11 20 08 Doc 20 With Exhibits Mirch Post Hearing Brief 08-80074 69 Pages Total

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MIRCH LAW OFFICES
Kevin J. Mirch
CA SBN 106473
Marie C. Mirch
CA SBN 200833, NV SBN 6747
1133 Columbia Street, Suite 106
San Diego, CA 92101
(619) 501-6220
Respondent In Pro Per
Counsel for Respondent
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 08-80074
POST -HEARING BRIEF
Respondent, Kevin J. Mirch, in pro per and through his attorney, Marie Mirch, hereby
submits this supplemental brief in support of his position that the order of disbarment issued by the
State of Nevada violated his due process rights, and should not subject him to disbarment or
suspension from the Ninth Circuit Court of Appeals. This memorandum is submitted pursuant to
the Order of this Court dated October 14, 2008, requesting further briefing on a number of specific
issues.
ISSUE # 1. Legal authority that State Bar has a duty to investigate
The Nevada Supreme Court Rules (SCR) dictate the State Bars duty to investigate a
grievance:
Rule 104. State bar counsel.
1. State bar counsel shall:
(a) Investigate all matters involving possible attorney misconduct or incapacity
In re:
KEVIN JOHN MIRCH, Esq., Admitted to
the bar of the Ninth Circuit: February 16,
1988,
Respondent.
Case: 08-80074 11/20/2008 ID: 6714572 DktEntry: 20-1 Page: 1 of 13
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The Nevada State Bar should have its files regarding any investigation that was done on
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this grievance, information which Respondent is not privy to.
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called to bar counsels attention, whether by grievance or otherwise.
(b) Subject to Rule 105(1), dispose of all matters involving alleged misconduct by
dismissal of the allegation(s) or by the filing of a written complaint.
(c) Prosecute all proceedings under these rules before all forums in the name of the
State Bar of Nevada.
(d) File with the supreme court petitions with certified copies of proof of conviction
demonstrating that attorneys have been convicted of serious crimes, as defined in
Rule 111.
(e) Maintain permanent records of all matters investigated under these rules .
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SCR 104 2004 version. Supp Appendices at 2.
Under SCR 104(2), Bar counsel may meet with an attorney against whom a grievance has been
received to informally resolve a matter that does not involve the commission of a serious crime, as
defined in these rules. In Mr. Mirchs case, Bar Counsel Rob Bare did meet with Mr. Mirch and
his attorney, David Hamilton and stated that the grievance would be dropped because Mr. Bare did
not believe there was an ethical violation. This is the only investigation that Respondent is aware.
Nevertheless, the screening panel ultimately sent the matter to formal proceedings with the filing
of a complaint against Mr. Mirch. In the Complaint, State Bar simply adopted Judge Hardestys
Order without conducting an independent investigation of the facts or law which supported Mr.
Mirchs complaint against McDonald Carano.
Nevada Supreme Court Rule 105 also has an investigation requirement:
Rule 105. Procedure on receipt of complaint.
1. Investigation.
(a) Investigation and screening panel review. Investigations shall be initiated
and conducted by bar counsel or bar counsels staff or other investigative
personnel at bar counsels direction prior or pursuant to the opening of a
grievance file. At the conclusion of an investigation of a grievance file, bar
counsel shall recommend in writing dismissal with or without prejudice,
referral to diversion or mentoring pursuant to Rule 105.5, a letter of caution, a
private reprimand, or the filing of a written complaint for formal hearing. The
recommendation shall be promptly reviewed by a screening panel. A screening panel
shall consist of three members of the disciplinary board, appointed by the chair in
accordance with Rule 103(6). Two of the three reviewers must be members of the
bar. By majority vote they shall approve, reject, or modify the recommendation, or
continue the matter for review by another screening panel.
SCR 105, 2004 version Supp Appendices 3.
