High court rules against bar’s public reprimand

CARSON CITY -- The State Bar of Nevada cannot issue a public reprimand against former Republican attorney general candidate Jacob Hafter regarding comments he made during the 2010 campaign, the state Supreme Court has ruled.

Justices instead decided the State Bar can issue a private reprimand against the Las Vegas lawyer over an untruthful comment he made about Attorney General Catherine Cortez Masto. Because the order was issued in a public decision, however, Hafter hardly can keep the reprimand private.

Justices ruled Hafter made "a false statement of fact" to the news media about whether a complaint had been filed with the State Bar against Masto, but those statements were not made to disciplinary authorities and, therefore, did not violate ethic rules governing lawyers. They also noted Hafter, then a member of the State Bar's disciplinary board, never before had been disciplined.

Hafter, reached in Las Vegas on Thursday, said he will request a rehearing in part because the decision requires him to pay $20,000 to the State Bar for its investigation costs and because the reprimand already is public. He added he has spoken to other lawyers and found no other cases where lawyers were subject to paying such a high amount over a reprimand.

"Nobody pays these costs or fees, so why do I have to pay them?" he asked.

He added the court, if it wanted to discipline him privately, could have issued a simple order reversing the State Bar and sealing the actual decision. By its actions, it has ended any possibility of him ever seeking elective office, Hafter said.

Hafter in 2010 accused Masto of violating the attorney-client privilege rule by releasing information about why she would not represent Gov. Jim Gibbons in his challenge to the federal Patient Protection Affordable Care Act, the health care overhaul bill championed by President Barack Obama. The attorney general represents the governor in legal matters.

In a news release Hafter said he had been told by State Bar sources that a complaint had been filed against Masto, but in reality, the court said, no one had filed a complaint against her and he knew that. The court added Hafter himself had tried to file an anonymous complaint against Masto and was told that was not allowed.

"Hafter's statements to the press were certainly false statements, but we reject the State Bar's assertion that because of the subject matter the statements concerned a disciplinary matter," the court said.

Justices also rejected Hafter's argument that his misrepresentation did not violate any ethical rules because it was protected speech.

They said freedom of speech arguments will not protect a lawyer "if he is guilty of (a) known falsehood intentionally used and published for the purpose of misleading the voters and gaining personal advantage for himself or his candidate."

Justices also said Hafter "cloaked himself in the authority of the Southern Nevada Disciplinary Board" by gaining inside information because of his membership on that board.

Contact Capital Bureau Chief Ed Vogel at evogel@reviewjournal.com or 775-687-3901.