26 28 ANS BRET O. WHIPPLE, ESQ. Nevada State Bar No. 6168 JUSTICE LAW CENTER oy, FILED 1100 South 10” Street Las Vegas, Nevada 89104 SEP 15 200 (702) 731-0000 Telephone (702) 974-4008 Facsimile wv ape NEVA Adinin@ Justice-Law-Center.com POE ORL STATE BAR OF NEVADA SOUTHERN NEVADA DISCIPLINARY BOARD STATE BAR OF NEVADA, ) OBC19-0665, OBC19-0969, } OBC19-1163, OBC20-0352 Complainant, ) ) vs. ) ) BRET O. WHIPPLE, ESQ. ) Nevada Bar No.: 6168 ) ) Respondent ) VERIFIED ANSWER AND AFFIRMATIVE DEFENSES COMES NOW Respondent, BRET O. WHIPPLE, ESQ., of JUSTICE LAW CENTER| and hereby responds to the State Bar of Nevada's Complaint and thus Respondent submits his Verified Answer and Affirmative Defenses as follows: DATED this 14 day of September, 2020. Submitted a er JRET O. WHIPPLE, ESQ. Nevada State Bar No, 6168 JUSTICE LAW CENTER 1100 South 10” Street Las Vegas, Nevada 89104 (702) 731-0000 Telephone (702) 974-4008 Facsimile Adinin@Justice-Law-Center.com VERIFIED ANSWER AND AFFIRMATIVE DEFENSES PAGE 1 OF 1019 n 12 13 a4 15 16 a7 18 19 20 a 22 ANSWER GENERAL ALLEGATIONS 1. Answering the allegation in paragraph 1, Respondent admits the allegations. 2. Answering the allegation in paragraph 2, Respondent denies that he engaged in acts of misconduct warranting the imposition of professional discipline. GINA IACUANIELLO OBC19-0665 3. Answering the allegations in Paragraphs 3, 5, 2, 26, 28, 39, 41 and 43 of the ‘Complaint, Respondent, admits the allegations contained therein. 4, Answering the allegations in Paragraphs 8, 9, 10, 15, 16, 25, 29, 38, 42 and 44 of the Complaint, Respondent, denies the allegations contained therein. 5, Answering the allegations in Paragraphs 4, 6, 7, 11, 13, 14, 17, 18, 19, 20, 21, 22, 23, 24, 27, 30, 31, 32, 33, 34, 35, 36, 37, and 40 of the Complaint, Respondent is without knowledge or information to form a sufficient belief as to the trust or falsity of the allegations} ‘contained in Paragraphs 4, 6, 7, 11. 13, 14, 17, 18, 19, 20, 21, 22, 23, 24, 27, 30, 31, 32, 33, 34, 35, 36, 37, and 40 and therefore Respondent Denies each and every allegation contained therein. 6. Respondent denies each and every material allegation not heretofore controverted| and demands strict proof thereof. JAMES ANDERSON QBC19-0969 7. Answering the allegations in Paragraphs 49 and 51 of the Complaint, Respondent, admits the allegations contained therein, 8. Answering the allegations in Paragraphs 45 (see 10 below), 52, 53, 54, 56, and 57 of the Complaint, Respondent, denies the allegations contained therein. 9, Answering the allegations in Paragraphs 46, 47, 48, 50, 55, 58, and 59 of the Complaint, Respondent is without knowledge or information to form a sufficient belief as to the trust or falsity of the allegations contained in Paragraphs 46, 47, 48, 50, 55, 58, and 59 and therefore Respondent Denies each and every allegation contained therein. YERIFIED ANSWER AND AFFIRMATIVE DEFENSES PAGE 20F 10a0 a 2 13 aa 18 16 ro a8 19 20 au 24 25 26 27 28 10. Answering the allegation in Paragraph 45 more completely, James Anderson did ‘retain an associate of Respondent, JEB BOND, ESQ,, to represent him in a divorce; however, ‘Mr. Anderson did not retain the Respondent himself to represent him in a divorce. 11, Respondent denies each and every material allegation not heretofore controverted and demands strict proof thereof. SARA WESTPHAL OBC19-1163 12. Answering the allegations in Paragraphs 61, 62, 63, 69, and 71 of the Complaint, Respondent, admits the allegations contained therein. 13. Answering the allegations in Paragraphs 70, 74, and 75 of the Complaint, Respondent, denies the allegations contained therein. 