Matter of Francovich

575 P.2d 931, 94 Nev. 104, 1978 Nev. LEXIS 492

• Court: Nevada Supreme Court
• Decided: March 2, 1978
• Docket: 8862
• Status: Published

Opinions

OPINION

By the Court,

THOMPSON, J.:

This matter is before us on petition to review recommendations of the Board of Governors of the State Bar of Nevada that Samuel B. Francovich be suspended from the practice of law subject to reinstatement upon meeting certain conditions.¹

Francovich accepted a $1,000 retaining fee from Frederick Maclaine, brother of Dennis Maclaine, to represent Dennis on appeal from his conviction for the possession and sale of marijuana. Dennis then was confined in the Nevada State Prison. After timely filing a notice of appeal and designation of record, Francovich wrote Dennis notifying him that he had been retained by brother Frederick, enclosed a copy of the notice of appeal and designation of record, and advised him of the need for a transcript of testimony and its estimated cost. Brother Frederick also was told that there would be a transcription cost. Frederick indicated that further funds were not available. Francovich, therefore, filed a motion for a free transcript. That motion was denied. Neither Dennis nor Frederick were advised of the denial. Indeed, Francovich did not thereafter communicate with his client, nor repond to requests for a status report. The appeal was abandoned for lack of transcript. Francovich did not return the retaining fee until after the Local Administrative Committee had recommended discipline.

Francovich does not ask this court to excuse his neglect. He admits his errors in failing to communicate with his client, to respond to requests for a status report, to return all or part of the retaining fee when it became apparent that the appeal could not be perfected without a transcript. He- does suggest, however, that the penalty of suspension is much too severe.

The failure to perform promised legal services, if a pervasive course of conduct by the attorney, may warrant the severe discipline of suspension or disbarment. Lester v. State Bar, 551 P.2d 841 (Cal. 1976); Selznick v. State Bar, 547 P.2d 1388 (Cal. 1976); Doyle v. State Bar, 544 P.2d 937 (Cal. 1976); In re Pearce, 540 P.2d 515 (Utah 1975); Montalto v. State Bar, 520 P.2d 721 (Cal. 1974); Alkow v. State Bar of California, 479 P.2d 638 (Cal. 1971); Grove v. State Bar of California, 427 P.2d 164 (Cal. 1967).

In the matter at hand we have a single instance of client neglect, wholly unlike the circumstances before the court in the cited cases where severe discipline was imposed. We are not willing to infer a pattern of misconduct when the record does not show it. Although the recommendation of the Board of Governors is persuasive, this court must exercise its independent judgment. State Bar v. Raffetto, 64 Nev. 390, 183 P.2d 621 (1947); In re Kellar, 88 Nev. 63, 493 P.2d 1039 (1972). We heretofore have modified recommended discipline when believed to be too severe. In re Cochrane, 92 Nev. 253, 549 P.2d 328 (1976); In re Kellar, supra. A majority of this court believes that the penalty recommended by the Board is not warranted, although discipline is in order. We publicly reprimand' Samuel B. Francovich for his conduct in the Maclaine matter and direct him to pay the State Bar of Nevada all costs of this proceeding including court reporters’ fees, costs of investigation and of the special examiner.

BATJER, C. J., and MOWBRAY, J., concur.

1 The Board recommended:

“(1) That Samuel B. Francovich be suspended from the practice of law for six months subject to being reinstated after three months if, within thirty days from the date of suspension, Mr. Francovich has:

(a) repaid the $1,000 retainer to Mr. Frederick Maclaine; and

(b) files a petition for reinstatement with the Board of Governors pursuant to Supreme Court Rule 162;

“(2) That Samuel B. Francovich notify his clients as to his suspension pursuant to Supreme Court Rule 112A(l)(a); and

“(3) That Samuel B. Francovich be assessed all costs regarding the proceedings including court reporters’ fees, costs of investigation and costs of the special examiner.”