Confidentiality Breaches Do Not Justify Dismissal in Bar Discipline; Fifth Amendment Adverse Inferences Allowed — In re Discipline of Sandy Van

Introduction

In this automatic review of a disciplinary matter, the Supreme Court of Nevada issued an Order of Remand clarifying several significant doctrines governing attorney discipline in the state. The case arises from a four-day hearing before a Southern Nevada Disciplinary Board panel concerning attorney Sandy Van (Bar No. 10785). The State Bar alleged multiple violations of the Nevada Rules of Professional Conduct (RPC), including improper supervision of nonlawyer assistants (RPC 5.3), improper sharing of professional independence with or control by a nonlawyer (RPC 5.4), unauthorized practice of law (RPC 5.5), conflicts of interest (RPC 1.7), and improper solicitation (RPC 7.3).

The hearing panel ultimately found a single violation—RPC 5.4—based on evidence that a nonlawyer, Ngan Van Le, exercised behind-the-scenes control over Van and her firm. It dismissed other counts at the pleading stage, including those under RPC 1.7 and 7.3, in part due to alleged State Bar confidentiality breaches, and found the State Bar had not proved RPC 5.3 and 5.5 violations related to client Ariana Perez‑Nunez. Both the State Bar and Van challenged aspects of the panel’s rulings.

The Supreme Court’s opinion does three important things:

It rejects dismissal of disciplinary charges as a remedy for alleged State Bar confidentiality breaches absent a showing of substantial prejudice, and reverses the prehearing dismissal of the RPC 1.7 and 7.3 counts.
It confirms that adverse inferences may be drawn in attorney disciplinary proceedings from an attorney’s invocation of the Fifth Amendment, provided there is independent supporting evidence.
It affirms the evidentiary admissibility of authenticated text messages and upholds the panel’s finding of an RPC 5.4 violation, while also upholding the panel’s rejection of RPC 5.3 and 5.5 violations relating to Perez‑Nunez on a substantial evidence basis.

Summary of the Opinion

The Supreme Court of Nevada:

Held that dismissal of disciplinary counts is not an appropriate remedy for alleged State Bar confidentiality breaches absent a showing of substantial prejudice, analogizing to the stringent standard for dismissal due to government misconduct in criminal cases. It reversed the panel chair’s dismissal of the RPC 1.7 (conflicts) and RPC 7.3 (solicitation) counts and remanded.
Clarified that because Nevada disciplinary proceedings are civil in nature, an adverse inference may be drawn from a respondent-attorney’s invocation of the Fifth Amendment, if independent evidence exists. The panel erred by categorically precluding such an inference, though the Court found no material impact here given the proven RPC 5.4 violation.
Affirmed the admissibility of text messages between Van, Le, and a former firm employee, concluding they were properly authenticated through testimony, phone number linkage, and contextual content consistent with law firm operations.
Affirmed the panel’s determination that the State Bar did not prove RPC 5.3 and RPC 5.5 violations in the Perez‑Nunez matter by clear and convincing evidence, citing conflicting evidence and permissible typed electronic signatures under Nevada law.
Affirmed the finding—supported by substantial evidence—of an RPC 5.4 violation based on nonlawyer control, including text messages indicating that Le had a vested interest in case intake and retention and that he could force the firm to keep “bad clients.”
Remanded for further proceedings on the reinstated RPC 1.7 and 7.3 counts and directed the panel to recommend appropriate discipline in light of the sustained RPC 5.4 violation and any additional violations found. It reminded that under the ABA Standards, sanctions should be consistent with the most serious misconduct proven.

Analysis

Precedents Cited and Their Influence

The Court drew on several strands of Nevada and federal precedent to resolve procedural and evidentiary disputes:

