Complaint Filed Against Attorney Bret Whipple Who Failed To Show Up To Court TWICE .
BRET WHIPPLE IS CURRENTLY ON PROBATION Click Here For The Suspension Conditions
Nevada State Bar
3100 W. Charleston Blvd., Suite 100
Las Vegas, NV 85016
RE: Formal Ethics Complaint Against:
Bret Whipple – Bar No. NV6168
Justice Law Center
1100 S. 10th Street
Las Vegas, NV 89104
November 8, 2017
Nevada State Bar,
The factual basis for this complaint arises from Bret Whipple (hereafter, “Whipple”) and his law firm Justice Law’s (hereafter, “Firm”) misconduct in Case No.: A-15-724483-C, Department No. XV, Andre Wilson vs. Perfect Privacy, LLC, et al, Eighth Judicial District Court (hereafter, “case”) before Judge Hardy. The unethical conduct involved the case of previous client Charles Rodrick (hereafter, “Rodrick”) that extended throughout the period beginning in November, 2015 through the court approved withdrawal on August 11, 2016 (see, Exhibit A).
Violating Whipple’s ethical duties and obligations as an attorney as defined by the Nevada Rules of Professional Conduct by engaging in repeated instances of violating Rules 1.1 - Competence, 1.3 - Diligence, 1.4 - Communication, 1.16 – Declining or Terminating Representation, ER 3.2 – Expediting Litigation, 5.2 – Responsibilities of a Subordinate Lawyer, 7.1 – Communications Concerning a Lawyer’s Services and ER 8.3 – Reporting Professional Misconduct. The seriousness and scope of the misconduct perpetrated by Whipple over the entire time of legal representation calls for a review of the circumstances outlined below. It is requested that the Review Department order that Whipple be required to return the acknowledged client funds not billed against services rendered, the return of all monies that were paid and billed against due to not properly fulfilling duties and obligations associated with services billed and the financial reimbursement for the $5,000 sanction imposed upon Rodrick by the Eighth Judicial District Court due to Whipple’s violations in properly abiding to the Nevada Rules of Civil Procedure in providing competent and required legal representation.
The allegations herein regarding Whipple and the Firm’s misconduct are summarized as follows:
- Based on Whipple’s own Retainer Agreement, “Agreement to Employ Attorney” signed by Rodrick on January 14, 2016 (See, Exhibit B), it was a reasonable expectation that he would receive legal representation from Whipple and/or the firm in accordance with the Nevada Rules of Professional Conduct. This did not occur.
In November of 2015 Whipple was retained to represent Rodrick as the supervising Nevada attorney for the case overseeing the pro hac vice Arizona attorney Mike Harnden. Whipple was paid $400.00 as the starting retainer and to be billed at $200.00 hourly thereafter.
In the court filings by the plaintiff (convicted sex offender) Andre Wilson, it would be revealed that he had filed the same and/or similar allegations as those presented in the Nevada civil case also as a formal complaint with the FBI field office in Phoenix. As Whipple also retains a law license in Arizona and practices criminal defense law, where as Arizona attorney Mike Harden does not, the representation of Rodrick was extended to include any possible interaction that may occur with a FBI investigation. The retainer agreement prepared by Whipple and signed by Rodrick reflects the potential additional scope of representation. An additional payment of $2,000.00 was sent to Whipple on January 20, 2016 (see, Exhibit C). Based on the formal agreement, it was Whipple’s contractual obligation to meet all requirements set forth for legal representation in accordance to the Nevada Rules of Professional Conduct. During the tenure of Whipple’s legal representation of Rodrick, he would commit ethical violations of the following:
- Rules 1.1 – Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
- Rule 1.3 – Diligence: A lawyer shall act with reasonable diligence and promptness in representing a client.
- Rule 1.4 – Communication: Promptly inform the client of any decision or circumstances with respect to which the client’s informed consent is required by these Rules: (1) Reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (2) Keep the client reasonably requests for information; and (3) promptly comply with reasonable requests for information; and (5) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
- Rule 1.16 – Declining or Terminating Representation: … where representation has commenced, shall withdraw from the representation of a client, if: (b) Withdrawal can be accomplished without material adverse effect on the interest of the client; (7) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating representation.