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The Nevada Supreme Court acknowledged this duty in In Re Drakulich, 111 Nev. 1556; 908
P.2d 709; (1995):
"In discharging its inherent authority to discipline the bar, this court has the
obligation to conduct an independent and de novo review of any record compiled in
a disciplinary proceeding in order to determine whether discipline in any particular
instance is warranted," see State Bar of Nevada v. Claiborne, 104 Nev. 115, 126,
756 P.2d 464, 471 (1988), or whether any charge meriting discipline has been
proven, see In re Miller, 87 Nev. 65, 68-69, 482 P.2d 326, 328 (1971). n4 Thus, this
court has held that "the ultimate responsibility for arriving at the truth in disciplinary
matters lies with this court." Claiborne, 104 Nev. at 126, 756 P.2d at 471.
In Re Drakulich, supra at 1566.
ISSUE # 2. Legal authority that Mr. Mirch had a right to a hearing at Nevada Supreme
Court
The legal authority supporting Mr. Mirchs contention that he had a right to a hearing before
the Nevada Supreme Court, or at least notification that the matter would be submitted on the briefs,
is supported by the Nevada Rules of Appellate Procedure and the Nevada Supreme Court Rules
pertaining to attorney discipline. First NRAP 31(c) addresses the consequences of failure to file a
brief, one of which is that the party will not be heard at oral argument. NRAP Rule 34 also
specifically relates to oral argument:
Rule 34. Oral Argument.
(a) Notice of argument; postponement. The clerk shall advise all parties of
the time and place at which oral argument will be heard, and whether argument will
be before the full court or a panel...
(f) The court may order a case submitted for decision on the briefs, without
oral argument.
NRAP 34 Supp Appendices at 8
While NRAP 34(f) permits the Supreme Court to order a case submitted on the briefs, when
that occurs, the Nevada Supreme Court issues an order to the parties. This did not happen, there
was no hearing, and there was no order that the case was submitted on the briefs. Rather, the Order
of Disbarment was issued on April 11, 2008, and Respondent learned on it through the local media.
With respect to attorney discipline, SCR 105 states that the matter will submitted on the
record without briefing or oral argument if the attorney does not file an opening brief. In this case
Respondent did file an opening brief and should have been afforded oral argument.
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ISSUE # 3. What occurred when Kevin Mirch had a stroke and State Bar would not allow
a continuance.
On April 1, 2006, Mr. Mirch suffered a stroke and was impaired. By that time, the Bar had
already violated SCR 105(c) regarding the time to conduct the disciplinary hearing, which requires
that the hearing be within 45 days of assignment and may be continued, but the additional time could
not exceed 90 days. SCR 105(c). Mr. Mirch did not agree to continue the hearing. The record
reflects that at one point Robert Hager, then counsel for Mr. Mirch, waived this time requirement
on behalf of Mr. Mirch. However, Mr. Mirch was never consulted, did not agree to the same, but
was subject to the ineffective assistance of counsel which prolonged this matter well beyond the
requisite period.
As to the issue of the State Bars indifference to Mr. Mirchs health, a formal hearing was
set for July, 2006, and Mr. Mirch was suffering cognitive and physical impairment attributable to
the stroke. Mr. Mirch did not have the option of petitioning the Bar for a continuance of the July
hearing. Under SCR 117(3), if the attorney subject to disciplinary proceedings seeks a continuance
for health reasons, the State Bar will put that attorney on disability status:
3. Transfer to inactive status prior to determination of competency. If, during the
course of a disciplinary proceeding, the respondent contends that he is suffering from
a disability de to mental or physical infirmity or illness, or because of addiction to
drugs or intoxicants, which makes it impossible for the respondent to adequately
defend himself, the court shall enter an order transferring the respondent to disability
inactive status until a determination is made of the respondents capacity to continue
to practice law in a proceeding instituted in accordance with the provisions of
subsection 2 above.
In light of of SCR 117(3), Mr. Mirch did not have the option to seek time to recover from his
stroke unless he agreed to be put on disability status and then subject to the Bars discretion for
reinstatement. Mr. Mirch did not seek a continuance of the July hearing, but ceased all of his
rehabilitation exercises to prepare for the hearing. However, the State Bar felt compelled to file
an emergency motion to put Mr. Mirch on disability status anyway, which was instantly rejected by
the Nevada Supreme Court. Supp Appendices 10. Order. The Nevada Supreme Court did grant
Mr. Mirch a 90 day stay to permit him time to recover. Even after the 90 day stay, Mr. Mirch was
not fully recovered, but was forced into the formal hearing in March, 2007, where he fell ill, was
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excused, and the disciplinary hearing continued in his absence. Transcript of Bar Hearing Volume
II Hearing at 351:14.
