Judge denies candidate’s bid to stop probe of alleged comments to reporter

State Attorney General candidate Jacob Hafter's bid to stop the Nevada State Bar from investigating comments he is alleged to have made to a reporter failed Friday when his request for a temporary restraining order was denied.

"The 11th Amendment to the Constitution is not a technicality," said U.S. District Judge Phillip Pro after Hafter and assistant bar counsel David Clark addressed the judge.

At issue are comments an online reporter attributed to Hafter regarding Attorney General Catherine Cortez Masto during a press conference April 7. The topic regarded Gov. Jim Gibbons' plans to join other states suing the federal government over passage of the health care reform act.

Masto declined to join 13 other state attorneys general, which prompted Gibbons to go it alone.

Hafter is reported to have told Elizabeth Crum, editor of the Nevada News Bureau, that a "reliable source" inside the state bar told him a formal complaint had been filed against Masto for violating attorney-client privilege when she publicly explained her reasons for rejecting Gibbons' request to join in the lawsuit.

Gibbons and Hafter are Republicans; Masto is a Democrat.

Hafter also told Crum that Masto was derelict in her duties and could face misdemeanor charges, according to the allegations.

Clark told Pro that Hafter misled the reporter, saying it was Hafter who filed an anonymous grievance with the bar but indicated a third party had filed a formal complaint. There is a distinction between the two.

Hafter said the bar was "playing political games" and argued that his comments, if he did make them, were political speech and protected by the First Amendment. He said if the bar were allowed to discipline him, attorneys could be in trouble "every time they talk to a reporter."

Clark said the issue wasn't about free speech or political speech, but rather violating legal ethics by insinuating an attorney is under investigation by the state bar. Whether true or not, such investigations are private until findings of wrongdoing are made.

Crum stood by her story after Monday's hearing.

"There were three other attorneys and other journalists on that conference call and they heard what Jacob Hafter said," she said. "Because he's an attorney and a candidate for state office, I believed him."

Crum also agreed with Clark's assertion that Hafter led the panel to believe he wasn't the one who filed the complaint and that it was a formal complaint against Masto rather than the much less serious grievance process.

"He did insinuate it was a third party," she said. "And he did say he has a source inside the state bar."

In denying Hafter's request, Pro agreed the issue at hand isn't about free speech, but "whether the court should issue a restraining order to restrict the Nevada State Bar from investigating you. The 11th Amendment to the Constitution is not a technicality." The 11th Amendment deals with sovereign immunity.

Pro in the coming weeks will entertain a motion to dismiss filed by the state bar, which argues the federal court does not have jurisdiction over the matter, but that it falls under the purview of the Nevada Supreme Court.

The bar acts as an arm of the state's highest court insofar as investigating attorneys for possible wrongdoing is concerned.

Contact reporter Doug McMurdo at dmcmurdo@reviewjournal.com or 702-380-8135.