14, Answering the allegations in Paragraphs 60, 64, 65, 66, 67, 68, 72, and 73 of the ‘Complaint, Respondent is without knowledge or information to form a sufficient belief as to the| trust or falsity of the allegations contained in Paragraphs 60, 64, 65, 66, 67, 68, 72, and 73 and therefore Respondent Denies each and every allegation contained therein, 15. Respondent denies each and every material allegation not heretofore controverted ‘and demands strict proof thereof. JOHN NAYLOR OBC20-0352 16. Answering the allegations in Paragraphs 76, and 81 of the Complaint, Respondent, admits the allegations contained therein. 17, Answering the allegations in Paragraphs (NONE) of the Complaint, Respondent, denies the allegations contained therein. 18. Answering the allegations in Paragraphs 77, 78, 79, and 80 of the Complaint, Respondent is without knowledge or information to form a sufficient belief as to the trust or falsity of the allegations contained in Paragraphs 77, 78, 79, and 80 and therefore Respondent Denies each and every allegation contained therein. VERIFIED ANSWER AND AFFIRMATIVE DEFENSES PAGE 3 OF 1010 n 12 13 wv 48 19 20 a 22 23 24 25 26 a7 28 19. Respondent denies each and every material allegation not heretofore controverted and demands strict proof thereof. COUNT RPC Rule 1.1 (Competence) 20. Answering paragraph 82 of Count I, Respondent states the paragraph does not require an averment, 21. Answering paragraph 83 through 86 in Count I, Respondent repeats and incorporates by reference its responses to the preceding Paragraphs as though fully set forth herein. 22. Answering paragraphs 83 through 86 of Count I, Respondent denies the allegations. COUNT RPC Rule 1.3 (Diligence) 23. Answering paragraph 87 of Count I, Respondent states the paragraph does not| require an averment. 24. Answering paragraph 88 through 91 in Count Il, Respondent repeats and! incorporates by reference its responses to the preceding Paragraphs as though fully set forth herein. 25. Answering paragraphs 88 through 91 of Count I, Respondent denies the allegations COUNT I RPC Rule 1.4 (Communication) 26. Answering paragraph 92 of Count ITT, Respondent states the paragraph does not require an averment. 27. Answering paragraph 93 through 97 in Count III, Respondent repeats and incorporates by reference its responses to the preceding Paragraphs as though fully set forth; herein. VERIFIED ANSWER AND AFFIRMATIVE DEFENSES PAGE 4 OF 1016 re 18 19 20 a 22 23 24 25 a 28 28. Answering paragraphs 93 through 97 of Count ITT, Respondent denies the: allegations. RPC Rule 1.15 (Safekeeping) 29. Answering paragraph 98 of Count IV, Respondent states the paragraph does not require an averment. 30. Answering paragraph 99 through 107 in Count IV, Respondent repeats and incorporates by reference its responses to the preceding Paragraphs as though fully set forth herein, 31. Answering paragraphs 99 through 107 of Count IV, Respondent denies the allegations. COUNTY RPC Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants) 32, Answering paragraph 108 of Count V. Respondent states the paragraph does not require an averment. 