Counsel for Discipline v. Switzer

• Decision Date: 13 June 2008
• Docket Number: No. S-07-182.,S-07-182.
• Citation: 750 N.W.2d 681,275 Neb. 881
• Parties: STATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, relator, v. William L. SWITZER, Jr., respondent.
• Court: Nebraska Supreme Court

750 N.W.2d 681

275 Neb. 881

STATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, relator, v. William L. SWITZER, Jr., respondent.

No. S-07-182.

Supreme Court of Nebraska.

June 13, 2008.

Kent L. Frobish, Assistant Counsel for Discipline, for relator.

William L. Switzer, Jr., pro se.

HEAVICAN, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, and MILLER-LERMAN, JJ.

PER CURIAM.

INTRODUCTION

The office of the Counsel for Discipline of the Nebraska Supreme Court filed formal charges against respondent, William L. Switzer, Jr. After a formal hearing, the referee concluded that Switzer had violated the Code of Professional Responsibility, the Nebraska Rules of Professional Conduct, this court's disciplinary rules, and his oath of office as an attorney, and recommended a suspension of 1 year. While we adopt the findings of the referee, we do not accept the discipline recommended by the referee. We instead impose discipline as indicated below.

FACTS

On February 22, 2007, formal charges were filed by the office of the Counsel for Discipline against Switzer, alleging that Switzer had violated the following provisions of the Code of Professional Responsibility: Canon 1, DR 1-102(A)(1) (violating disciplinary rule), DR 1-102(A)(4) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), DR 1-102(A)(5) (engaging in conduct prejudicial to administration of justice), and DR 1-102(A)(6) (engaging in any other conduct adversely reflecting upon his fitness to practice law); Canon 6, DR 6-101(A)(3) (neglecting legal matter entrusted to him); Canon 7, DR 7-101(A)(2) (failing to carry out contract of employment) and DR 7-101(A)(3) (prejudicing or damaging his client during course of professional relationship); DR 7-102(A)(3) (concealing or knowingly failing to disclose that which lawyer is required by law to reveal); Canon 9, DR 9-102(A)(1) and (2) (failing to preserve identity of client funds), DR 9-102(B)(3) (failing to maintain a complete record of client funds and to render appropriate accounting), and DR 9-102(B)(4) (failing to promptly pay or deliver client funds to client). The formal charges also alleged that Switzer violated the following provisions of Neb. Ct. R. of Prof. Cond. (rev.2005): rule 8.4(a) (violating or attempting to violate Nebraska Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to administration of justice), as well as his oath of office as an attorney.¹ In his answer, Switzer disputed these allegations.

A referee's hearing was held on August 30, 2007. Switzer, acting pro se, testified at the hearing. In addition, 42 exhibits were introduced. The record in this case reveals the following facts: Switzer was retained on or about March 23, 2005, by Lori Carney and Charles Daubs. The next day, March 24, Carney sent to Switzer a check for $500 as an advance fee payment. Switzer agreed to draw up and file the necessary paperwork to have Carney and Daubs appointed as coguardians and coconservators for their mother, Marion Daubs (Marion).

Meanwhile, on March 31, 2005, unbeknownst to Carney and Daubs, Marion signed a power of attorney naming Mark Milone as her attorney in fact. Previously, Carney had held Marion's power of attorney. Marion had a stroke on April 2, which apparently gave effect to the power of attorney.

Milone notified Carney on April 4, 2005, that her appointment had been revoked and that he now held Marion's power of attorney. On April 8, Milone notified Switzer by letter of Milone's appointment. In that letter, Milone indicated that he was aware that Switzer had been retained to commence a guardianship-conservatorship action. Milone requested that he be notified of the commencement of any such action.

On April 11, 2005, Carney and Daubs met with Switzer regarding the guardianship-conservatorship. Carney testified that as of that date, Switzer was aware that Milone held Marion's power of attorney. On April 12, Switzer filed an ex parte emergency petition for appointment of temporary coguardians and coconservators. This petition failed to list Milone as an interested party, nor was the judge notified of the power of attorney held by Milone. The petition was granted.

When Milone learned that the petition was filed and granted, he filed a petition to terminate the temporary coguardianship and coconservatorship. That petition was granted on April 15 2005. Switzer was notified that same day that the guardianship-conservatorship had been terminated; he failed to notify Carney or Daubs. Carney was notified of the termination on April 19.

