Business & Practice

Ex-Wilson Elser Partner Who Took Funds From Firm Suspended

Feb. 3, 2020, 8:01 PM

A Nevada attorney who took money from his firm’s operating account and lied about it when confronted was suspended for nine months by the state’s highest court.

But the Supreme Court of Nevada in its Jan. 31 opinion declined to disbar Kym S. Cushing, noting his “personal and emotional problems.”

Cushing, who said he was “extremely disappointed” with the opinion, worked for Wilson Elser Moskowitz Edelman & Dicker from 2005 to 2018.

When Wilson Elser found out he had written three personal checks from the operating account, Cushing told them they were reimbursements for an expert witness, the court said. He even provided the firm with the name of the witness, which turned out to be a friend and pro bono client, it said.

He ultimately told the firm the money was for his gambling debts and resigned at the firm’s request, the court said.

But when applying for another job, he lied about why he resigned, it said. He went on to work with Lewis Brisbois Bisgaard & Smith, but is no longer with that firm.

In order to avoid a temporary suspension in 2018, Cushing agreed to attend court-ordered treatment with the Nevada Lawyers Assistance Program but the court said he didn’t follow through and lied about the reason why.

In the March 2018 order, the court noted that the state bar counsel petition raised “serious concerns about Cushing’s honesty, alcohol use, and gambling.”

According to the court’s Jan. 31 opinion, Cushing’s conduct violated ethics rules prohibiting dishonesty and knowingly disobeying an obligation under the rules of a tribunal.

“Substantial evidence” supports the disciplinary panel’s findings that Cushing’s mental state was “intentional and that his misconduct harmed the public and the legal profession and potentially harmed his pro bono client,” the court said in determining the sanction. It conceded, however, that there were mitigating factors including his emotional problems and lack of prior discipline.

The court rejected Cushing’s assertion that additional mitigating factors applied.

Cushing can apply for reinstatement after participating in the Nevada Lawyers Assistance Program and completing an anger management program, it said.

Cushing said that the state supreme court didn’t address any of his arguments in its Jan. 31 opinion.

He said that the conflict with Wilson Elser was really about an employment dispute he had with the firm that didn’t affect his clients and had “nothing to do with the practice of law.”

The case is In re Cushing, 2020 BL 35243, Nev., No. 78367, 1/31/20.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com

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