33. Answering paragraph 109 of Count 113 in Count V, Respondent repeats and) incorporates by reference its responses to the preceding Paragraphs as though fully set forth! herein, 34. Answering paragraph 109 of Count 113, inclusive of Count V, Respondent denies the allegations. COUNT VI RPC Rule 5.5 (Unauthorized Practice of Law) 35. Answering paragraph 114 of Count VI, Respondent states the paragraph does not require an averment, 36. Answering paragraph 115 of Count 119 in Count VI, Respondent repeats and incorporates by reference its responses to the preceding Paragraphs as though fully set forth herein. VERIFIED ANSWER AND AFFIRMATIVE DEFENSES PAGE 5 OF 1016 a7 18 as 290 22 23 24 23 27 23 37, Answering paragraph 11S of Count 119, inclusive of Count V, Respondent! denies the allegations. COUNT VIT RPC Rule 8.1 (Bar and Disciplinary Matters) 38. Answering paragraph 120 of Count VI, Respondent states the paragraph does: ‘not require an averment, 39. Answering paragraph 121 of Count 125 in Count VII, Respondent repeats and incorporates by reference its responses to the preceding Paragraphs as though fully set forth herein. 40. Answering paragraph 121 of Count 125, inclusive of Count VII, Respondent denies the allegations. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE The State Bar's Complaint fails to state a claim upon which relief can be granted. Nev. R. Civ. P,, Rule 12(6)(5). SECOND AFFIRMATIVE DEFENSE At all times herein, Respondent made reasonable efforts to ensure that the firm had in| effect measures giving reasonable assurance that the nonlawyer assistant's conduct was| ‘compatible with Respondent's professional obligations. THIRD AFFIRMATIVE DEFENSE The State Bar's Complaint improperly exceeds the scope of authority in stating Respondent failed to provide a proper accounting, See Paragraph 122 of the Complaint. FOURTH AFFIRMATIVE DEFENSE Respondent neither ordered, nor with knowledge of the specific conduct, ratified the alleged misconduct hereit FIFTH AFFIRMATIVE DEFENSE At all times herein, Respondent lacked knowledge and/or timely notice of the alleged! ‘misconduct at a time when its consequences could have been avoided or mitigated. YERIFIED ANSWER AND AFFIRMATIVE DEFENSES PAGE 6 OF 1018 as 20 21 22 23 24 26 27 238 SIXTH AFFIRMATIVE DEFENSE Upon leaming of the alleged misconduct, Respondent took reasonable remedial action. SEVENTH AFFIRMATIVE DEFENSE If any of the alleged Rules violations are found to have occurred by clear and convincing! evidence, Respondent lacked the requisite mental state (neither intentional, knowing nor negligent) under ABA Standards for Imposing Lawyer Sanctions 3.0 to warrant either a finding that she violated the Rule or to Warrant the imposition of a discipline sanction. EIGHTH AFFIRMATIVE DEFENSE Any alleged harm or potential harm to the client was caused by the acts, omissions, negligence, or intentional conduct of third parties. NINTH AFFIRMATIVE DEFENSE Pursuant to SCR. 102.5(2), Respondent asserts the following as mitigating circumstances that may justify a reduction in the degree of discipline to be imposed, including, but not limited, to: (@) vietim of theft; (b) absence of a dishonest or selfish motive: (©) timely good faith effort to make restitution or to rectify consequences of misconduct; (d) full and free disclosure to disciplinary authority and/or cooperative attitude toward) proceeding; (©) character and/or reputation: (f) imposition of other penalties or sanctions, and; (g) remorse. TENTH AFFIRMATIVE DEFENSE If any of the alleged Rules violations are found to have occurred by clear and convincing] evidence, the mitigating factors of SCR 1025 outweigh any aggravating factors in the imposition of any sanction. ai VERIFIED ANSWER AND AFFIRMATIVE DEFENSES PAGE7 OF 1029 a 12 13 aa 15 16 7 18 20 a 2 23 2a 25 26 27 28 ELEVENTH AFFIRMATIVE DEFENSE If any of the alleged Rules violations are found to have occurred by clear and convincing] evidence, any imposition of lawyer sanction must reflect Respondent's individual conduct and] ‘circumstances pursuant to ABA Standards for Imposing Lawyer Sanctions 