No. 68901 

FILED 

MAY 1 0 2016 

TRACIE K. UNDEMAN 

CLERI:SpF,SpPREME COURT 

BY 

DEPUTY CLERK 

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- Pa ss q 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

PRACTICE MANAGEMENT 

SOLUTIONS, LLC, A NEVADA 

LIMITED LIABILITY COMPANY; 

GUADALUPE MEDICAL 

CENTER/OKAMOTO, M.D., P.C., A 

NEVADA PROFESSIONAL 

CORPORATION; CECILIA STRIEBER, 

AN INDIVIDUAL; FREDDY ALDANA, 

SR., AN INDIVIDUAL; AND RAFAEL 

OKANIOTO, M.D., AN INDIVIDUAL, 

Petitioners, 

vs. 

THE EIGHTH JUDICIAL DISTRICT 

COURT OF THE STATE OF NEVADA, 

IN AND FOR THE COUNTY OF 

CLARK; AND THE HONORABLE 

DOUGLAS SMITH, DISTRICT JUDGE, 

Respondents, 

and 

GUADALUPE MEDICAL 

CENTER/ALVARADO, M.D., P.C., A 

NEVADA PROFESSIONAL 

CORPORATION; AND ISRAEL 

ALVARADO, M.D., AN INDIVIDUAL, 

Real Parties in Interest. 

ORDER GRANTING PETITION FOR WRIT OF MANDAMUS 

This original petition for a writ of mandamus or prohibition 

challenges a district court order disqualifying attorney Richard Raskin 

and his firm, Gibbs, Giden, Locher, Turner, Senet & Wittbrodt, LLP, from 

acting as petitioners' counsel. 

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Facts 

After working at the Guadalupe Medical Center for several 

years, real party in interest Dr. Israel Alvarado became the sole owner of 

the Guadalupe Medical Center. He was also an officer and a director, and 

the company's name was changed to Guadalupe Medical Center/Alvarado. 

Guadalupe Medical Center/Alvarado was managed by petitioner Cecilia 

Strieber and others through their company Practice Management 

Solutions, LLC (PMS). Strieber and Alvarado later entered into an option 

agreement, drafted by Haskin, permitting Strieber to purchase all of 

Alvarado's shares in Guadalupe Medical Center/Alvarado. When drafting 

the option agreement and other agreements between the parties, Haskin 

represented Guadalupe Medical Center/Alvarado. 

Strieber assigned the option agreement to petitioner Dr. 

Rafael Okamoto, who exercised it, thus acquiring all of the stock of 

Guadalupe Medical Center/Alvarado. New officers and directors were 

elected and appointed, and the company was renamed Guadalupe Medical 

Center/Okamoto. Alvarado and Guadalupe Medical Center/Alvarado then 

sued, asserting, among other things, that Alvarado was fraudulently 

induced to enter into the option agreement. 

Petitioners retained Haskin and Gibbs Giden to defend them, 

and Alvarado moved to disqualify under RPC 1.6, because Haskin and 

Gibbs Giden allegedly possess some of Guadalupe Medical 

Center/Alvarado's and/or Alvarado's confidential information; under RPC 

1.7, 1.9, and 1.10, because Haskin and Gibbs Giden previously represented 

Guadalupe Medical Center/Alvarado, giving rise to a conflict of interest; 

and under RPC 3.7(a), because Haskin and other persons at Gibbs Giden 

may be witnesses in this matter. The district court disqualified Haskin 

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and Gibbs Giden on these bases, and this writ petition followed. Real 

parties in interest have filed an answer, and petitioners have filed a reply. 

Discussion 

A writ of mandamus is available to compel the performance of 

an act that the law requires as a duty resulting from an office, trust, or 

station or to control an arbitrary or capricious exercise of discretion. NRS 

34.160; Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 

197, 179 P.3d 556, 558 (2008). This court has the discretion to determine 

whether a writ petition will be considered. Smith v. Eighth Judicial Dist. 

Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). "We have previously 

indicated that a petition for mandamus relief generally is an appropriate 

means to challenge district court orders regarding attorney 

disqualification" because there exists no right to appeal from a 

disqualification order. Liapis v. Second Judicial Dist. Court, 128 Nev. 