Dismissal as a remedy for misconduct: The Court analogized to the criminal context where dismissal is a “drastic” remedy used sparingly. It cited Sheriff v. Keeney, 106 Nev. 213, 791 P.2d 55 (1990) and Lay v. State, 110 Nev. 1189, 886 P.2d 448 (1994) for the requirement of “substantial prejudice” and State v. Gonzalez, 139 Nev. 304, 535 P.3d 248 (2023), quoting State v. Babayan, 106 Nev. 155, 787 P.2d 805 (1990), emphasizing dismissal with prejudice only when evidence is irrevocably tainted or the defense is fatally prejudiced.
Nature and purposes of discipline: Matter of Discipline of Arabia, 137 Nev. 568, 495 P.3d 1103 (2021) provided two anchors: (1) disciplinary proceedings are civil in nature, and (2) their core purpose is to protect the public, the courts, and the profession, not to punish attorneys or reward procedural gamesmanship. This counseled against dismissal as a sanction for alleged Bar misconduct when lesser measures might suffice and protection-focused objectives would be undermined.
Adverse inferences from Fifth Amendment invocations: Aspen Financial Services, Inc. v. Eighth Jud. Dist. Ct., 128 Nev. 635, 289 P.3d 201 (2012) and Baxter v. Palmigiano, 425 U.S. 308 (1976), as well as Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258 (9th Cir. 2000), confirm that adverse inferences are permissible in civil cases where independent evidence supports the facts at issue. Arabia’s recognition that bar discipline is civil ties those principles directly to disciplinary hearings.
Evidence authentication: NRS 52.015(1) and NRS 52.025, together with Rodriguez v. State, 128 Nev. 155, 273 P.3d 845 (2012), establish that authentication can be proven through witness testimony, circumstantial corroboration, or the content/context of the writing. This supported admitting the text messages used to prove the RPC 5.4 violation.
Burden and standard of proof; appellate review: In re Discipline of Drakulich, 111 Nev. 1556, 908 P.2d 709 (1995) (clear and convincing burden on the State Bar); In re Discipline of Schaefer, 117 Nev. 496, 25 P.3d 191 (2001) (explaining clear and convincing evidence); SCR 105(3)(b) and In re Discipline of Colin, 135 Nev. 325, 448 P.3d 556 (2019) (deferential review of factual findings, upheld if not clearly erroneous and supported by substantial evidence).
Credibility and substantial evidence: Quintero v. McDonald, 116 Nev. 1181, 14 P.3d 522 (2000) (witness credibility for the factfinder), and Ellis v. Carucci, 123 Nev. 145, 161 P.3d 239 (2007) (defining substantial evidence) reinforced deference to the panel’s resolution of disputed facts regarding the Perez‑Nunez file.
Electronic signatures: NRS 719.100 and NRS 719.260 confirm that typed or electronic signatures are valid under Nevada law, undercutting the State Bar’s reliance on a typed signature in a demand letter as proof of unauthorized practice or lack of attorney involvement.

Legal Reasoning

1) Dismissal for State Bar Confidentiality Breaches Is Not an Appropriate Remedy Absent Prejudice

Van alleged the State Bar improperly shared her initial narrative responses with grievants or their counsel prior to filing the complaint and mishandled information in response to public records requests after filing. The panel chair dismissed the RPC 1.7 and 7.3 counts, premised in part on those alleged breaches. The Supreme Court reversed, stressing:

Nevada has never recognized dismissal of disciplinary charges as an appropriate remedy for such breaches.
By analogy to criminal cases, dismissal requires a showing of substantial prejudice to the defense, and dismissal with prejudice requires irrevocable taint or fundamental unfairness such that recharging is precluded. No such prejudice was identified in the record.
Dismissal would undermine the protective purpose of discipline (public, courts, profession), not serve it.
Even as a pleading matter under NRCP 12(b)(5), the record did not support dismissal for failure to state a claim.

The Court therefore reinstated the RPC 1.7 and 7.3 counts and remanded for further proceedings on those charges.

2) Adverse Inferences from Fifth Amendment Invocations Are Permissible in Disciplinary Proceedings

Van invoked her Fifth Amendment privilege in response to State Bar requests for information during the investigation. The hearing panel precluded any adverse inference from this invocation. The Supreme Court concluded that was error because:

Disciplinary proceedings are civil. Under Baxter, Aspen Financial, and Glanzer, adverse inferences are permissible in civil matters if supported by independent evidence of the fact at issue.
The panel should have considered whether, under the circumstances and the record, such an inference was appropriate.
Nonetheless, the error did not alter the outcome because the panel found, and the Court affirmed, an RPC 5.4 violation on the very topic implicated by Van’s invocation.
On remand, if the State Bar re-raises the argument, the panel must conduct the proper adverse‑inference analysis.