1.3. TWELFTH AFFIRMATIVE DEFENSE The State Bar's allegations of professional misconduct are barred by the doctrines of| waiver, estoppel, accord and satisfaction, THIRTEENTH AFFIRMATIVE DEFENSE Respondent reserves the right to amend this answer, or seek leave to amend this answer} to assert additional defenses, if applicable. EQURTEENTH AFFIRMATIVE DEFENSE Respondent states, pursuant to NRS 41.475, a strict reading of the statute would lead one to conclude, Respondent is not liable for the intentional criminal conduct of its then employee, Robert Herman, Citing Wood v. Safeway’. (emphasis added) NRS 41.745 Liability of employer for intentional conduct of employee; limitations. 1. An employer is not liable for harm or injury caused by the intentional conduct of an employee if the conduct of the employee: (a) Was a truly independent venture of the employee; (b) Was not committed in the course of the very task assigned to the employee; and (©) Was not reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his or her employment. For the purposes of this subsection, conduct of an employee is reasonably foreseeable if a person of ordinary intelligence and prudence could have reasonably anticipated the conduct and the probability of injury. 2. Nothing in this section imposes strict liability on an employer for any unforeseeable intentional act of an employee. 1. Contractor, who employed a worker who sexually assaulted a store employee where the worker served as a janitor, was not liable for the assault because the worker's criminal act was an independent, intervening act. See Wood v. Safeway, Inc., 121 Nev. 724, 121 P.3d 1026, 121 Nev. Adv. Rep. 73, (Nev. 2005). (emphasis added) VERIFIED ANSWER AND AFFIRMATIVE DEFENSES PAGE 8 OF 10FIFTEENTH AFFIRMATIVE DEFENSE Pursuant to Rule L1 of N.R.C.P. as amended, all possible affirmative defenses may not have been alleged herein insofar as sufficient facts are not available after reasonable inquiry from the filing of the Bar's Complaint, and therefore, Respondent, reserves the right to amend its Answer to allege additional affirmative defenses, delete or change the same as subsequent investigation warrants, WHEREFORE, Respondent, Bret 0. Whipple, Esq., requests judgment as follows: 1. That the State Bar take nothing by virtue of the Complaint, and that the same be dismissed with prejudice; and, 2 ? Jes such ater sli asthe Panel or Court may deem just and proper. was DATED this 54" day of aden 2020 Submitted B: BRET O. WHIPPLE, ESQ ‘Nevada State Bar No. 6168 JUSTICE LAW CENTER 1100 South 10" Street Las Vegas, Nevada 89104 (702) 731-0000 Telephone (702) 974-4008 Facsimile Admin@ Justice-Law-Center.com VERIFICATION I, Bret O. Whipple, Esq., being first duly swom, deposes and says: Tam the Respondent in this matter. T have read the foregoing Answer and know the contents thereof. ‘The same are true and correct of my own knowledge except those matters stated upon information and belief and, as to those matters, I believe them to be true. DATED this 14" day of September, 2020. JUSTICE LAW CENTER Submitted Bys, a BRET O. WHIPPLE, ESQ. Nevada State Bar No. 6168 VERIFIED ANSWER AND AFFIRMATIVE DEFENSES PAGE 9 OF 1016 wv 18 19 20 {TIFICATE OF SERVI ut Pursuant to DRP 18((b)(2) and NRCP 5(b), T certify that on the 4" day of September, 2020, I served via email the foregoing RESPONDENT’S VERIFIED ANSWER TO STATE BAR OF NEVADA COMPLAINT to the following: Daniel T. Young, Esq Assistant Bar Counsel 3100 W. Charleston Bivd., Suite #100 Las Vegas, Nevada 89102 (702) 382 - 2200 Phone Email: dyoung@ nvbar.org YERIFIED ANSWER AND AFFIRMATIVE DEFENSES PAGE 10 OF 10