- Rule 3.2 – Expediting Litigation: A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
- Rule 5.2 – Responsibilities of a Subordinate Lawyer: A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. (a) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
- Rule 7.1 – Communications Concerning a Lawyer’s Services: A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it: Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially ,misleading; (a) Is likely to create an unjustified or unreasonable expectation about results the lawyer can or has achieved, which shall be considered inherently misleading for the purposes of this Rule, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law.
- Rule ER 8.3 – Reporting Professional Misconduct: A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate authority.
- As the Nevada licensed attorney for the case, Whipple demonstrated irrefutable gross negligence in providing even the most basic of the requirements to meet his profession duties. On two occasions Whipple did not appear before the Court for a scheduled hearing even though he was notified well in advance. These egregious failures in adhering to a fundamental procedural requirement left Rodrick completely unrepresented before the Court much to Judge Hardy’s consternation - TWICE.
As inconceivable as it is, there were two hearings before the Court that Rodrick found himself without legal representation even though he had retained two different attorneys to handle such matters. The most outrageous situation was Whipple, whose firm is located in Las Vegas, had specifically advertised the legal service to provide overseeing a pro hoc vice attorney requiring his presence at any hearing before the courts. It should not be unreasonable for the client Rodrick to expect Whipple to know this procedural requirement when offering these particular services by his law firm.
- On July 18, 2016, a significant hearing occurred before Judge Hardy of the Eighth Judicial District Court addressing the Plaintiff’s Motion for Permanent Injunction Against Defendants. Arizona attorney Harnden traveled to Las Vegas at Rodrick’s expense to be present for the hearing. However, without providing any notification or update, Whipple was not present for the hearing as required. Although Harnden’s application pro hac vice had been properly submitted to the Court, it had yet to be approved. He was not allowed to address the Court. As Whipple had promoted his firm’s services to include supervision of a pro hac vice situation, it was his obligation to be well versed and knowledgeable of the procedural necessities such as being present for all hearings before the courts. To further exacerbate the situation, Whipple refused to respond to any communications sent via telephone, email and/or text messaging such as the one sent on July 18, 2017 asking “Why did you not show up to the hearing this am?” and followed with “You caused a lot of issue” (see, Exhibit D). Both texts went unanswered. This infraction of required attendance greatly prejudiced Rodrick before the Court and would create the first incidence that would build upon a pattern of conduct that influencing the Court negatively toward Rodrick’s defense against the frivolous lawsuit (that despite such mistakes he would ultimately prevail). The decision by Whipple to ignore the hearing was a clear violation of Rules 1.1 - Competence, 1.3 - Diligence, 1.4 - Communication, 1.16 – Declining or Terminating Representation, ER 3.2 – Expediting Litigation, 5.2 – Responsibilities of a Subordinate Lawyer, 7.1 – Communications Concerning a Lawyer’s Services.
- On July 28, 2016, another hearing was held before Judge Hardy, this time scheduled to address Rodrick’s Special Motion to Dismiss (Anti-SLAPP). For this hearing Rodrick paid the travel expenses for both attorney Harnden and himself to be present. To Rodrick’s dismay, Whipple would once again not be present for the hearing. It was extremely disconcerting that although the application for pro hac vice had been approved, it had not been filed with the Court prior to the hearing. Once again, this precluded attorney Harnden from addressing the Court on behalf of Rodrick to advance the Motion to Dismiss. Rodrick’s Motion was not allowed any legal representation as planned. Attorney Harnden was able to tell the Court that he had been in contact with the Whipple’s firm who assured him that they were aware of the hearing and Whipple would be present, and if not, someone from the firm would be present. This was an extremely significant setback as Rodrick would ultimately prevail in his Special Motion to Dismiss (Anti-SLAPP), but that victory would be delayed until February of 2017 and signed the Order August 2017. Constituting a 10 month delay that would prove to require tens of thousands of dollars in additional attorney fees to secure the favorable ruling. This was an especially damaging situation among the many infractions to occur that was a clear violations of Rules 1.1 - Competence, 1.3 - Diligence, 1.4 - Communication, 1.16 – Declining or Terminating Representation, 3.2 – Expediting Litigation, 5.2 – Responsibilities of a Subordinate Lawyer, 7.1 – Communications Concerning a Lawyer’s Services.