3) Authentication of Text Messages

Van challenged the admission and authenticity of text messages among herself, Le, and a former employee—messages central to the RPC 5.4 finding. The Court held the messages were properly admitted, reasoning that:

Under NRS 52.015(1) and NRS 52.025, authentication may be proved by testimony from a witness with personal knowledge.
Rodriguez permits authentication by circumstantial evidence and by the content or context unique to the parties.
Here, Van acknowledged specific text exchanges, identified Le’s phone number, and the former employee testified to authenticity. The content reflected law-firm-specific matters (case references, internal events), satisfying the evidentiary threshold.

4) Clear-and-Convincing Proof and Deferential Review Sustained the Panel’s Disposition of RPC 5.3 and 5.5 (Perez‑Nunez)

The State Bar asserted that Van violated RPC 5.3 and 5.5 in the Perez‑Nunez matter. The panel disagreed, and the Supreme Court affirmed, emphasizing:

The State Bar bears the burden of clear and convincing evidence. The record evidence was “minimal and often conflicting.”
Internal case manager notes could reflect attorney-directed work; a typed signature on a demand is permissible under Nevada’s electronic signature statutes; and testimony that Perez‑Nunez never met an attorney was rebutted by other evidence (signed retainer by attorney Michael Nixon, Van’s testimony, and a voicemail by another firm attorney).
Credibility determinations rest with the trier of fact (Quintero). The panel’s finding that the State Bar failed to carry its burden is supported by substantial evidence (Ellis), and thus not clearly erroneous (Colin; SCR 105(3)(b)).

5) Substantial Evidence of an RPC 5.4 Violation: Nonlawyer Control over the Law Firm

The panel found, and the Court affirmed, a violation of RPC 5.4 based on nonlawyer control. Several former employees testified that Le made managerial decisions and had to approve dropping clients. Text messages from Van reinforced this:

“Well then we got to tell Consult he forces me to keep bad clients.”
“He has a vested interest in us landing cases and keeping them.”
“Consult has been here longer than you. And he refers us a lot of the cases that you are working on. The last person you want to piss off is the hand that feeds you.”

This evidence—combined testimony and corroborative texts—constituted clear and convincing proof that a nonlawyer’s influence compromised Van’s professional independence, which RPC 5.4 forbids.

Impact and Implications

Immediate Procedural Impact

The RPC 1.7 (current-client conflicts) and RPC 7.3 (solicitation) counts are reinstated. The hearing panel must adjudicate those charges and recommend sanctions considering all sustained violations.
The Supreme Court approved the panel’s finding of an RPC 5.4 violation. Sanctioning on remand must, at minimum, be consistent with the most serious misconduct proven, in accordance with the ABA Standards for Imposing Lawyer Sanctions.
Further proceedings must be docketed as a new matter.

Substantive and Procedural Guidance for Future Cases

Confidentiality breaches by Bar Counsel: Alleged breaches do not warrant dismissal absent a concrete showing of substantial prejudice or irrevocable taint. Panels should be cautious about using dismissal as a quasi-sanction and instead evaluate tailored remedies (the Court did not prescribe them here) consistent with the protective purpose of discipline.
Fifth Amendment invocations: Panels should expressly analyze whether an adverse inference is permissible and appropriate whenever an attorney invokes the Fifth in a disciplinary matter. The key prerequisite is independent evidence supporting the fact in question.
Digital evidence: Text messages and similar electronic communications can be authenticated through testimony, metadata-linkage like phone numbers, and context/content. Practitioners should expect such communications to be admissible if foundational requirements are met.
Supervision and unauthorized practice: Bare inferences from administrative artifacts (e.g., typed signatures) will not carry the State Bar’s clear-and-convincing burden, especially when contradicted by other evidence of attorney involvement. The Court’s reliance on Nevada’s electronic signature statutes is a salient check against overreading form elements.
Nonlawyer influence: The case is a pointed warning that nonlawyer “consultants,” marketers, or referrers may not direct client acceptance/retention, managerial decisions affecting representation, or otherwise compromise a lawyer’s independent professional judgment. Documentary proof (text messages) and witness testimony can decisively establish violations.

