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Attorney Accused of Deposition Misconduct, Suspended for Flashing Gun

— September 25, 2018

Attorney Accused of Deposition Misconduct, Suspended for Flashing Gun

James Pengilly, a Las Vegas attorney, has been suspended for six months and one day for deposition misconduct.  He has been accused of a slew of inappropriate actions, including flashing a gun and calling his opponent in a defamation suit derogatory names.  The alleged incident occurred during a September 2016 deposition at his office where the attorney was representing himself as the defendant in the lawsuit.  The individual being deposed at the time of the misconduct was the plaintiff.

According to the written opinion, “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.”  The state high court called the attorney’s conduct “appalling.”

The court continued, “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.”

Attorney Accused of Deposition Misconduct, Suspended for Flashing Gun
Photo by Melinda Gimpel on Unsplash

Court documents stated Dale Hayes, the plaintiff’s attorney, and his client are uncertain whether Pengilly actually aimed the gun at them “as they were trying to gather their belongings and get out of the deposition room.”  The deponent and his lawyer testified they were afraid Pengilly was going to shoot them, regardless, and immediately called the police.  The Nevada Supreme Court said there was the potential for serious injury to everyone “because a deadly weapon was involved.”

Hayes claimed Pengilly also spoke to his client in “an aggressive and snarly tone” as the deposition began and later called the client a “dipshit” and “Big Bird.”

Pengilly responded he carries a gun because his father worked in a San Francisco law firm where a gunman killed eight people.  “I have it every day, all day,” he said. “I always carry a gun because I’m an attorney and people don’t like me.”  He continued, “I wouldn’t use it.  I didn’t pull it out.  I didn’t threaten anybody. I didn’t brandish it. That’s ridiculous…I would protect myself, but I certainly didn’t threaten anybody.”

In fact, he called gun allegations a delay tactic. “I’ve been setting their depositions for years, and they refuse to show up.  They have no evidence.  They have nothing,” he said.  He also claimed the man who is suing him, as well as the man’s brother, are both “hotheads” who have threatened to beat him up.

The court concluded in its opinion regarding the misconduct, “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.”  It stated that 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.”


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