- It cannot be credibly argued that Whipple was not aware that he was still the attorney of record for Rodrick in July and responsible to be knowledgeable of the case. Furthermore, being present for the hearings before the Court that were held on the 18th and 28th was a minimum requirement and inexcusable professional negligence that it was ignored. This is indisputable due to a court filing submitted on July 21, 2017 that was a Notice of Motion associated to the attorney approval pro hac vice (see, Exhibit E). Whipple had a duty to handle all necessary filings and overseeing the case until his withdrawal was granted with the Order of August 11, 2016. The July 21, 2017 filing performed by the firm proves irrefutably that Whipple was cognizant of his responsibilities and he should have been aware that his conduct associated to the case constituted ethical violations of Rules 1.1 - Competence, 1.3 - Diligence, 1.4 - Communication, 1.16 – Declining or Terminating Representation, 3.2 – Expediting Litigation, 5.2 – Responsibilities of a Subordinate Lawyer, 7.1 – Communications Concerning a Lawyer’s Services.
- Whipple was required to fulfill his duty as the Nevada legal representation of Rodrick for the case until he was officially relieved of the responsibility by Court Order which occurred on August 11, 2016.
In retrospect, it has become clear that due to Whipple’s submission of a Motion to Withdraw as Counsel on July 11, 2016 (see, Exhibit F), he believed himself to be exempt from being required to attend the Court hearings on July 18, 2016 and again on July 28, 2016. This is simply not the case until the Court Order was issued on August 11, 2016 (See, Exhibit A). Any practicing attorney would be well versed in this fundamental “Rule” that applies to all attorneys in all jurisdictions.
There are several points of contention with Whipple’s Motion to Withdraw as Counsel that need to be addressed individually to detail the impropriety:
- It is important to note that at no time did Whipple contact Rodrick to discuss any issues that he was having in providing legal representation for the Nevada case. There may have been communications between Whipple and Harnden, but Rodrick was not, and to this day is not, aware that any discussions occurred concerning this subject at that time. There had been direct communications between Whipple and Rodrick via telephone, email and texts prior to the Motion being filed, so there was no excuse why direct contact could not occur. It was Whipple’s duty to inform Rodrick of any and all concerns and/or specific circumstances that may affect the case and this did not occur prior to his filing the Motion to Withdraw as Counsel. Rule 1.4 – Communication.
- It was Whipple’s responsibility to discuss, plan and coordinate his withdrawal in a manner that would be least intrusive to the active litigation process of the case to best protect Rodrick’s defenses. It would have been virtually impossible for Whipple to have conducted himself in a more detrimental manner, to the point of apparently having conducted himself in a manner to actually sabotage the case in violation of Rule 1.16 – Declining or Terminating Representation.
- Due to these inexplicable actions by Whipple, it would also be the cause for unnecessary delays in the Court reaching a Ruling on the Special Motion to Dismiss (Anti-SLAPP) that would eventually be a favorable result for Rodrick. Arguable a ten month delay that was avoidable and in direct contradiction of expediting the litigation process in violation of Rule 3.2 – Expediting Litigation.
- The Motion to Withdraw as Counsel lists grievances existing between Whipple and Harnden due to “a lack of communication” associated to a default Order issued by the Court. As Rodrick’s Nevada attorney, it was Whipple’s duty to be on top of the case to assure that the pro hac vice attorney was abiding by the required Rules and procedures specific to Nevada. As discussed, Rodrick was not notified that any issue existed and had he been properly updated by Whipple he could have dealt with the situation in an appropriate and timely manner. Whipple chose to simply take the most expeditious exit plan to his benefit with no regard to the Rules that are designed to protect the client Rodrick in violation of Rule 5.2 – Responsibilities of a Subordinate Lawyer.
- It needs to be stated in general terms that all the above details concerning Whipple’s filing a Motion to Withdraw as Counsel was handled in a manner that clearly puts in question the competence and diligence of his conduct. What is frustrating for Rodrick is had Whipple done his job by communicating any grievances and/or irreconcilable conflicts in continuing to be the attorney of record, it could have been addressed and resolved. Even if that required retaining a new attorney licensed to practice in Nevada, which is what eventually occurred. In violation Rules 1 – Competence and 1.3 – Diligence.
- Due to the unethical violations of the Rules, Rodrick is entitled to a full refund of the $2400.00 paid to Whipple and the firm.