ISSUE #4. Legal authority that swearing in after testimony violates due process.
Under the rules of evidence, specifically Rule 603, the oath must be given to a witness
before testimony is given:
Rule 603. Oath or Affirmation. Before testifying every witness shall be required to
declare that the witness will testify truthfully, by oath or affirmation administered in a form
calculated to awaken the witness conscience and impress the witness mind with the duty
to do so (Amended Mar. 2, 1987, eff. Oct. 1, 1987.) [Emphasis Added]
This rule was not satisfied. Bruce Laxalt testified before the State Bar Panel without being properly
sworn in as required under Rule 603. Under Rule 603, before testifying every witness is required
to declare that he/she shall testify truthfully, by oath or affirmation administered in a special form
designed to awaken the importance of the oath. In this case, Mr. Laxalt was not sworn in until after
the testimony was given. Consequently, he could not have been aware of the importance of his
testimony before it was given. Since Section 603 was violated, Mr. Mirch was denied due process
essential to assure truthfulness of the testimony given. It is important to note, the Respondent moved
to strike Mr. Laxalts testimony which was denied. The Disciplinary Panels action was contrary
to the express wording of the rules of evidence, and there is no provision in the rules for a
retroactive oath taking.
Issue #5. Legal authority that Bar Panel cannot discredit the credibility of witnesses or
has to believe one witness.
This issue goes to the sufficiency of evidence prong of this Courts review under In Re
Kramer. The sufficiency of evidence was discussed by the Nevada Supreme Court in its opinion
which rejected the Nevada State Bars recommendation that attorney Victor Drakulich be suspended
from the practice of law in In Re Drakulich, 111 Nev 1556; 908 P.2d 709 :
In bar disciplinary matters, a higher degree of proof is required than in ordinary civil
proceedings. Clear and convincing evidence must support any findings of
misconduct. See In re Stuhff, 108 Nev. 629, 634-35,837 P.2d 853, 856 (1992) see
also SCR 105(e). This court has held that clear and convincing evidence must be
satisfactory proof that is: so strong and cogent as to satisfy the mind and conscience
of a common man, and so to convince him that he would venture to act upon that
conviction in matters of the highest concern and importance to his own interest. It
need not possess such a degree of force as to be irresistible, but there must be
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evidence of tangible facts from which a legitimate inference . . . may be drawn.
Gruber v. Baker, 20 Nev. 453, 477, 23 P. 858, 865 (1890), cited in Stuhff, 108 Nev.
at 635, 837 P.2d at 856. Clear and convincing evidence has been defined by other
courts as "evidence establishing every factual element to be highly probable," see
Butler v. Poulin, 500 A.2d 257, 260 n.5 (Me. 1985), or as "evidence [which] must be
so clear as to leave no substantial doubt," see In Re David C., 152 Cal. App. 3d 1189,
200 Cal. Rptr. 115, 127 (Ct. App. 1984).
Drakulich, supra at 1566-1567.
As in Drakulich, an independent and de novo review of the record of the disciplinary action
against Mr. Mirch simply does not reveal satisfactory, strong, or cogent proof of tangible facts
establishing a legitimate inference or a high probability that Mr. Mirch committed the violation of
the disciplinary rule found by the panel.
For example, the State Bars expert witness testified that he assumed all of the facts of Mr.
Mirchs Amended Complaint to be true. Vol II Transcript of Bar Hearing at 257:11-14. Mr.
Laxalt, another witness for the Bar testified that he had no knowledge of the underlying facts or
investigation done by Mr. Mirch prior to filing suit. The only witness who gave any testimony
whatsoever as to the facts of whether the threat was made to Mr. Mirch by Attorney Leigh Goddard,
was Leigh Goddard herself, who simply stated that she did not make the threat, and went through
each allegation of the Amended Complaint and denied it . Vol II Transcript of Bar Hearing at 320-
343 . However, Ms. Goddard also testified that she had never been sued by anyone else, which was
an outright lie because she was the defendant at least two other civil lawsuits.