414, 418, 282 P.3d 733, 736 (2012). Therefore, we exercise our discretion 

to consider this writ petition. 

Initially, the district court's order is unclear regarding which 

standard the court applied. While the order correctly noted that the 

appearance of impropriety standard is no longer applicable to attorney 

disqualification issues and this matter was analyzed for actual violations 

of the rules of professional conduct (RPC), in the end the district court 

found that Haskin's and Gibbs Giden's disqualification was warranted "to 

avoid the appearance of impropriety." An appearance of impropriety is not 

the correct standard. Id. at 419, 282 P.3d at 737 ("[A]n appearance of 

impropriety by itself does not support a lawyer's disqualification." 

(quotation marks omitted)). Rather, an attorney may be disqualified only 

if an actual RPC violation exists. See id. It is unclear from the record, 

however, whether, in the unique circumstances of this case, any conflict or 

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other violations of the RPC warrant Haskin's and Gibbs Giden's 

disqualification. 

Prior to analyzing the applicable rules, the district court must first 

examine whether Alvarado has standing to act for Guadalupe 

Medical Center /Alvarado and assert RPC violations on its behalf 

Before considering whether an attorney should be disqualified, 

a court must address whether a party has standing to seek 

disqualification. Id. at 420, 282 P.3d at 737. Standing is generally 

founded on a current or former attorney-client relationship, and "[t]he 

party seeking to disqualify bears the burden of establishing that [he] has 

standing to do so." Id. 

Alvarado lacks standing because he has been divested of his 

shares in Guadalupe Medical Center/Alvarado 

The district court based disqualification on the attorney-client 

relationship between Guadalupe Medical Center/Alvarado and Haskin and 

Gibbs Giden, assuming Alvarado's authority to act for Guadalupe Medical 

Center/Alvarado.' But the amended complaint alleged, and the district 

court found, that the option agreement effected a share transfer from 

Alvarado to Okamoto. 2Thus, Alvarado has been divested of his ownership 

of Guadalupe Medical Center/Alvarado and is a former, not a current, 

shareholder, officer and director. As a result, Alvarado lacks authority to 

It is undisputed that Haskin and Gibbs Giden did not render 

services to Alvarado in his individual capacity. 

2Whether Guadalupe Medical Center/Okamoto is the same entity as 

Guadalupe Medical Center/Alvarado, is the successor to that entity, or 

some other relationship between the two entities exists is irrelevant to the 

current inquiry; the relevant allegation in the amended complaint is that 

the exercised option agreement transferred 100 percent of the shares of 

Guadalupe Medical Center/Alvarado from Alvarado to Okamoto. 

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act for Guadalupe Medical Center/Alvarado and, thus, has not 

demonstrated that he currently has standing to protect its allegedly 

confidential information, to assert its conflicts, or to cause it to sue 

petitioners. 3NRCP 23.1; Cohen v. Mirage Resorts, Inc., 119 Nev. 1, 19, 62 

P.M 720, 732 (2003) ("Because a derivative claim is brought on behalf of 

the corporation, a former shareholder does not have standing to assert a 

derivative claim. A former shareholder does, however, have standing to 

seek relief for direct injuries that are independent of any injury suffered 

by the corporation." (citations omitted)); see also Bottoms v. Stapleton, 706 

N.W.2d 411, 415, 419 (Iowa 2005) (noting that "a court must also be 

vigilant to thwart any misuse of a motion to disqualify for strategic 

reasons," and declining to disqualify counsel representing a limited 

liability company and one of its shareholders in an action by the other 

shareholder that alleged only personal, not derivative, claims); Xavier v. 

Bumbarner & Hubbell Anesthesiologists, 923 S.W.2d 428, 432 (Mo. Ct. 

App. 1996) (noting that a former shareholder of a dissolved corporation did 

not have standing to assert a claim on behalf of the dissolved corporation 

that the other shareholders interfered with the relationships between the 

dissolved corporation and its clients). 