In total Rodrick paid Whipple the sum of $2,400.00. The first payment of $400.00 occurred in November of 2015. In January of 2016 an additional $2,000.00 was paid to the firm. The issue being requested of the Nevada State Bar is a review of the ethics violations by Whipple which demand an applicable correction to the obvious inequities realized by Rodrick in his dealings with a licensed attorney who engaged in a plethora of unacceptable business practices. Even basic billing issues had repeatedly occurred:
- On June 4, 2017, Rodrick sent Whipple an email requesting an accounting of the billing for the services rendered in the legal representation for the case (see, Exhibit G). Specifically, Rodrick requested “I am in need of an affidavit of fees for work done by your firm so I can submit them to the court for my ANTI-SLAPP win. My deadline is Monday….” Once again, Whipple completely ignored the email with no acknowledgment of the reasonable request. Rodrick would not receive the needed “affidavit of fees” required to be submitted to the Court.
On February 8, 2017, the Court Granted Rodrick’s Special Motion to Dismiss (Anti-SLAPP) (see, Exhibit H). What is relevant to the request for Whipple and/or the firm to provide “an affidavit of fees” is that an Anti-SLAPP defense victory stipulates a MANDATORY entitlement to recoverable costs for court and attorney fees pursuant N.S.R. §§ 18.020 and 41.670(1) (1). This fact was reflected in the signed Court Notice of Entry of Order of August 14, 2017 (see, Exhibit I, 7:10-11).
Due to Whipple not complying with Rodrick’s reasonable request for accounting, he was unable to submit to the Court a request for the court and attorney fees totaling $2400.00 paid which he was entitled to recover. Whether it was incompetence or malice, Rodrick is now entitled to be reimbursed these monies from Whipple and/or the firm for the outrageous and willful ethics violations of Rules 1.1 – Competence, 1.3 – Diligence and Rule 1.4 – Communication.
- At the very least it is reprehensible that Whipple has reneged on his own documented commitment to honor the return of monies paid by Rodrick for which no legal services were rendered. On October 6, 2016 (OVER a year ago) Whipple replied to an email request sent by Rodrick for a return of his monies paid by responding that he would issue a refund of $747.00 (see, Exhibit J) As was typical of all other matters in dealing with Whipple and the firm, it was nothing but false promises accompanied by incompetence and negligence. All additional follow up communication by Rodrick would be ignored by Whipple. Ignoring the refund of client funds that were not billed for services rendered by the law firm is a clear and basic ethics violation of Rules 1 – Competence, 1.3 – Diligence and Rule 1.4 – Communication.
- Due to the unethical violations of the Rules, Rodrick is entitled to a full reimbursement by Whipple and/or the firm for the $5000.00 Court’s sanction he was forced to pay. The sanction was imposed by the Court due to the determination that the “Local Rules” were not properly followed by the “defendants”
When a client hires a licensed attorney they do so under the reasonable expectation that the lawyer is competent, knowledgeable, experienced, responsible and committed to providing legal representation in the best interest of the client. Rodrick certainly was operating under these parameters and beliefs when retaining Whipple and the firm to handle the Nevada case he found unwittingly thrust upon him. He certainly did not expect to be ordered by the Court to pay a sanction of $5,000.00 due to nothing of his own doing but rather the incompetence of his legal counsel.
On November 17, 2016 the Court had enough of the repeated misconduct displayed by the “defendants” in not being present for Court hearings, abiding to the Nevada local rules and by their actions creating unnecessary addition work and litigation for all parties involved in the case. Specifically, the Court articulated its frustration by ordering sanctions against the “defendants” detailed in the Minutes (see, Exhibit K):
“COURT FURTHER ORDERED that Plaintiff was hereby AWARDED $5,000.00 in attorney’s fees and costs, due to Defendants’ repeated failure to comply with local rules, which resulted in an unreasonable multiplication of proceedings….”
