State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Trembly
| Decision Date | 15 June 2018 |
| Docket Number | No. S-17-461.,S-17-461. |
| Citation | 300 Neb. 195,912 N.W.2d 764 |
| Parties | STATE of Nebraska EX REL. COUNSEL FOR DISCIPLINE OF THE NEBRASKA SUPREME COURT, relator, v. Kent J. TREMBLY, respondent. |
| Court | Nebraska Supreme Court |
Julie L. Agena, Assistant Counsel for Discipline, for relator.
Clarence E. Mock, of Johnson & Mock, P.C., L.L.O., Oakland, for respondent.
This is an attorney discipline case in which the only question before this court is the appropriate sanction. Kent J. Trembly admits to receiving a felony conviction for filing a false individual income tax return in the U.S. District Court for the District of Nebraska. The referee recommended Trembly be suspended from the practice of law for 18 months. However, after our de novo review of the record, we conclude a 3-year suspension from the practice of law is the proper sanction.
Trembly was admitted to the practice of law in the State of Nebraska on September 28, 1994. At all relevant times, he was engaged in the practice of law in Wahoo, Nebraska.
On December 16, 2015, the U.S. District Court for the District of Nebraska accepted Trembly’s plea of guilty and found him guilty of the charge of filing a false tax return for tax year 2006, under I.R.C. § 7206(1) (2012). Specifically, Trembly filed a U.S. individual tax return that failed to report any gross receipts from his business activity—involving legal, veterinary, supplement sales, and investment broker-age businesses—omitting gross receipts of $1,110,982.77. On December 8, 2016, Trembly was sentenced to probation for 2 years, with 6 months of home restriction, and restitution in the amount of $110,374.58.
On May 3, 2017, Counsel for Discipline of the Nebraska Supreme Court filed formal charges against Trembly, alleging that he violated his oath of office as an attorney, Neb. Rev. Stat. § 7-104 (Reissue 2012), and Neb. Ct. R. of Prof. Cond. § 3-508.4(a) through (c). Trembly admitted to these allegations in his answer, and we sustained Counsel for Discipline’s motion for judgment on the pleadings limited to the facts. We then appointed a referee for the taking of evidence limited to the appropriate discipline.
After an evidentiary hearing, the referee reported his findings of fact and recommendations for the appropriate sanction. The referee reasoned that omitting over $1 million of income from a tax return was serious, needed to be deterred, and reflected poorly on the reputation of the bar as a whole. However, the referee noted that Trembly’s actions did not harm any clients and that "Trembly has accepted responsibility for the actions that form the basis of this proceeding, has satisfied all terms of his probation and has cooperated with Counsel for [D]iscipline to resolve this matter expeditiously."
The referee also identified certain mitigating factors that reflect on Trembly’s present and future fitness to practice law: Trembly’s cooperation with Counsel for Discipline and acceptance of responsibility; Trembly’s lack of prior disciplinary issues, with Counsel for Discipline or the professional boards in the three states where he holds a veterinarian license; and his honorable discharge from the Nebraska Air National Guard as a lieutenant colonel in 2014.
In the report, the referee acknowledged the seriousness of a felony conviction and that this court has generally found disbarment to be the appropriate sanction for attorneys who have received a felony conviction. Nevertheless, the referee stated that such discipline was not required and that "the nature of the conduct ... ought to be evaluated more thoroughly than the final classification of any criminal proceeding."
The referee found Trembly’s conduct more egregious than in cases where attorneys filed no income tax returns, receiving 1-year suspensions, but less egregious than in State ex rel. Counsel for Dis. v. Mills1 ( Mills I ), where we issued a 2-year suspension. Because the attorney in Mills I , Stuart B. Mills, was convicted of a felony for the conduct we had disciplined him for after our proceedings and he received no additional suspension because of the conviction, the referee determined Trembly’s felony conviction was essentially irrelevant to determining his discipline. In weighing the factors for imposing discipline and the mitigating factors, the referee determined the appropriate sanction for Trembly fell between cases involving 1-year and 2-year suspensions. Accordingly, the referee recommended Trembly be suspended from the practice of law for 18 months.
The only question before this court is the appropriate discipline.
Because attorney discipline cases are original proceedings before this court, we review a referee’s recommendations de novo on the record, reaching a conclusion independent of the referee’s findings.2
The basic issues in a disciplinary proceeding against an attorney are whether discipline should be imposed and, if so, the appropriate discipline under the circumstances.3 To determine whether and to what extent discipline should be imposed in an attorney discipline proceeding, we consider the following factors: (1) the nature of the offense, (2) the need for deterring others, (3) the maintenance of the reputation of the bar as a whole, (4) the protection of the public, (5) the attitude of the respondent generally, and (6) the respondent’s present or future fitness to continue in the practice of law.4 Each attorney discipline case must be evaluated in light of its particular facts and circumstances.5
Violation of a disciplinary rule concerning the practice of law is a ground for discipline.6 Further, criminal offenses committed by an attorney and involving violence, dishonesty, breach of trust, or serious interference with the administration of justice require imposition of attorney discipline.7
Trembly admitted being convicted of a felony for filing a false individual income tax return and violating the Nebraska Rules of Professional Conduct and his oath of office as an attorney, § 7-104, in his answer to the formal charges. Thus, we granted Counsel for Discipline’s motion for judgment on the pleadings as to the facts substantiating the grounds for disciplinary action. We must now determine the appropriate sanction.