The evidence in favor of Mr. Mirch factually, was Mr. Mirchs testimony of the events; Mr.
Wisemans testimony that he overheard Mr. Goddard tell her client to destroy the fee agreement;
evidence that Marilyn Bulloch (an acquaintance of Dr. Frank who had lived in Alabama) was told
by Dr. Frank himself that his attorney told him to destroy the fee agreement; testimony by David
Hamilton as to his percipient knowledge of Denise Reed informing Mr. Mirch that a female attorney
from McDonald Carano had called and instructed Ms Reed not to pay her bill to Mr. Mirch. The
State Bar presented no affirmative evidence refuting this testimony. In order to find as it did, the Bar
Panel had to completely discount and reject the testimony offered by Mr. Mirch, Mr. Wiseman, Mr.
and Hamilton, which it did. This was improper Re Drakulich, supra at 1569. Also in light of the
circumstances that Ms. Goddard had her own personal interest in failing to testify truthfully to her
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own violation of professional ethics, her testimony should not have been accorded the same high
degree of reliance that the Panel gave that testimony. Id.
Finally, in In Re Drakulich, the Nevada Supreme Court held:
In the case of In re Clarke, 46 Nev. 304, 307-08, 212 P. 1037, 1038 (1923), this court
held that [HN4] due to the highly penal nature of an order of disbarment and its
adverse affect on the future of the accused, this court would "not disbar on doubtful
evidence, or where there is substantial conflict in it." Additionally, in the case of In
re Winters, 40 Nev. 335, 163 P. 244 (1917), this court weighed the "circumstantial
evidence of the prosecution" against the "positive testimony" of the accused attorney.
This court also alluded to the former good reputation of the attorney in emphasizing
the attorney's positive testimony. Id. at 337, 163 P. at 245.
[*1570] Although the panel has recommended a 90-day suspension in the instant
case, and not disbarment, we nonetheless conclude that, under all the circumstances,
the evidence in this case that appellant paid Hall a referral fee is doubtful and does
not warrant such a drastic sanction. At the very least, the evidence relating to that
charge is in substantial conflict.
For example, we can perceive no clear and convincing evidence supporting the
panel's finding that appellant violated SCR 196(3), the rule which prohibits a lawyer
from giving anything of value to a person for recommending the lawyer's services.
As noted, the only direct evidence in this record supporting that finding of
misconduct is Stellmack's testimony that appellant paid Hall referral fees. As noted
above, however, Stellmack's testimony was contradicted by the testimony of Hall, by
the testimony of appellant, and by corroborating testimony of Rusk. Moreover, the
state bar does not dispute appellant's assertion that his record establishes that he is
an excellent, competent, and dedicated attorney who has never before been
disciplined. Thus, we are inclined to accord appellant's testimony far more weight
than did the panel. See Winters, 40 Nev. at 337, 163 P. at 245.
Additionally, in light of appellant's and Hall's positive testimony regarding the nature
and purpose of the payments that were made to Hall, we harbor substantial doubts
respecting the panel's finding that appellant violated SCR 197, the rule that prohibits
a lawyer's solicitation of clients when a significant motive for the solicitation is the
"lawyer's pecuniary gain." The record before us suggests that, to the contrary,
appellant's motives were far more consistent with a desire to assist Hall, a longtime
friend of appellant's family who became "a different sort of person" after he suffered
neurological damage as a young man in an accident and who was experiencing
financial difficulties.
In Re Drakulich at 1569-1570.

In the present case, the State Bar could not recommend disbarment on doubtful evidence, and
should have been held to the higher evidentiary standard in favor of Mr. Mirch. They failed. Rather
than considering all of the evidence, the Panel and the Nevada Supreme Court knew the desired end-
result and discounted the testimony of all of Respondents witnesses in order to get there (with the
exception of Mr. Geoff Giles, the Bankruptcy Attorney who testified as an expert witness whom the
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Bar offered absolutely no evidence to refute).
ISSUE # 6. Judge Kosach issue
In the disciplinary matter, the State Bar presented and the Panel considered the fact Judge
Kosach has a standing order that he will not sit on any case in which Kevin Mirch is involved.