This ruling by the Court was expanded upon and officially documented in the signed Court Notice of Entry of Order of August 14, 2017 (see, Exhibit I, 19:¶80) by stating:
“The Court finds that the following actions and mistakes of the Arizona Defendants were not reasonable:
- Removal of this action to the Federal District Court of Nevada;
- The Court finds the removal was not appropriate
- The fallout from the remand of this action from the federal court to this Court;
- The Arizona Defendants displayed a lack of understanding of the relationship between this Court and the Nevada federal court;
- The Arizona Defendants displayed a lack of understanding of Nevada procedures for properly filing in this Court pleadings that had been filed in the federal court;
Rodrick was placed in the situation of either agreeing to immediately pay the $5,000.00 sanction for the unprofessional conduct of his legal representation or be in default of the civil lawsuit that was frivolous based on false and fabricated claims and allegations that would be irreparable damage to his reputation. The money was painfully paid to the opposition legal counsel. Rodrick understandably was perplexed that he found himself in this untenable legal consequences and has sought an explanation to what occurred. In questioning Arizona attorney Harnden on a few occasions, the answer has been repeatedly been a consistent articulation that as the Nevada local counsel all the responsibility was with Whipple. This position was conveyed in no uncertain terms by Harnden in email exchanges wherein he made very definitive statements (see, Exhibit L):
- Email response July 26, 2017, 7:53am: “I do believe you are entitled to the return of the $5k, but not from me” and “If you are claiming the lack of compliance with local rules created this situation and you should have that money ‘reimbursed’ while we continue to seek it through litigation, your claim is with Whipple’s office, not me. I followed their guidance (along with my own reading of the rules) as to how to proceed after remand.”
- Email response July 26, 2017, 2:25pm: “I said I believed you should receive the $5,000 back, either from Mr. Wilson’s attorneys as they have no valid legal claim to it or from Whipple for failing to show for those hearings and failing to act reasonably as local counsel.”
- Email response July 30, 2017, #1: “You are still trying to hold me responsible for Whipple’s lack of knowledge and failures.”
- Email response July 30, 2017, #2: “Again, Whipple did not show up. Again, I did what I could to show the injustice of what they were attempting to do to you. I am not responsible for his failures or making sure he maintains his obligations (separate from mine) to you as your attorney. He is not my employee or subordinate. I cannot force him to show up as he is required. It is not ultimately my responsibility to know the rules; it was Whipple’s as our NV local counsel. I relied on the guidance and discussions I had with his office to try to get the guidance before the judge and try to find out the procedure to get the motion transferred. The only reason they obtained the injunction at all is because Whipple did not show up for the two hearings as he was required to do. Any fallout from those actions are his responsibility, not mine.”
- Email response July 30, 2017, 9:38am: “For both of those hearings, Whipple was your local counsel. He is responsible for compliance with the local rules and was required to attend the hearings. He did not. I was aware I was not admitted for the first hearing, but went to assist Whipple as well as I could, because he obviously did not know much about the case. He did not show up, so I attempted to do what I could to prevent you suffering negative consequences from that. For the 2nd hearing, I reminded Whipple’s office about it several times beforehand.”
The bottom line is Whipple was retained to provide legal representation specifically to provide knowledge and expertise as to the Nevada local rules. As repeatedly and consistently articulated by Arizona attorney Mike Harnden, this is not what occurred. Due to this malfeasance in legal representation Rodrick was forced to pay a $5,000.00 court sanction not of his own making, but that of incompetent legal representation specifically identified as not adhering to the local rules of Nevada. It should be Whipple’s responsibility to reimburse Rodrick the $5,000.00 as it was clearly issued by the Court with Judge Hardy citing the ethical violations that would be governed pursuant Rules 1.1 - Competence, 1.3 - Diligence, 1.4 - Communication, 1.16 – Declining or Terminating Representation, 3.2 – Expediting Litigation and 5.2 – Responsibilities of a Subordinate Lawyer.
The Nevada State Bar is charged with the responsibility for protecting the public from problematic attorneys. As part of this duty, the State Bar should ensure that the public has ready access to information about attorney misconduct, so it can make informed decisions about who to retain when seeking counsel.
For these reasons, the Nevada State Bar should conduct an In-depth investigation into the allegations outlined in detail in this complaint in regards to attorney Whipple and the Firm. The damages realized by Rodrick due to the extensive misconduct of Whipple and the Firm are significant and must be thoroughly reviewed to determine the amount of culpability that can be associated with their malpractice. I submit this complaint and ask that the Nevada State Bar take action against Whipple in the form of the appropriate reimbursement of non-billed client funds of Rodrick, all billed client funds paid by Rodrick, the $5,000 Court Sanction paid by Rodrick and to make public the various acts of misconduct described herein.
Thank you in advance for your consideration and anticipated cooperation.
Respectfully submitted this 8th day of November, 2017,