State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Ubbinga
| Decision Date | 03 March 2017 |
| Docket Number | No. S-16-373.,S-16-373. |
| Citation | 893 N.W.2d 694,295 Neb. 995 |
| Parties | STATE of Nebraska EX REL. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, relator, v. Lori Anne UBBINGA, respondent. |
| Court | Nebraska Supreme Court |
Kent L. Frobish, Assistant Counsel for Discipline, for relator.
No appearance for respondent.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
On April 11, 2016, formal charges containing one count were filed by the office of the Counsel for Discipline of the Nebraska Supreme Court, relator, against Lori Anne Ubbinga, respondent. Respondent filed an answer to the formal charges on July 5. A referee was appointed, and the referee held a hearing on the charges. Respondent did not appear at the hearing.
The referee filed a report on December 2, 2016. With respect to the formal charges, the referee concluded that respondent's conduct had violated the following provisions of the Nebraska Rules of Professional Conduct: Neb. Ct. R. of Prof. Cond. §§ 3-501.1 (competence) ; 3-501.3 (diligence) ; 3-501.4(a) and (b) (communications) ; 3-501.15(d)safekeeping property); 3-501.16(d) (); 3-508.1(a) and (b) (bar admission and disciplinary matters); and 3-508.4(a), (c), and (d) (misconduct). The referee further found that respondent had violated her oath of office as an attorney licensed to practice law in the State of Nebraska. See Neb. Rev. Stat. § 7-104 (Reissue 2012). With respect to the discipline to be imposed, the referee recommended a 1-year suspension and that upon reinstatement, if applied for and accepted, respondent be placed on monitored probation for a period of 2 years. Neither relator nor respondent filed exceptions to the referee's report. Relator filed a motion for judgment on the pleadings under Neb. Ct. R. § 3-310(L) (rev. 2014) of the disciplinary rules. We grant the motion for judgment on the pleadings and impose discipline as indicated below.
Respondent was admitted to the practice of law in the State of Nebraska on September 20, 2001. At all times relevant to these proceedings, she was engaged in the practice of law in Homer, Nebraska.
On April 11, 2016, relator filed formal charges against respondent. The formal charges contain one count generally regarding respondent's failure to communicate with a client and respondent's failure to perform the legal work for the client for which respondent had been paid. The formal charges alleged that by her conduct, respondent violated her oath of office as an attorney and professional conduct rules §§ 3-501.1 ; 3-501.3 ; 3-501.4(a) and (b) ; 3-501.15(d) ; 3-501.16(d) ; 3-508.1(a) and (b) ; and 3-508.4(a), (c), and (d).
Because respondent failed to file an answer or other pleading within 30 days of being served with summons and a copy of the formal charges, relator filed a motion for judgment on the pleadings on June 22, 2016. On June 30, respondent sent an email to relator in which she requested additional time to respond to the motion and formal charges. Relator responded, stating that it would not object to respondent's filing her answer out of time, so long as it was filed by July 5. On July 5, respondent filed a motion for extension of time to respond, which this court sustained, and, accordingly, her answer was filed. In her answer to the formal charges, respondent admitted some of the factual allegations and denied others. She denied the violations alleged in the formal charges.
A referee was appointed on August 5, 2016. On August 25, relator sent a letter to respondent asking to schedule a time to take her deposition. Respondent did not respond. On August 29, relator left a voicemail message asking respondent to call.
On August 30, 2016, a prehearing conference was held by telephone with the referee, respondent, and relator. A progression schedule was established, whereby discovery was to be completed by October 7 and a hearing was set for October 25.
On September 8, 2016, relator sent an email to respondent asking her to advise relator when she would be available for her deposition. Respondent did not reply. On September 12, relator left a voicemail message for respondent and sent an email to respondent stating that relator had scheduled her deposition for September 22. Respondent did not respond to the email. Relator placed a followup call to respondent on September 15 and left a voicemail message.
