State bar complaint against AG Masto dismissed

The State Bar of Nevada dismissed a complaint instigated by a Las Vegas lawyer that alleged Nevada Attorney General Catherine Cortez Masto violated professional rules of conduct by disclosing details about legal advice she had given Gov. Jim Gibbons.

In a letter dated Monday to attorney Jacob Hafter, bar counsel Phil Pattee stated: "After reviewing the correspondence from you and Ms. Masto, it has been determined that any profesional misconduct in this matter could not be proved by 'clear and convincing evidence,' which is the standard of proof required in disciplinary cases."

Hafter, who at the time was running in the Republican primary for attorney general became embroiled in a dispute with Masto after objecting to her handling of a request by Gibbons that Masto, as attorney general, file suit on behalf of the state against the federal government in an effort to block the Patient Protection and Affordable Care Act, the health reform law signed into law by President Barack Obama earier this year.

Hafter alleged Masto violated rules related to attorney-client privilege by sending her reasons for declining Gibbons' request to media outlets as well as Gibbons. Hafter said since Gibbons was Masto's client, releasing the letter to the public via the media was akin to disclosing legal advice.

On March 30, Masto circulated a letter to Gibbons stating her belief that a lawsuit to block the health care law would be unlikely to succeed and that litigation would be a waste of taxpayer money. It was one of several items of publicly distributed communication between Gibbons and Masto.

Masto has stated she was engaged in a public discussion with Gibbons, who by sending his own press releases on the matter implicitly waived any attorney client privilege.

"(A)ny privilege which may have been attached to the subject matter of the letter was waived by the Governor through his highly publicized dissemination of his press releases and letters, wherein he demanded a decision by the Attorney General as to whether I would join on behalf of Nevada the litigation filed by other states challenging the Act," Masto wrote in a letter to the bar responding to the complaint against her.

Previous correspondence, however, contradicts Masto's assertion. An e-mail dated March 24 from Adriana Fralick, legal counsel to the governor's office, to Jim Spencer, chief of staff to Masto, discussing a letter on the matter stated: "Release of this letter to the public should not be construed as an express waiver of attny (sic) client privilege in this matter."

Masto, through a spokesperson, declined to discuss the subject. Robin Reedy, Gibbons chief of staff, said the governor would have no comment on the bar's decision to dismiss the complaint against Masto.

Reedy did, however, note that she wrote to Masto on May 14 to ask the attorney general to clarify portions of the letter to the bar relating to attorney-client privilege.

Reedy was concerned because Masto had written one of the reasons she didn't violate attorney-client privilege was that the privilege didn't exist because the governor wasn't a litigant in a lawsuit.

Reedy wrote that such an interpretation could subject many discussions between the attorney general and the governor or other state agencies previously considered private to public disclosure.

"(U)nder a public records request, except for matters wherein the public body/officer is a named party in litigation, anyone would be privy to any information shared by the public body/officer with your office," Reedy wrote. "As I see it, your position as to what constitutes legal respresentation of this Office has broad ramifications."

Reedy said Masto hasn't responded to her concerns

Despite declining to pursue the complaint against Masto, the bar is investigating whether Hafter violated rules that prohibit attorneys from knowingly making false statements or engaging in fraud, deceit or misrepresentation.

The bar hasn't disclosed details of the investigation except to say it relates to press releases Hafter sent that criticized Masto.

On Monday Hafter expressed frustration and exasperation with a process he said was wrongly turned on its head when the bar sought to investigate him after he criticized a public official, an act he says falls well within the bounds of his first amendment rights to free speech.

"It is a joke, it is an absolute joke," said Hafter, who lost his primary campaign to Travis Barrick, who will now challenge Masto in the general election. "I have no faith in the system."