1569-1570.

In the present case, the State Bar could not recommend disbarment on doubtful evidence, and

should have been held to the higher evidentiary standard in favor of Mr. Mirch. They failed. Ratherthan considering all of the evidence, the Panel and the Nevada Supreme Court knew the desired end-

result and discounted the testimony of all of Respondents witnesses in order to get there (with the

exception of Mr. Geoff Giles, the Bankruptcy Attorney who testified as an expert witness whom the



8/69

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

Bar offered absolutely no evidence to refute).

ISSUE # 6. Judge Kosach issue

In the disciplinary matter, the State Bar presented and the Panel considered the fact Judge

Kosach has a standing order that he will not sit on any case in which Kevin Mirch is involved.

Supp Appendices 12, Order. This was offered as evidence that Mr. Mirchs practice of law was so

egregious that a district court judge refused to have him in his court. The fact is that Judge Kosach

recused himself after Mr. Mirch challenged the propriety of the Judges conduct and filed a motion

for recusal against Judge Kosach. Specifically, in a civil case entitledBrignand v. Snyder,case no

CV97-07884 Second Judicial District Court of the State of Nevada County of Washoe. Judge

Kosach offered a favorable ruling in favor of the plaintiff, John Brignand in exchange for collectors

baseball cards. Supp Appendices 14,Affidavit of John Brignand. Judge Kosach was assigned to

another case in which Mr. Mirch represented the plaintiff, Diamond Motors v. Wells Fargo, case

number CV00-03939, Second Judicial District Court of the State of Nevada County of Washoe. Mr.

Mirch filed a motion for recusal of Judge Kosach, who then made derogatory statements against Mr.

Mirch from the bench ( a transcript which Judge Kosach has prevented Mr. Mirch from obtaining).

Mr. Mirch filed an affidavit in support of his motion for recusal addressing the baseball card issue

inBrignand. Supp Appendices 16. Judge Kosach responded with is order of a standing recusal

regarding Mr. Mirch. The misconduct was not Mr. Mirchs as the bar panel assumed, but rather a

member of the bench in Washoe County.

ISSUE # 7. Rob Bare could not call as witness.

Prior to the disciplinary hearing, Mr. Mirch subpoenaed Rob Bare and Justice Hardesty to

appear as witnesses. The State Bar moved to quash the subpoenas, which the panel granted. Mr.

Bare had been bar counsel at the time the Hardesty order was referred, and was responsible for

investigation of the allegations. At the time of the hearing, Rob Bare was no longer bar counsel, but

a Municipal Judge. The Panel quashed the subpoenas. Vol II Transcript of Bar Hearing at

291:299.



9/69

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

ISSUE # 8. Support for the proposition that KM had a duty to report the fact that therewere assets that came in to the BK Court.

Mr. Geoff Giles, Esq. is a bankruptcy attorney who testified as to Mr. Mirchs duty to report

the assets to the bankruptcy court, especially in light of Judge Riblets Order in the Frank

Bankruptcy. Transcript of Bar Hearing, Vol III at 501-538.

ISSUE #9. Evidence that David Hamilton was a Bar board member or that he bar had usedhim as an expert ever.

The Bar Panel totally discredited Mr. Hamilton as an expert witness on the subject of legal

ethics, despite the fact that Mr. Hamilton had served for many years on the State Bar Disciplinary

Panel himself. This Court asked for evidence to support this fact. Mr. Hamilton has prepared and

submits a Declaration which establishes his credentials as an expert witness in this area of law,

which is include in the supplemental excerpt filed with this brief. See Supp Appendices at 53, Decl

of David Hamilton.

ISSUE # 10. Submit the appellate decision on the appeal of Hardestys order, petition forrehearing , and denial of petition.

This Court has also requested the Nevada Supreme Courts decision in the Mirch v.

McDonald case. The opinion is submitted in the supplemental appendices at page 19. Further,

Respondent filed a Petition for Rehearing included at Supp Appendices at 31, and the Supreme

Courts denial of the Petition. Supp Appendices at 44.

ISSUE #11. Brief that their notice of witnesses was insufficient.

SCR 105 imposes the duty on bar counsel to disclose the witnesses and evidence to be used

against the attorney in a formal disciplinary hearing:

105(c) Time to conduct hearing; notice of hearing; discovery of evidenceagainst attorney. The hearing panel shall conduct a hearing within 45 days ofassignment and give the attorney at least 30 days written notice of its time and place.The notice shall be served in the same manner as the complaint, and shall inform theattorney that he or she is entitled to be represented by counsel, to cross examinewitnesses, and to present evidence. This notice shall be accompanied by a summary

prepared by bar counsel of the evidence against the attorney, and the names ofwetness bar counsel intends to call for other than impeachment, together with a briefstatement of the facts to which each shall testify, all of which may be inspected upto 3 days before the hearing. Witnesses of evidence, other than for impeachment,which become known to bar counsel thereafter, and which bar counsel intends to useat the hearing, shall be promptly disclosed to the attorney. For good cause shown,the chair may allow additional time, not to exceed 90 days, to conduct the hearing.



10/69

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

Supp Appendices at 2, copy of Nevada SCR 105.

In Mr. Mirchs case, the State Bar Complaint was filed on June 15, 2004. The hearing,

including any continuance for good cause had to occur no later than 90 days later, or no later than

September 13, 2004. The Notice of Formal Hearing was served on August 25, 2005, 436days later.

In fact, the hearing was held over two and a half years later, in February, 2007. This not only

violated SCR 105, it greatly prejudiced Mr. Mirch because by the time of the formal hearing, Mr.