Complex Concepts Simplified

RPC 5.4 (Professional Independence of a Lawyer): Prohibits lawyers from allowing nonlawyers to control professional judgment, sharing legal fees with nonlawyers in ways that affect independence, or forming partnerships with nonlawyers if any activities involve practicing law. Bottom line: nonlawyers cannot run or direct the legal work.
RPC 5.3 (Responsibilities Regarding Nonlawyer Assistants): Requires lawyers to implement measures ensuring that staff and contractors act consistently with the lawyer’s ethical duties. It is about supervision and accountability for nonlawyer conduct related to legal services.
RPC 5.5 (Unauthorized Practice of Law): Bars practicing law without a license or assisting someone else in doing so. In firms, this often arises when nonlawyers perform tasks reserved to attorneys without adequate supervision.
RPC 1.7 (Conflict of Interest: Current Clients): Prohibits representation if there is a concurrent conflict unless informed consent and other conditions are met. The counts here are reinstated and will be adjudicated on remand.
RPC 7.3 (Solicitation of Clients): Governs direct solicitation of prospective clients, restricting in-person, live telephone, or real-time electronic contact when a significant motive is pecuniary gain, subject to exceptions. Those counts are also reinstated.
Clear and convincing evidence: A higher standard than “preponderance,” requiring evidence of tangible facts that would convince a reasonable person the claim is highly probable, though not beyond a reasonable doubt.
Substantial evidence: On appeal, findings are upheld if supported by evidence that a reasonable person would accept as adequate. Appellate courts defer to the factfinder’s credibility determinations.
Adverse inference (Fifth Amendment): In civil cases, if a party refuses to answer due to self-incrimination, the factfinder may infer the answer would have been unfavorable—but only if independent evidence supports the fact in question.
Authentication of electronic communications: Before admitting texts or emails, the proponent must show they are what they claim to be. This can be proven through witness testimony, circumstantial evidence (e.g., phone numbers), or the content itself (references only the parties would know).
Electronic/typed signatures: Nevada recognizes electronic signatures. A typed name or electronic indication of assent can be legally effective; by itself, it is not proof of unauthorized practice or lack of attorney participation.

Conclusion

The Supreme Court of Nevada’s decision in In re Discipline of Sandy Van meaningfully clarifies Nevada’s disciplinary landscape. The Court reaffirms that attorney discipline is a civil, protection-oriented regime and that extreme remedies like dismissal are inappropriate absent a showing of substantial prejudice. It instructs hearing panels to apply the civil adverse‑inference doctrine when attorneys invoke the Fifth Amendment, provided independent evidence exists, and it endorses modern evidentiary practices for authenticating digital communications.

Substantively, the opinion underscores the vitality of RPC 5.4: nonlawyer actors cannot control or materially influence the professional judgments of lawyers or the management of matters in ways that affect representation. At the same time, the Court’s deference to the panel’s nonviolation findings on RPC 5.3 and 5.5 in the Perez‑Nunez matter illustrates the rigor of the clear‑and‑convincing standard and the high degree of appellate deference to factfinding.

On remand, the reinstated RPC 1.7 and 7.3 counts must be adjudicated, and the sanction recommendation recalibrated under the ABA Standards to reflect the most serious misconduct proven. The opinion provides valuable guidance to lawyers, disciplinary authorities, and hearing panels alike: protect client confidences and the integrity of the process, ensure independent professional judgment free from nonlawyer control, and evaluate evidence with appropriate civil standards, including adverse inferences when justified.

Key Takeaways

Alleged confidentiality breaches by Bar Counsel do not justify dismissing disciplinary charges absent substantial prejudice or irrevocable taint.
Adverse inferences from Fifth Amendment invocations are available in Nevada attorney discipline proceedings, conditioned on independent supporting evidence.
Text messages can be authenticated and admitted through testimony and content/context evidence.
Typed/electronic signatures are legally valid in Nevada and, without more, do not indicate unauthorized practice.
Nonlawyer control over a law practice violates RPC 5.4; evidence of such control will sustain discipline.
On remand, reinstated RPC 1.7 and 7.3 charges will proceed, and sanctions must align with the most serious proven misconduct.