1 DECISION

2 The Motion seeks to (1) disqualify Bar Counsel, Daniel Hooge, from acting as counsel in
3 the Consolidated Cases, and (2) to impute a disqualifying basis to all counsel employed by the

4 Office of Bar Counsel sufficient to disqualify them from acting as counsel in the Consolidated

5 Cases, with outside counsel appointed instead to prosecute these Consolidated Cases.

6 A. No Basis To Disqualify Mr. Hooge

7 Mr. Hooge is State Bar Counsel for the State Bar of Nevada and, as such, has certain
8 prescribed duties to personally oversee and/or to delegate to staff or Assistant Bar Counsel serving

9 with him. See SCR 104. The underlying facts regarding Mr. Hooge’s prior service as the elected

10 District Attorney for Lincoln County and Respondent Whipple’s role as opposing counsel in

11 various criminal cases, including one high-profile case involving the high school football coach, are

12 set forth in the briefs and largely undisputed.

13 Upon initiation of what became the first Consolidated Cases, Mr. Hooge, in his capacity as
14 Bar Counsel, preliminarily reviewed the investigation and initially evaluated the potential

15 allegations. Thereafter, the Consolidated Cases were assigned to Assistant Bar Counsel Daniel

16 Young who more fully evaluated the allegations and prepared the recommendations to be

17 considered by a Screening Panel. The first three Consolidated Cases (OBC19-0665, OBC19-0969,

18 and OBC19-1163) were presented to a Screening Panel by Mr. Young and the Screening Panel

19 voted the matters should proceed to a formal hearing. Mr. Hooge did not participate in or even
20 attend that Screening Panel Hearing. The fourth Consolidated Case (OBC20-0352) was taken to a

21 separate Screening Panel. As with the first three Consolidated Cases, Mr. Young evaluated the

22 allegations and prepared the recommendation to be considered by the Screening Panel. Mr. Young

23 presented the fourth Consolidated Case to the Screening Panel, which voted the matter should

24 proceed to a formal hearing. Mr. Hooge attended this Screening Panel Hearing but it is unclear

25 whether he participated in any way.

26 Mr. Young prepared the Complaint in these Consolidated Cases. Mr. Hooge, who in his
27 capacity as Bar Counsel reviews and approves all Complaints filed by the Office of Bar Counsel,

28

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 1 reviewed and approved the Complaint for these Consolidated Cases before it was filed on August

2 12, 2020.

3 As noted above, Respondent Whipple filed his Motion on October 7, 2020.

4 It is important to here note what the Motion does and does not allege. The Motion alleges
5 that, due to prior dealings between Respondent Whipple and Mr. Hooge, in their respective

6 opposing counsel roles while Mr. Hooge served as the District Attorney for Lincoln County, Mr.

7 Hooge has (1) a disqualifying bias against and animus toward Respondent Whipple, and (2) a

8 disqualifying personal interest in these Consolidated Cases. Respondent Whipple also suggests Mr.

9 Hooge must be disqualified to avoid the appearance of unfairness (i.e., bias, partiality, or

10 impropriety), and that failing to disqualify Mr. Hooge would violate Respondent Whipple’s federal

11 and state due process rights. On the other hand, the Motion does not allege that Mr. Hooge

12 possesses any confidential, privileged information that could be used against Respondent Whipple

13 in these Consolidated Cases. Indeed, there is no evidence (or even allegation) that an attorney-

14 client relationship ever existed between Respondent Whipple and Mr. Hooge. To the contrary, the

15 only alleged relationship is as opposing counsel in other cases. 1

16 Based on the allegations in the Motion and on the same day the Motion was filed,
17 Complainant State Bar implemented formal procedures to screen Mr. Hooge from the Consolidated

18 Cases. As a result of those screening procedures, Mr. Hooge is not updated about and does not

19 participate in any discussions or decisions regarding the prosecution of these Consolidated

20 Cases. Mr. Young and Assistant Bar Counsel Kait Flocchini are solely responsible for the

21 prosecution of these Consolidated Cases. The screening procedures with Mr. Hooge have remained

22 in place uninterrupted since October 7, 2020.

23 Based on the foregoing, a formal disqualification of Mr. Hooge is unnecessary, i.e., there is
24 no need to disqualify someone who is already formally screened and has no involvement. Even so,

25 Mr. Hooge shall continue to be screened and shall have no involvement in these Consolidated

26

27
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The Chair is not unmindful that NRPC 1.0A(d) provides, in part, that “the purpose of the Rules can
be subverted when they are invoked by opposing parties as procedural weapons.” The Chair does not find
that Respondent Whipple is attempting to use his Motion as a “procedural weapon” but this Rule
28 emphasizes the caution that should be taken when resolving a motion to disqualify brought, not by a former
client, but by the opposing party or opposing counsel.
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 1 Cases. Because these Consolidated Cases were evaluated by others, were presented to two

2 Screening Panel Hearings by others, the decisions to proceed to formal hearing were made by

3 others, the Complaint was prepared by others, and these Consolidated Cases have been prosecuted