Under Neb. Ct. R. § 3-304, this court may impose one or more of the following disciplinary sanctions: "(1) Disbarment by the Court; or (2) Suspension by the Court; or (3) Probation by the Court in lieu of or subsequent to suspension, on such terms as the Court may designate; or (4) Censure and reprimand by the Court; or (5) Temporary suspension by the Court[.]"
For purposes of determining the proper discipline of an attorney, we consider the attorney’s actions both underlying the events of the case and throughout the proceeding, as well as any aggravating or mitigating factors.8 The propriety of a sanction must be considered with reference to the sanctions imposed in prior similar cases.9
We have stated that "[t]here should be no question that the knowing failure to file tax returns and to pay taxes is a serious violation of the ethical obligations of an attorney."10 Trembly’s actions are even more serious in light of his affirmative misrepresentation to the Internal Revenue Service (IRS) by underreporting his income and signing that the amount he did report was accurate. We have stated that the failure to file a tax return is a crime of moral turpitude, which is now reflected in a professional conduct rule prohibition against "commit[ing] a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; [and] engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation."11
Another important consideration regarding the nature of Trembly’s offense is the sheer magnitude of Trembly’s conduct. The fact that Trembly underreported over $1.1 million in income makes the misrepresentation substantially more egregious.
Attorneys have an " ‘obligation to uphold the laws of the United States’ and [a] felony conviction thus ‘violate[s] basic notions of honesty and endanger[s] public confidence in the legal profession’ " at the most egregious level.12 Accordingly, crimes severe enough to warrant a felony conviction are those most detrimental to the bar and require a sanction deterring other members of the bar from committing such actions. While felonies resulting from actions harming a client or committed in the performance of duties as a legal professional are distinguishable from felonies committed as a member of the public, both violate the basic notion that attorneys are guardians of the law.
Trembly’s actions were in his capacity as an individual, not an attorney, and did not harm any clients.
Nevertheless, the goal of attorney discipline proceedings is not as much punishment as a determination of whether it is in the public interest to allow an attorney to keep practicing law.13 Providing for the protection of the public requires the imposition of an adequate sanction to maintain public confidence in the bar.14
The referee stated, "Trembly has accepted responsibility for the actions that form the basis of this proceeding, has satisfied all terms of his probation and has cooperated with Counsel for [D]iscipline to resolve this matter expeditiously."
There was no evidence presented of Trembly’s being unfit to practice law based on any mental condition or any other issue in personal life. As mentioned above, a criminal act of any kind negatively reflects on an attorney’s fitness to practice law. A pattern of noncompliance with our disciplinary rules and cumulative acts of attorney misconduct are...
To continue reading
Request your trial
-
State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Barfield
...Neb. 40, 541 N.W.2d 53 (1995).22 See State ex rel. Counsel for Dis. v. Switzer , supra note 21.23 See, State ex rel. Counsel for Dis. v. Trembly , 300 Neb. 195, 912 N.W.2d 764 (2018) ; State ex rel. Counsel for Dis. v. Council , supra note 21.24 See State ex rel. Counsel for Dis. v. Pierson......
-
State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Nimmer
...Court should impose discipline and, if so, the appropriate discipline under the circumstances").17 State ex rel. Counsel for Dis. v. Trembly, 300 Neb. 195, 912 N.W.2d 764 (2018).18 § 3-310(C).19 See § 3-310(J).20 Id.21 Id.22 § 3-310(L).23 Herzog , supra note 16.24 Id . at 822, 805 N.W.2d at......
-
State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Chvala
...ex rel. Nebraska State Bar Ass'n v. Basye , 138 Neb. 806, 295 N.W. 816 (1941).64 See id.65 See id.66 State ex rel. Counsel for Dis. v. Trembly , 300 Neb. 195, 912 N.W.2d 764 (2018).67 Brief for respondent at 33.68 See Nimmer , supra note 1.69 State ex rel. Counsel for Dis. v. Cording , 285 ......
-
State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Castrejon
...recommendations de novo on the record, reaching a conclusion independent of the referee's findings. State ex rel. Counsel for Dis. v. Trembly , 300 Neb. 195, 912 N.W.2d 764 (2018).ANALYSIS A proceeding to discipline an attorney is a trial de novo on the record. State ex rel. Counsel for Dis......