Supp Appendices 12, Order. This was offered as evidence that Mr. Mirchs practice of law was so
egregious that a district court judge refused to have him in his court. The fact is that Judge Kosach
recused himself after Mr. Mirch challenged the propriety of the Judges conduct and filed a motion
for recusal against Judge Kosach. Specifically, in a civil case entitled Brignand v. Snyder, case no
CV97-07884 Second Judicial District Court of the State of Nevada County of Washoe. Judge
Kosach offered a favorable ruling in favor of the plaintiff, John Brignand in exchange for collectors
baseball cards. Supp Appendices 14, Affidavit of John Brignand. Judge Kosach was assigned to
another case in which Mr. Mirch represented the plaintiff, Diamond Motors v. Wells Fargo, case
number CV00-03939, Second Judicial District Court of the State of Nevada County of Washoe. Mr.
Mirch filed a motion for recusal of Judge Kosach, who then made derogatory statements against Mr.
Mirch from the bench ( a transcript which Judge Kosach has prevented Mr. Mirch from obtaining).
Mr. Mirch filed an affidavit in support of his motion for recusal addressing the baseball card issue
in Brignand. Supp Appendices 16. Judge Kosach responded with is order of a standing recusal
regarding Mr. Mirch. The misconduct was not Mr. Mirchs as the bar panel assumed, but rather a
member of the bench in Washoe County.
ISSUE # 7. Rob Bare could not call as witness.
Prior to the disciplinary hearing, Mr. Mirch subpoenaed Rob Bare and Justice Hardesty to
appear as witnesses. The State Bar moved to quash the subpoenas, which the panel granted. Mr.
Bare had been bar counsel at the time the Hardesty order was referred, and was responsible for
investigation of the allegations. At the time of the hearing, Rob Bare was no longer bar counsel, but
a Municipal Judge. The Panel quashed the subpoenas. Vol II Transcript of Bar Hearing at
291:299.
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ISSUE # 8. Support for the proposition that KM had a duty to report the fact that there
were assets that came in to the BK Court.
Mr. Geoff Giles, Esq. is a bankruptcy attorney who testified as to Mr. Mirchs duty to report
the assets to the bankruptcy court, especially in light of Judge Riblets Order in the Frank
Bankruptcy. Transcript of Bar Hearing, Vol III at 501-538.
ISSUE #9. Evidence that David Hamilton was a Bar board member or that he bar had used
him as an expert ever.
The Bar Panel totally discredited Mr. Hamilton as an expert witness on the subject of legal
ethics, despite the fact that Mr. Hamilton had served for many years on the State Bar Disciplinary
Panel himself. This Court asked for evidence to support this fact. Mr. Hamilton has prepared and
submits a Declaration which establishes his credentials as an expert witness in this area of law,
which is include in the supplemental excerpt filed with this brief. See Supp Appendices at 53, Decl
of David Hamilton.
ISSUE # 10. Submit the appellate decision on the appeal of Hardestys order, petition for
rehearing , and denial of petition.
This Court has also requested the Nevada Supreme Courts decision in the Mirch v.
McDonald case. The opinion is submitted in the supplemental appendices at page 19. Further,
Respondent filed a Petition for Rehearing included at Supp Appendices at 31, and the Supreme
Courts denial of the Petition. Supp Appendices at 44.
ISSUE #11. Brief that their notice of witnesses was insufficient.
SCR 105 imposes the duty on bar counsel to disclose the witnesses and evidence to be used
against the attorney in a formal disciplinary hearing:
105(c) Time to conduct hearing; notice of hearing; discovery of evidence
against attorney. The hearing panel shall conduct a hearing within 45 days of
assignment and give the attorney at least 30 days written notice of its time and place.
The notice shall be served in the same manner as the complaint, and shall inform the
attorney that he or she is entitled to be represented by counsel, to cross examine
witnesses, and to present evidence. This notice shall be accompanied by a summary
prepared by bar counsel of the evidence against the attorney, and the names of
wetness bar counsel intends to call for other than impeachment, together with a brief
statement of the facts to which each shall testify, all of which may be inspected up
to 3 days before the hearing. Witnesses of evidence, other than for impeachment,
which become known to bar counsel thereafter, and which bar counsel intends to use
at the hearing, shall be promptly disclosed to the attorney. For good cause shown,
the chair may allow additional time, not to exceed 90 days, to conduct the hearing.