4 by others, the Chair finds that the existence of any bias or animus by Mr. Hooge against

5 Respondent Whipple did not impact these Consolidated Cases in any material way, if at all. That

6 Mr. Hooge had some oversight role in these Consolidated Cases necessitated by his rights and

7 duties as Bar Counsel does not mean he altered the trajectory of these cases in any way, to say

8 nothing of an improper way, unfavorable or unfair to Respondent Whipple and his due process

9 rights. And, the screening procedures voluntarily employed by Complainant State Bar, which are

10 ordered to continue, ensure the alleged bias and animus will have no impact going forward. To be

11 clear, the Chair makes no finding regarding the alleged bias or animus by Mr. Hooge against

12 Respondent Whipple; instead, the Chair finds that even if that bias or animus exists/existed, it does

13 not require more than has already occurred and is ordered here to continue, i.e., that Mr. Hooge

14 shall be screened from and have no involvement in prosecuting these Consolidated Cases.

15 Based on the foregoing, it is unnecessary to address the various factual allegations asserted
16 in the Motion and Reply regarding, for example, a letter to the editor, dismissal of the 225-count

17 felony indictment and comments by the judge regarding Mr. Hooge’s handling of the case, a filed

18 grievance against Mr. Hooge by Judge D. Lanny Waite, 2 etc. Further, the Chair is mindful that Bar

19 Counsel does not decide the Consolidated Cases. Bar Counsel’s role (or, in this case, Assistant Bar
20 Counsel’s role) is to present relevant evidence and attempt to satisfy a clear and convincing

21 standard; however, the panel members will decide whether that high burden has been satisfied once

22 the evidence is presented. Respondent is represented by former Bar Counsel (David Clark) who is

23 2
Upon reading the Motion, the undersigned learned of Judge D. Lanny Waite’s involvement and his
possible role as a witness in these Consolidated Cases. Although neither Claimant nor Respondent inquired
24 about the relationship between Judge Waite and the undersigned, the undersigned discloses that Judge
Waite is a distant relative but the undersigned is unable to identify, without researching genealogy, the
25 exact nature of that familial relationship (we are not as close as cousins in the first degree). To the best of
the undersigned’s recollection, the most recent contact between Judge Waite and the undersigned was
26 several years ago when the Clerk’s Office in the old state courthouse had drop-folders for each attorney.
On rare occasions, the undersigned would receive documents in my drop-folder that should have gone to D.
27 Lanny Waite. Although speculation on my part, I assume the errors in delivery occurred because our last
names are the same and our first names begin with “D.” Accordingly, on those rare occasions, I would
contact Judge Waite to advise I had a document intended for him. The undersigned is confident that Judge
28 Waite’s involvement in these Consolidated Cases for or against a particular side will have no improper
impact on the undersigned here (i.e., no effect beyond the weight given to his admissible testimony).
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 1 very competent and experienced to represent Respondent in these Consolidated Cases and to

2 ensure, through examination, cross-examination, objections, argument, etc., that Respondent

3 receives a fair disciplinary hearing. Indeed, the Chair notes that Respondent Whipple signed the

4 Motion and Reply, which were well researched and supported. The strength and thoroughness of

5 those briefs, even if they did not prevail here, indicate Respondent Whipple is very competent to

6 defend and protect his interests in these Consolidated Cases, which conclusion is only enhanced by

7 his retention of Mr. Clark as co-counsel. The Chair has no doubt that Respondent Whipple will

8 receive a fair disciplinary hearing with the panel deciding the Consolidated Cases, not Bar Counsel

9 or Assistant Bar Counsel.

10 B. No Basis to Disqualify All Counsel Employed by the Office of Bar Counsel

11 In the absence of a factual finding or legal conclusion requiring the formal disqualification of
12 Mr. Hooge, no basis exists to disqualify any other counsel employed by the State Bar of Nevada,

13 Office of Bar Counsel. However, for the sake of clarity and possible challenge, the Chair rules that

14 even if a basis exists to formally disqualify Mr. Hooge, which basis is not resolved by his current

15 and continued screening from involvement in these Consolidated Cases, the Chair would still

16 exercise his discretion to not disqualify any other counsel employed by the State Bar of Nevada.

17 Nevada Rule of Professional Conduct 1.11 and the case of State v. Eighth Judicial District
18 Court, 130 Nev. 158, 321 P.3d 882 (2014) control the resolution of this issue. In State v. Eighth

19 Judicial District Court, the Nevada Supreme Court relied on Official Comment 2 to Rule 1.11 of
20 the Model Rules of Professional Conduct, stating that Rule 1.11 “does not impute the conflicts of a

21 lawyer currently serving as an officer or employee of the government to other associated

22 government officers or employees, although ordinarily it will be prudent to screen such lawyers.”