3 "It is well settled that a corporation can act only through its 

agents." Smith's Food & Drug Ctrs., Inc. v. Bellegarde, 114 Nev. 602, 608, 

958 P.2d 1208, 1212 (1998) (citing Edwards v. Carson Water Co., 21 Nev. 

469, 485, 34 P. 381, 386 (1893)), overruled on other grounds by 

Countrywide Home Loans, Inc. v. Thitchener, 124 Nev. 725, 745-46, 192 

P.3d 243, 256-57 (2008). Aside from alleging that he was an owner, officer 

or director of Guadalupe Medical Center/Alvarado, Alvarado does not 

allege that he was otherwise vested with the authority to assert 

Guadalupe Medical Center/Alvarado's confidential information or 

conflicts. 

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Alvarado did not provide sufficient factual allegations, 

evidence, or argument to demonstrate that he has standing 

based on the option agreement's invalidity 

We recognize that the validity of the option agreement, and 

thus the ownership of the Guadalupe Medical Center, is an issue central 

to the underlying litigation. But the bare allegation, devoid of supporting 

facts, that the option agreement was fraudulently induced (or, as in the 

disqualification motion, void ab initio) is insufficient to establish 

Alvarado's standing to seek Haskin's and Gibbs Giden's disqualification by 

asserting Guadalupe Medical Center/Alvarado's confidential information 

or conflicts. In other words, in an attorney disqualification motion, the 

movant is not entitled to a presumption that he will prevail upon his 

causes of action because the movant has the burden to provide factual 

allegations, evidence, or argument sufficient to support disqualification. 

Waid v. Eighth Judicial Dist. Court, 121 Nev. 605, 611, 119 P.3d 1219, 

1223 (2005) ("[T]he inquiry into whether an attorney-client relationship 

has been established is very fact-specific . . ."); Brown v. Eighth Judicial 

Dist. Court, 116 Nev. 1200, 1205, 14 P.3d 1266, 1270 (2000) ("To prevail on 

a motion to disqualify opposing counsel, the moving party must first 

establish at least a reasonable possibility that some specifically 

identifiable impropriety did in fact occur, and then must also establish 

that the likelihood of public suspicion or obloquy outweighs the social 

interests which will be served by a lawyer's continued participation in a 

particular case." (quotation marks omitted)); see also United States v. 

Kitchin, 592 F.2d 900, 903 (5th Cir. 1979) ("An attorney may •be 

disqualified only when there is a reasonable possibility that some 

specifically identifiable impropriety actually occurred and, in light of the 

interests underlying the standards of ethics, the social need for ethical 

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practice outweighs the party's right to counsel of his choice." (quotation 

marks omitted)); Nun i v. PRC, Inc., 5 F. Supp. 2d 1299, 1304 (M.D. Ala. 

1998) (collecting applicable cases and noting that "disqualification is 

always a drastic measure, which courts should hesitate to impose except 

when absolutely necessary" and that specific facts must be alleged to 

support disqualification). 

In the underlying matter, Alvarado alleged in his ninth cause 

of action that the option agreement was fraudulently induced, but he 

alleged minimal factual support for that cause of action. Similarly, in his 

motion to disqualify and his declaration attached thereto, Alvarado did not 

address whether the option agreement was fraudulently induced. 

Therefore, Alvarado did not meet his burden in the district court of 

sufficiently demonstrating the invalidity of the option agreement, which 

would establish his standing to seek disqualification based on Guadalupe 

Medical Center/Alvarado's confidential information and conflicts. While 

Alvarado did argue in his motion that the option agreement was void ab 

initio based on NRS 89.040 and NRS 89.070, the district court did not base 

its order on this argument. We decline to consider whether this argument 

has sufficient merit to warrant a finding that Alvarado does have 

standing, without prejudice to Alvarado's ability to re-raise this issue in 

the district court. 4 

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4While we have held that doubts about an attorney's disqualification 

"should generally be resolved in favor of disqualification," Brown, 116 Nev. 

at 1205, 14 P.3d at 1270, this assumes that the moving party has 

presented sufficient facts demonstrating that disqualification is a close 

call. See Waid, 121 Nev. at 610-11, 119 P.3d at 1223; see also Plant 

Genetic Sys., N.V. v. Ciba Seeds, 933 F. Supp. 514, 517 (M.D.N.C. 1996) 