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Supp Appendices at 2, copy of Nevada SCR 105.
In Mr. Mirchs case, the State Bar Complaint was filed on June 15, 2004. The hearing,
including any continuance for good cause had to occur no later than 90 days later, or no later than
September 13, 2004. The Notice of Formal Hearing was served on August 25, 2005, 436 days later.
In fact, the hearing was held over two and a half years later, in February, 2007. This not only
violated SCR 105, it greatly prejudiced Mr. Mirch because by the time of the formal hearing, Mr.
Mirch was impaired because of a stroke, and one witness, Marilyn Bulloch who was going to come
to Reno to testify, had died. Mr. Mirch expressed his position that the hearing was unfair in
response to a question from a panel member during the hearing.
The Notice of Formal Hearing identified four witnesses:
1. Dennis Kennedy, Esq. the expert witness whom was disclosed to corroborate the
findings of fact and conclusions of law made by Judge James Hardesty in the Order filed October
9, 2003 which is the underlying basis of the State Bars Complaint in this matter and which is
incorporated by reference in the State Bars Complaint. Supp Appendices 47. Mr. Kennedys in
his opinion stated that he who accepted all facts of the Amended Complaint as true, and in fact gave
no testimony as to the factual allegations of the Amended Complaint.
2. Bruce, Laxalt, Esq. legal counsel for the McDonald defendants whose testimony is
identified as to testify concerning legal action taken as counsel for defendants and the procedural
history of the underlying matter and the related federal litigation known as Kevin Mirch v. Judy
Frank, ..... He will also testify regarding the effect Respondents action had on his clients, the law
firm of McDonald, Carano & Wilson and Leigh Goddard, Esq. Supp Appendices 47. Again Mr.
Laxalt was not expected to, and offered no testimony regarding the factual allegations contained in
the First Amended Complaint. In fact, Mr. Laxalt testified that he knew nothing of the underlying
facts or Mr. Mirchs investigation prior to filing the complaint. _____
3. Leigh Goddard, Esq. was disclosed to testify regarding the effect Respondents
conduct had upon her professionally and upon the underlying matter as well as related federal
litigation in the matter known as Kevin Mirch v. Judy Frank, ..... Supp Appendices 48. Notably
absent from this disclosure is anything pertaining to the factual allegations of the First Amended
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Complaint, all of which were included in her testimony at the disciplinary hearing.
4. Custodian of records of the bar.
All of the notice of witnesses and evidence supported that the Bar was not going to contest
the underlying facts of the Amended Complaint, but rather the law. Mr. Mirch proceeded on this
basis and introduced statutory and case law supporting his position. However, the Findings of Fact
and Conclusions of Law recommending disbarment find each factual allegation of the Amended
Complaint to be false. This is absent any notice to Respondent that the facts were at issue and in the
absence of any evidence to refute the evidence presented by Mr. Mirch in the testimony of Mr.
Mirch, Mr. Wiseman and Mr. Hamilton, as well as evidentiary support for the same. There is
nothing in the witness disclosure or even the Complaint itself that gave Mr. Mirch notice that the Bar
was disputing the underlying facts of the Mirch v. McDonald suit.
The Nevada Supreme Court has recognized the due process requirements of bar disciplinary
matters. For instance, in In Re Discipline of Laub, 119 Nev. ___, ___ P.3d ___ (Jan. 9, 2002) The
Nevada Supreme Court disregarded violations that the disciplinary panel had found, but were not
clearly identified in the complaint, stating that the complaint itself must be specific as to notify the
attorney of the charges against him:
Laub argues that he has been denied due process because the complaint did not
assert any charges based on a possible products liability claim, and so he was not
notified of any such charges, The state bar weakly argues that since it attached the
cost and disbursement statement to the complaint, and the statement mentioned a
possible products liability claim because of the funds being held back for costs, Laub
was on notice that his conduct concerning the products liability claim was subject to
review. The state bar also argues that Nevada is a notice-pleading jurisdiction, and
that its complaint was sufficient under this standard. In reply, Laub argues that the
rules of civil procedure do not apply to bar complaints; rather, SCR 105(2) governs.