Subsequent to this notification, Carney and Daubs unsuccessfully attempted to contact Switzer on at least four separate occasions. Carney testified that in one instance, she waited on the telephone line for an hour to allow Switzer to talk with her when he was free. At the hearing before the referee, Switzer acknowledged that he failed Carney and Daubs, stating that he "did not do what [he] was supposed to do" and that he realized that he "absolutely" should have communicated with them better than he did.

On May 3, 2005, Daubs wrote to Switzer to terminate the attorney-client relationship. In his letter, Daubs requested an accounting of services rendered, as well as the return of the unused portion of the $500 retainer. According to evidence presented at the hearing, an accounting was never provided nor did Switzer produce any evidence regarding any portion of the retainer.

Carney and Daubs then retained new counsel. On May 5, 2005, this counsel contacted Switzer and requested a copy of the file. Such was never provided to new counsel.

On December 13, 2005, the Counsel for Discipline received a letter from Carney regarding Switzer's representation. The Counsel for Discipline forwarded the letter to Switzer for his response. On January 10, 2006, Switzer responded to the letter, noting that the file was in storage, but that he would have it retrieved. In the letter, Switzer indicated the fact that Milone held Marion's power of attorney was never communicated to him. Switzer did not address his failure to communicate with Carney and Daubs after the guardianship-conservatorship was terminated.

Despite indicating that he would respond further once the file had been retrieved, and despite the fact that additional letters were sent to him from the Counsel for Discipline on February 22 and March 22, 2006, no additional response was received. The matter was upgraded to a formal grievance on April 13; Switzer's response was received on April 18.

The April 18, 2006, response read in full: "I have received your packet of documents and enclose in response my copies of letters to you. The last letter was dated March 30, 2006. I believe that I have responded to your inquiries. Please let me know if you need further information."

Enclosed with this letter was a letter dated March 30, 2006, addressed to the Counsel for Discipline. The letter stated in part that "[e]nclosed is a copy of the letter mentioned in my last communication to you." Enclosed was a letter from Carney and Daubs' new counsel requesting the file—Switzer had indicated in his January 10 letter that he would forward this letter. However, the Counsel for Discipline denied receiving any communication from Switzer dated March 30, 2006. In response to a question by the referee with regard to the March 30 and April 18 correspondence, Switzer admitted that the March 30 letter was a "fabrication."

The Counsel for Discipline again contacted Switzer on May 12, 2006, to ask a number of followup questions related to Switzer's failure to communicate with Carney and Daubs and his failure to provide a copy of the relevant file to new counsel, as well as questions related to his billing with regard to the Carney/Daubs representation. A followup letter was sent on June 7. Switzer was eventually reached by telephone on June 20. Switzer stated that he had not received the May and June letters because they had been sent to an incorrect address. The record shows that the address was, in fact, incorrect, but that all previous correspondence had also been sent to the technically incorrect address and had been received. The Counsel for Discipline indicated that neither the May 12 letter nor the June 7 letter was returned as undeliverable.

In any event, the May and June 2006 letters were faxed to Switzer, who still failed to respond. The Counsel for Discipline again telephoned Switzer on August 3; Switzer indicated that a response letter had been written, but not yet sent. The Counsel for Discipline received a letter from Switzer on August 8. The letter was postmarked August 7.

In that letter, Switzer again stated that at the time he filed the petition for guardianship-conservatorship, he was not aware that Milone held Marion's power of attorney. Switzer failed to provide any evidence that he had deposited or withdrawn Carney's check. Switzer also claimed that a computer malfunction had prevented him from retrieving the billing statement prepared in the matter.

The referee issued his report on October 11, 2007. In that report, the referee noted that "Switzer's unwillingness to respond properly and adequately carried on following the appointment of the undersigned as Referee." The referee stated that he had asked Switzer to file a "proper Answer, which ... Switzer promised to do, but didn't do. Also ... Switzer indicated that he would conduct discovery, which he never did." The referee then concluded Switzer's conduct was in violation of DR 1-102(A)(1), (4), (5), and (6); DR 6-101(A)(3); DR 7-101(A)(2) and (3); DR 7-102(A)(3); DR 9-102(A)(1) and (2), and DR 9-102(B)(3) and (4) of the Code of Professional Responsibility; rule 8.4 of the Nebraska Rules of Professional Conduct; Neb. Ct. R. of Discipline 9(E) (rev.2001); and his oath of office as an attorney....