23 130 Nev. at 161-62, 321 P.3d at 884 (emphasis added). The Court further declared, “Generally one

24 attorney’s conflict of interest under [NRPC] 1.9 is imputed to all other attorneys in the disqualified

25 attorney’s law firm. . . . But that general rule does not apply to lawyers working in government

26 offices.” Id., 130 Nev. at 161, 321 P.3d. at 884. “[A]ppearance of impropriety is [not] the

27 appropriate standard for determining whether an individual prosecutor’s conflict should be imputed

28 to an entire office.” Id., 130 Nev. at 164, 321 P.3d at 886. Further, “there are several policy

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 1 arguments in favor of a test that limits the disqualification of an entire [prosecutorial] office: there

2 is a large cost . . . in paying for a special prosecutor to prosecute the case; an attorney is presumed

3 to perform his ethical duties, . . . and [decision makers] should not unnecessarily interfere with the

4 performance of a prosecutor’s duties.” Id., 130 Nev. at 164, 321 P.3d at 886 (internal citations

5 omitted).

6 Even so, the Court noted “[t]here is . . . a broader concern in criminal cases that cannot be
7 overlooked: the defendant’s right to a fair trial. . . . Based on that concern . . . an individual

8 prosecutor’s conflict of interest may be imputed to the prosecutor’s entire office in extreme cases.”

9 Id., 130 Nev. at 164-65, 321 P.3d at 886 (emphasis added). Disciplinary proceedings are of a

10 “quasi-criminal nature.” See In re. Ruffalo, 390 U.S. 544, 550 (1968). This, however, is not an

11 “extreme case.”

12 In State v. Eighth Judicial District Court, District Attorney Steven Wolfson, while still in
13 private practice, had discussions with an attorney in his former firm regarding a client that DA

14 Wolfson was now charged to prosecute. More specifically, DA Wolfson had frequent discussions,

15 while a private attorney, about the very case he was now prosecuting. Wolfson even spoke directly

16 with the then-client he was now prosecuting. Although the district court disqualified the entire

17 DA’s office, the Nevada Supreme Court vacated that order, i.e., finding such was not an “extreme

18 case.” The Chair does not believe the current allegations present any more of a threat to a fair

19 “trial” here than presented in State v. Eighth Judicial District Court where other members of the
20 DA’s office were not disqualified.

21 Based on the foregoing, even if a disqualifying conflict existed with Mr. Hooge, the Chair
22 finds and concludes that the conflict would not require the entire State Bar’s office to be

23 disqualified from prosecuting these Consolidated Cases in order to ensure Respondent Whipple

24 receives a fair disciplinary hearing. Id., 130 Nev. at 164-65, 321 P.3d at 886. Again, this is not an

25 “extreme case” requiring such an extreme measure.

26 The screening procedures in place are sufficient to ensure that Mr. Hooge has no
27 involvement in the prosecution.

28 / / / /

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 1 CONCLUSION
2 The Chair appreciates the quality of briefing and the parties’ timely email responses to
3 questions the Chair posed. Upon consideration of all relevant facts and factors, and based on the

4 applicable rules and other law, there is no non-punitive reason to formally disqualify Mr. Hooge

5 given he is already screened from involvement in these Consolidated Cases. Nevertheless, in an

6 abundance of caution, the Chair orders that Mr. Hooge shall continue to be screened and shall have

7 no involvement or input in these Consolidated Cases. 3 Further, there is no basis to disqualify all

8 counsel employed by the State Bar of Nevada, even if a basis existed to formally disqualify Mr.

9 Hooge. All arguments raised in the briefs and not specifically addressed herein are rejected.

10 IT IS SO ORDERED. 4
11 DATED this 31st day of October, 2020.
12

13 By: /s/ Dan R. Waite

Dan R. Waite
14 CHAIR- Formal Hearing Panel
Southern Nevada Disciplinary Board
15
Lewis Roca Rothgerber Christie LLP
16 3993 Howard Hughes Pkwy., Ste. 600
Las Vegas, Nevada 89169
17 Tel: 702.949-8200
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26 3
To the extent any duty is vested in Mr. Hooge as Bar Counsel that cannot be discharged by
27 delegation to staff or Assistant Bar Counsel as relates to these Consolidated Cases, the State Bar should
seek a stipulation from Respondent Whipple and, if an acceptable stipulation cannot be obtained, the matter
can be presented to the Chair for resolution on an expedited and summary basis.
28 4
In some of the briefs and responses to the Chair’s email questions, the parties delved into the merits
of the Consolidated Cases. Such are for another day and played no role in this Decision.
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 CERTIFICATE OF SERVICE BY MAIL

The undersigned hereby certifies a true and correct copy of the foregoing

DECISION REGARDING RESPONDENT’S MOTION TO DISQUALIFY BAR

COUNSEL was served via email to:

1. Dan Waite, Esq. (Chair): DWaite@lrrc.com

2. David A. Clark, Esq. (Counsel for Respondent): DClark@lipsonneilson.com

3. Bret Whipple, Esq. (Respondent-Co-Counsel): Admin@Justice-Law-Center.com

4. Daniel T. Young, Esq. (Assistant Bar Counsel): daniely@nvbar.org

5. Kait Flocchini, Esq. (Assistant Bar Counsel): kaitf@nvbar.org

DATED this 2nd day of November, 2020.

__________________________
Kristi Faust, an employee of
the State Bar of Nevada.