Mirch was impaired because of a stroke, and one witness, Marilyn Bulloch who was going to come

to Reno to testify, had died. Mr. Mirch expressed his position that the hearing was unfair in

response to a question from a panel member during the hearing.

The Notice of Formal Hearing identified four witnesses:

1. Dennis Kennedy, Esq. the expert witness whom was disclosed to corroborate the

findings of fact and conclusions of law made by Judge James Hardesty in the Order filed October

9, 2003 which is the underlying basis of the State Bars Complaint in this matter and which is

incorporated by reference in the State Bars Complaint. Supp Appendices 47. Mr. Kennedys in

his opinion stated that he who accepted all facts of the Amended Complaint as true, and in fact gave

no testimony as to the factual allegations of the Amended Complaint.

2. Bruce, Laxalt, Esq. legal counsel for the McDonald defendants whose testimony is

identified as to testify concerning legal action taken as counsel for defendants and the procedural

history of the underlying matter and the related federal litigation known as Kevin Mirch v. Judy

Frank, ..... He will also testify regarding the effect Respondents action had on his clients, the law

firm of McDonald, Carano & Wilson and Leigh Goddard, Esq. Supp Appendices 47. Again Mr.

Laxalt was not expected to, and offered no testimony regarding the factual allegations contained in

the First Amended Complaint. In fact, Mr. Laxalt testified that he knew nothing of the underlying

facts or Mr. Mirchs investigation prior to filing the complaint. _____

3. Leigh Goddard, Esq. was disclosed to testify regarding the effect Respondents

conduct had upon her professionally and upon the underlying matter as well as related federal

litigation in the matter known asKevin Mirch v. Judy Frank, ..... Supp Appendices 48. Notably

absent from this disclosure is anything pertaining to the factual allegations of the First Amended



11/69

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

Complaint, all of which were included in her testimony at the disciplinary hearing.

4. Custodian of records of the bar.

All of the notice of witnesses and evidence supported that the Bar was not going to contest

the underlying facts of the Amended Complaint, but rather the law. Mr. Mirch proceeded on this

basis and introduced statutory and case law supporting his position. However, the Findings of Fact

and Conclusions of Law recommending disbarment find each factual allegation of the Amended

Complaint to be false. This is absent any notice to Respondent that the facts were at issue and in the

absence of any evidence to refute the evidence presented by Mr. Mirch in the testimony of Mr.

Mirch, Mr. Wiseman and Mr. Hamilton, as well as evidentiary support for the same. There is

nothing in the witness disclosure or even the Complaint itself that gave Mr. Mirch notice that the Bar

was disputing the underlying facts of the Mirch v. McDonald suit.

The Nevada Supreme Court has recognized the due process requirements of bar disciplinary

matters. For instance, inIn Re Discipline of Laub, 119 Nev. ___, ___ P.3d ___ (Jan. 9, 2002) The

Nevada Supreme Court disregarded violations that the disciplinary panel had found, but were not

clearly identified in the complaint, stating that the complaint itself must be specific as to notify the

attorney of the charges against him:

Laub argues that he has been denied due process because the complaint did notassert any charges based on a possible products liability claim, and so he was not

notified of any such charges, The state bar weakly argues that since it attached thecost and disbursement statement to the complaint, and the statement mentioned apossible products liability claim because of the funds being held back for costs, Laubwas on notice that his conduct concerning the products liability claim was subject toreview. The state bar also argues that Nevada is a notice-pleading jurisdiction, andthat its complaint was sufficient under this standard. In reply, Laub argues that therules of civil procedure do not apply to bar complaints; rather, SCR 105(2) governs. This court recently reiterated inIn re Discipline of Schaefer 117 Nev. , 25 P.3d191, as modified by 31 P.3d 365 (2001) that due process requirements must be metin bar proceedings, and that an attorney charged with misconduct must be notifiedof the charges against him. Also, SCR 106(2) provides that "the complaint shall besufficiently clear and specific to inform the respondent of the charges against him orher," Here, the complaint makes no mention whatsoever of the products liability

claim, and the record reflects that the state bar never sought to amend the complaintto include violations based on this claim. We conclude that Laub was not adequatelynotified of any charge against him based upon the Sartains' possible productsliability claim, and that these violations must be disregarded.

In Re Discipline of Laub, supra.

Similarly, due process and SCR 105(c) require full and fair disclosure of all the facts



12/69


13/69

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13

Respectfully submitted this 20 day of November, 2008.th

MIRCH LAW OFFICES1133 Columbia Street, Suite 106San Diego, CA 92101

BY__/s/ Marie Mirch_______Marie MirchCounsel for Respondent



14/69

Mirch Law Offices

Kevin J. Mirch

CA SBN 106973

Marie C. Mirch

CA SBN 20083, NV SBN 67471133 Columbia Street, Suite 106

San Diego, CA 92101

(619) 501-6220

(619) 501-6980 Fax

Attorneys for Respondent

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE: ) No. 08-80074

)

Kevin John Mirch, Esq. ) SUPPLEMENTAL APPENDICES

Admitted to the Bar )of the Ninth Circuit )

)

Respondent ) ____________________ )



15/69



16/69



17/69



18/69



19/69



20/69



21/69



22/69



23/69



24/69



25/69



26/69



27/69



28/69



29/69



30/69



31/69



32/69



33/69



34/69



35/69



36/69



37/69



38/69



39/69



40/69



41/69



42/69



43/69



44/69



45/69



46/69



47/69



48/69



49/69



50/69



51/69



52/69



53/69



54/69



55/69



56/69



57/69



58/69



59/69



60/69



61/69



62/69



63/69



64/69



65/69



66/69



67/69



68/69



69/69


Documents

11 20 08 Doc 20 With Exhibits Mirch Post Hearing Brief 08-80074 69 Pages Total