This court recently reiterated in In re Discipline of Schaefer 117 Nev. , 25 P.3d
191, as modified by 31 P.3d 365 (2001) that due process requirements must be met
in bar proceedings, and that an attorney charged with misconduct must be notified
of the charges against him. Also, SCR 106(2) provides that "the complaint shall be
sufficiently clear and specific to inform the respondent of the charges against him or
her," Here, the complaint makes no mention whatsoever of the products liability
claim, and the record reflects that the state bar never sought to amend the complaint
to include violations based on this claim. We conclude that Laub was not adequately
notified of any charge against him based upon the Sartains' possible products
liability claim, and that these violations must be disregarded.

In Re Discipline of Laub, supra.
Similarly, due process and SCR 105(c) require full and fair disclosure of all the facts
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pertaining to a witness' testimony. This was violated when Ms. Goddard testified as to facts relating
to the underlying Amended Complaint, when she was only going to testify as to the effect the suit
had on her professionally on the federal matter. See Supp Appendices, 48, compare to Hearing
Testimony Volume II 320-343.
ISSUE # 12. Other cases that the used against KM in Bar hearing.
During the bar hearing, other cases in which Mr. Mirch was involved were used as evidence
that Mr. Mirch had violated SCR 107. This violated evidentiary rules regarding character evidence,
N.R.S. 48.045, and included cases that did not exist at the time that Mr. Mirch filed the complaint
against McDonald Carano, and the alleged improper conduct was subsequent to the underlying
complaint. Those cases we:
Mirch v. McDonald Carano (federal case) Case No CV-N-01-0443-ECR U.S. Dist Court
Nevada. Mr. Mirch filed a third party complaint for indemnification and contribution against his
successor attorneys (McDonald Carano) in the USI v. Frank case in the event he was held liable for
legal malpractice for acts of the other attorneys.
Mirch v. State Bar Case No 3:05-CV-00641-RLH U.S. Dist Court Nevada. Mr. Mirch sued
the Nevada State Bar and certain individuals seeking damages and injunctive relief ro due process
violations related to the disciplinary proceeding. That case was dismissed and is currently on appeal
at the Ninth Circuit docket no. 07-15143, 07-16046.
IGCA bankruptcy case no. BK-04-21118-LBR U.S. Bankruptcy Court Dist Nevada. The
panel received evidence of a sanction that was imposed against Mr. and Mrs. Mirch in the
bankruptcy case of IGCA, case no. on DATE for the Mirches proceeding procedurally with a civil
suit in the Second Judicial District Court to preserve the asset of the bankruptcy estate .
Bruce Laxalt cited a number of cases in a footnote in his motion to dismiss, which when
asked, could not identify any wherein Mr. Mirch had sued opposing counsel. Transcript of Bar
Hearing, Vol I at 101-109:19, testimony of Bruce Laxalt.
State of Nevada v. Mirch case number CR07-1197 is a case brought by the State of Nevada
criminally charging Mr. Mirch with unfounded allegations, but nevertheless were known to member
of the panel and used against Mr. Mirch.
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Respectfully submitted this 20 day of November, 2008.
th
MIRCH LAW OFFICES
San Diego, CA 92101
BY__/s/ Marie Mirch_______
Marie Mirch
Counsel for Respondent

Mirch Law Offices
Kevin J. Mirch
CA SBN 106973
Marie C. Mirch
CA SBN 20083, NV SBN 6747
San Diego, CA 92101
(619) 501-6220
(619) 501-6980 Fax
Attorneys for Respondent
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE: ) No. 08-80074
)
Kevin John Mirch, Esq. ) SUPPLEMENTAL APPENDICES
Admitted to the Bar )
of the Ninth Circuit )
)
Respondent ) ____________________ )

11 20 08 Doc 20 With Exhibits Mirch Post Hearing Brief 08-80074 69 Pages Total

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