Because respondent had failed to respond to relator's emails and voicemail messages, relator had the sheriff personally serve a subpoena duces tecum on respondent, which changed the date of respondent's deposition to September 29, 2016. On September 26, respondent contacted relator and requested that the date of the deposition be rescheduled because she had a funeral to attend on September 29. Relator rescheduled the deposition for October 4, and respondent's deposition was taken on October 4.
On October 5, 2016, relator and respondent exchanged emails regarding witnesses, exhibits, and a stipulation of facts. Relator sent a proposed stipulation of facts for respondent's review and consideration. Respondent did not respond to relator's proposed stipulation of facts. Respondent sent an email in which she asked relator if she could send her witness and exhibit lists at a later date. Respondent did not provide relator or the referee with respondent's list of witnesses or exhibits before the hearing.
According to the referee's report, on October 25, 2016, at approximately 6:10 a.m., respondent left a voicemail message with the referee stating that she was ill and would not be able to attend the hearing on the formal charges scheduled for that day. Respondent stated that relator " ‘could put on what he needs to put on and that maybe I could submit something in writing in maybe a week or so.’ " Respondent further stated that the referee could call her. She did not request a continuance of the hearing.
At approximately 7:35 a.m., respondent left a voicemail message with relator indicating that she was ill and would not be attending the hearing. According to the referee's report, respondent stated in the message that she would like a continuance "but understood that [relator] was ready to proceed with the hearing and she did not want to interfere with that so she said go ahead and make your record." She further stated that she would request permission to submit something in writing to the referee on a later date. Respondent did not submit any such writing to the referee.
At approximately 8 a.m., the referee called relator and communicated the content of respondent's voicemail. Relator stated that he wanted to proceed with the hearing, and the referee advised relator that he would allow relator to make his request as to how he wanted to proceed on the record.
At approximately 10 a.m., relator appeared at the hearing with his witness. Respondent did not appear. Relator stated on the record that he wished to proceed with the hearing, to offer exhibits, and to have his witness testify. Relator stated that he would not object if respondent submitted something in writing later.
At approximately 10:10 a.m., before allowing relator to put on evidence, the referee called respondent and left a voicemail message asking her to call him. Respondent did not return the referee's call. Thereafter, relator called respondent, but she did not answer. The referee stated that he would proceed with the hearing on the formal charges. The hearing was held at approximately 10:30 a.m. on October 25, 2016. Respondent did not appear. At the hearing, relator offered and the referee received 32 exhibits, and relator called one witness, respondent's client, to testify.
After the hearing was completed, relator rested its case "[s]ubject to whatever [respondent] does." The referee did not close the record and stated that as a matter of due process, he wanted to give respondent some opportunity to review the record, appear, and testify.
On October 26, 2016, the referee filed a posthearing order which he emailed to respondent and relator. The order stated in part that copies of the transcript and exhibits received at the hearing were being sent to respondent and that respondent would have 10 days to review them. The order further stated that at the end of the 10 days, the referee would contact the parties to schedule a date, time, and place for respondent to appear and present evidence.
On November 4, 2016, the referee mailed and emailed to the parties copies of the transcript and exhibits which had been received at the hearing. The referee advised that he would contact the parties on November 14 to schedule a time and place for respondent to present evidence. On November 14 at approximately 9 a.m., the referee called respondent at her home and cell phone numbers. No one answered his call at respondent's home number; no answering machine picked up. The referee left a voicemail message on the cell phone number asking respondent to call back. Respondent did not return the referee's call. At approximately 9:30 a.m., the referee called respondent's cell phone and left another message. At approximately 9:35 a.m., the referee called relator and advised him that respondent had not returned the referee's calls. Relator then made a motion for the referee to close the record of the hearing on the formal charges. The referee sustained relator's motion. The relator then set a schedule for the parties' briefing. Relator submitted a brief, but respondent did not.
On December 2, 2016, the referee filed his report and recommendation. The substance of the referee's findings may be summarized as follows: In December 2014, a client hired respondent to represent him in a child visitation case. The client had been represented at trial by a different lawyer. After the trial, the court filed a decree on December 22, awarding sole custody of the three minor children to the children's mother. The client was granted supervised...
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