(indicating that while "the moving party has a high standard of proof to 

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The district court did not base its order on Alvarado's 

alternative arguments 

Alvarado also argues, among other things, that even if he 

lacks standing to seek Haskin's and Gibbs Giden's disqualification by 

asserting Guadalupe Medical Center/Alvarado's confidential information 

and conflicts, Alvarado himself has standing to seek to disqualify Haskin 

and Gibbs Giden based on either (a) the fact that he was the sole 

shareholder of Guadalupe Medical Center/Alvarado when Haskin and 

Gibbs Giden represented it, or (b), under Liapis, Haskin's and Gibbs 

Giden's "breach of ethics so infects the litigation in which disqualification 

is sought that it impacts the nonclient moving party's interest in a just 

and lawful determination of [his] claims." 128 Nev. at 420-21, 282 P.3d at 

737-38 (quotation marks omitted). And, while the district court found that 

Haskin and Gibbs Giden did not represent Alvarado, it did not make any 

findings as to whether they possess confidential information belonging 

solely to Alvarado, such that RPC 1.6 requires their disqualification. We 

decline to consider these arguments without prejudice to Alvarado's ability 

to raise them in the district court, because the district court did not make 

any findings of fact or conclusions of law concerning these arguments. 

...continued 

meet in order to prove that counsel should be disqualified[,] . . . in a close 

case the trial court should . . . resolve all doubts in favor of 

disqualification." (citation omitted)). This matter is not a close case 

because Alvarado has been divested of his shares of Guadalupe Medical 

Center/Alvarado and did not provide in his motion to disqualify specific 

facts establishing "at least a reasonable possibility" that his contentions 

that the option agreement was invalid have merit. Brown, 116 Nev. at 

1205, 14 P.3d at 1270 (quotation marks omitted). 

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Alvarado's failure to demonstrate that he has standing to seek 

disqualification under RPC 1.6, 1.7, 1.9, and 1.10 based on Guadalupe 

Medical Center/Alvarado's confidential information and conflicts warrants 

writ relief and vacation of the district court's order. This lack of standing 

does not affect RPC 3.7(a), however, and we address that rule separately. 

RPC 3.7 does not warrant disqualification for pretrial proceedings 

RPC 3.7(a) provides, in relevant part, that "[a] lawyer shall 

not act as advocate at a trial in which the lawyer is likely to be a 

necessary witness." Because Haskin is likely to be a witness in the 

underlying matter, Alvarado has standing to assert RPC 3.7(a) and seek 

Haskin's disqualification. We have previously held, however, that RPC 

3.7(a) "does not mandate complete disqualification of an attorney who may 

be called as a witness"; rather, it merely prevents the lawyer "from 

appearing as trial counsel." DiMartino v. Eighth Judicial Dist. Court, 119 

Nev. 119, 121, 66 P.3d 945, 946 (2003) (quotation marks omitted); see also 

Liapis, 128 Nev. at 423, 282 P.3d at 739. The concern is that the lawyer's 

appearance as a witness and as an advocate may confuse the jury, and 

this concern is not present in pretrial proceedings, even where the 

attorney is giving sworn statements to the district court. DiMartino, 119 

Nev. at 122, 66 P.3d at 947 (qualifying the lawyer's ability to represent a 

client in pretrial proceedings by noting that "the lawyer may not appear in 

any situation requiring the lawyer to argue his own veracity"). Because 

this conflict is personal to an attorney, it generally "does not mandate the 

vicarious disqualification of the lawyer's firm." F.D.I.C. v. U.S. Fire Ins. 

Co., 50 F.3d 1304, 1313 (5th Cir. 1995). Thus, this conflict does not 

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warrant Haskin's disqualification from pretrial proceedings and does not 

warrant Gibbs Giden's disqualification. Accordingly, we 

ORDER the petition GRANTED AND DIRECT THE CLERK 

OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the 

district court to vacate its September 9, 2015, Order Granting Plaintiffs' 

Motion to Disqualify Defendants' Counsel and to reconsider the motion to 

disqualify in light of this order.° 

/L-L-e-a-43t, 

cc: Hon. Douglas Smith, District Judge 

Gibbs Giden Locher Turner Senet & Wittbrodt LLP 

Hutchison & Steffen, LLC 

Eighth District Court Clerk 

5Because the district court was acting within its jurisdiction when it 

granted the motion to disqualify, we deny petitioners' alternative request 

for a writ of prohibition. NRS 34.320. 

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