Tuesday, September 11, 2018
The Nevada Supreme Court has ordered a six-month and a day suspension for, to put it mildly, deposition misconduct.
He was representing himself as the defendant in a defamation lawsuit.
The misconduct involves Pengilly's behavior during a noticed plaintiffs deposition at his office. When questioning the deponent, Pengilly used vulgarities, called the deponent derogatory names, aggressively interrupted the deponent and opposing counsel, answered questions for the deponent, and repeatedly made inappropriate statements on the record. Pengilly went on to ask the deponent if he was "ready for it" while positioning his hand near his hip. The deponent briefly left the room, but when he returned Pengilly displayed a firearm he had holstered on his hip to the deponent and opposing counsel. As a result, the deposition was terminated and the underlying defamation litigation was put on hold pursuant to an order by the discovery commissioner. The discovery commissioner also sanctioned Pengilly for his conduct...
Having reviewed the record on appeal, we conclude that there is substantial evidence to support the panel's findings that Pengilly violated RPC 8.4(d) (prohibiting an attorney from engaging in conduct that is prejudicial to the administration of justice). Indeed, the deposition transcript, coupled with the testimony at the formal hearing, demonstrates that Pengilly displayed appalling behavior toward the deponent. Additionally, the record is clear, and Pengilly admits, that he displayed a firearm. Accordingly, we agree with the hearing panel that Pengilly committed the violation set forth above.
Pengilly argues that his conduct should be viewed under a negligence standard, but we agree with the panel that he acted knowingly as he was consciously aware of his conduct and knew his behavior was inappropriate. His conduct caused actual injury to the proceeding as the deposition concluded early and the discovery commissioner had to issue a protective order, causing the case to be delayed. Both the deponent and his attorney testified they were afraid Pengilly was going to shoot them, and their fears were documented: they immediately called the police, filed police reports the next day, filed for a TPO, and filed bar grievances. Further, there was the potential for serious injury to every one present—the deponent, his attorney, the court reporter, Pengilly's office staff, and even Pengilly himself--because a deadly weapon was involved.
The case is Discipline of James Pengilly, decided September 7.
13Action News reported on the conduct.
Pengilly is accused of pulling a gun on Mark Stuhmer during a deposition. Stuhmer and his brother Chris -- who's the founder and CEO of Christopher Homes -- are suing Pengilly for defamation in a case involving their C2 Lofts community homeowners association.
Depositions in that case are suspended until the criminal matter is resolved. When they resume, it'll be in the courthouse with a marshal present.