Controversial judge scolds lawyers despite own issues

Legal News Line Feb. 1, 2007, 12:49pm

Justice James W. Hardesty

CARSON CITY -- Nevada Supreme Court Justice James W. Hardesty seems to relish any opportunity to sniff out and punish "misconduct" by trial lawyers. This despite a number of examples of actions from the judge's own past that might reasonably be termed the same way. The latest attorney to face a Hardesty dressing-down was Las Vegas attorney Philip Emerson, who frequently represents insurance companies in civil lawsuits. The Nevada Supreme Court recently found Emerson guilty of misconduct for using closing arguments in lawsuits urging the jury to consider the damage to the legal system inflicted by "frivolous lawsuits." Hardesty wrote in the Supreme Court's unanimous opinion that Emerson's arguments were aimed at "perpetuating a misconception that most personal injury cases are unfounded and brought in bad faith by unscrupulous lawyers." By expressing such "personal opinions" to the jury, Hardesty concluded, "Emerson not only violated his ethical duties, he also prejudiced the jury against the plaintiffs." The lawyer was ordered to pay all legal fees and face a State Bar disciplinary hearing. Three years ago, Hardesty was making even harsher statements against another lawyer, Reno-based Kevin Mirch. In October 2003 Hardesty, then Washoe County Chief District Judge, dismissed a lawsuit brought by Mirch against a Reno attorney and law firm, calling it "legally frivolous," "scandalous and unsupported," and filed to create "additional chaos." He ruled that Mirch had violated conduct rules and referred the matter to the State Bar. Contemplating punishment, Hardesty wrote: "Perhaps monetary sanctions are not sufficient to deter improper conduct by this lawyer." That statement is ironic given Justice Hardesty's own checkered financial past. After graduating from the McGeorge School of Law at the University of the Pacific in Sacramento, Calif. in 1975 he entered private practice and became a prominent figure in Reno legal circles, specializing in real estate, media law and estate planning. Hardesty's best-known client during his 24 years of private practice was signature Las Vegas lounge act Wayne Newton. He also represented Reno's Atlantis Casino Resort and the Reno Gazette-Journal. In 1983, one of Hardesty's clients became sole trustee of his ex-wife's trust fund. Six years later the trust's beneficiaries sued Hardesty after he disclosed he did not know the whereabouts of the trust's assets. He argued that even if he had known, no law then existed compelling him to tell the beneficiaries. In 1994 a jury ruled against Hardesty and ordered him to repay the beneficiaries $335,270. The amount was covered by Hardesty's legal-malpractice insurance. Despite this setback, Hardesty easily won election in 1998 to the Washoe County District Court and was elected chief judge by his colleagues in 2001. He ran unopposed for a six-year term in 2002. A year later, in 2003, Hardesty began hearing the Mirch lawsuit, which concluded with an order that at one point considered barring Mirch from arguing cases before any of Washoe County's judges. Three months later, Hardesty declared his nomination for a vacant Supreme Court seat. While he was still contemplating Mirch's punishment, Mirch surprised Hardesty by declaring his candidacy for the same Supreme Court seat in May 2004. That forced Hardesty to recuse himself from the case against Mirch, which went back to District Court. In the primary election Hardesty, a Democrat in an officially non-partisan race, defeated his Republican opponent Cynthia Steel 43 percent to 21 percent. But that race was marred by accusations that Hardesty improperly filed campaign-finance reports. The Nevada Observer reported that Hardesty's Contributions and Expenses Reports (C&Es) from that race had been signed by his campaign treasurer. This, the paper reported, is a clear breach of a Nevada law stating that C&Es can be signed only by the candidate. Although no action was taken over that breach, Hardesty appeared to suffer from it. In the main election Steel made up considerable ground on him, losing 46 percent to 34 percent although Hardesty spent the second largest amount - $673,747 - of any Nevada judicial candidate that year. Such formidable fund-raising prowess may explain Hardesty's outspoken opposition to a recent judicial reform proposal. In a hearing before the Supreme Court last December on reforms aimed at cleaning up the Nevada judiciary of cronyism and corruption, Hardesty strongly opposed one particular measure. The proposal would bar judges from personally soliciting and receiving contributions, leaving the job to a campaign-finance committee. But Hardesty argued, on the contrary, that judges were often "in the best position to make the decision whether to accept or reject a campaign contribution." TIMELINE: Justice James W. Hardesty

  • 1975: Graduates from McGeorge School of Law and enters private practice in Reno, Nev.
  • 1983: Client becomes sole trustee of ex-wife's trust fund
  • 1989: Trust beneficiaries sue Hardesty over loss of fund's assets
  • 1994: Jury orders Hardesty to pay over $300,000 to beneficiaries
  • 1998: Wins election to Washoe County District Court
  • 2001: Elected Chief Justice of District Court
  • 2002: Runs unopposed for new 6-year term
  • January 2004: Nominates for vacant Supreme Court seat
  • May 2004: Recuses himself from case after defendant nominates for same seat
  • July 2004: Defeats Cynthia Steel (R) in Supreme Court primary election 43-21 percent
  • August 2004: Newspaper accuses Hardesty of filing illegal campaign returns
  • November 2004: Defeats Steel 46-34 percent in general SC election
  • December 2006: Opposes judicial reform to prevent justices from asking for or receiving campaign funds
  • January 2007: Authors controversial SC opinion punishing lawyer for statements about lawsuits

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