State ex rel. Counsel for Discipline of Neb. Supreme Court v. Crawford, No. S–11–626.

CourtSupreme Court of Nebraska
Writing for the CourtPER CURIAM.
Citation827 N.W.2d 214,285 Neb. 321
Docket NumberNo. S–11–626.
Decision Date01 March 2013
PartiesSTATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, relator, v. Terri L. CRAWFORD, respondent.

285 Neb. 321
827 N.W.2d 214

STATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, relator,
v.
Terri L. CRAWFORD, respondent.

No. S–11–626.

Supreme Court of Nebraska.

March 1, 2013.


[827 N.W.2d 217]



Syllabus by the Court

[285 Neb. 321]1. Disciplinary Proceedings: Appeal and Error. A proceeding to discipline an attorney is a trial de novo on the record, in which the Nebraska Supreme Court reaches a conclusion independent of the findings of the referee; provided, however, that where the evidence is in conflict on a material issue of fact, the court considers and may give weight to the fact that the referee heard and observed the witnesses and accepted one version of the facts rather than another.

[827 N.W.2d 218]

2. Disciplinary Proceedings: Attorneys at Law. A license to practice law confers no vested right, but is a conditional privilege, revocable for cause.

3. Disciplinary Proceedings: Attorneys at Law. The license to practice law is granted on the implied understanding that the attorney's conduct will be proper and that the attorney will abstain from practices that discredit the attorney, the profession, and the courts.

4. Disciplinary Proceedings: Attorneys at Law. Violation of any of the ethical standards relating to the practice of law or any conduct of an attorney in his or her professional capacity which tends to bring reproach on the courts or the legal profession constitute grounds for suspension or disbarment.

[285 Neb. 322]5. Disciplinary Proceedings: Attorneys at Law. When a complainant has made allegations of attorney misconduct, the Counsel for Discipline is required to make an initial determination of whether the allegations warrant formal investigation.

6.

Rules of the Supreme Court:

Disciplinary Proceedings: Notice.

The disciplinary rules do not contemplate that an attorney must be notified of every allegation of misconduct which the Counsel for Discipline ultimately determines to be without potential merit.

7. Rules of the Supreme Court: Disciplinary Proceedings. The disciplinary rules do not require a formal grievance as a threshold requirement for the power to investigate allegations of misconduct or to audit attorney trust accounts.

8. Rules of the Supreme Court: Disciplinary Proceedings. The disciplinary rules do not limit the Counsel for Discipline's powers of investigation to the allegations stated in a grievance.

9. Disciplinary Proceedings. It is the formal charges, not the grievance, that limit the scope of misconduct which an attorney may properly be disciplined for.

10. Disciplinary Proceedings: Due Process: Notice. Due process in attorney disciplinary proceedings requires that the attorney be given notice of the proceeding and an opportunity to defend at a hearing, and that the proceeding be essentially fair.

11. Constitutional Law: Disciplinary Proceedings: Discrimination: Proof. The general rule is that unless there is proof that a particular disciplinary prosecution was motivated by an unjustifiable standard based, for example, on race or religion, the use of such discretion does not violate constitutional protections.

12. Constitutional Law: Disciplinary Proceedings: Discrimination: Proof. In order to support a defense of selective or discriminatory prosecution, the attorney must show not only that others similarly situated have not been prosecuted, but that the selection of the defendant for prosecution has been invidious or in bad faith, based upon considerations such as race, religion, or the desire to prevent the exercise of his or her constitutional rights.

13. Disciplinary Proceedings: Attorneys at Law. Whatever attorneys believe is motivating opposing counsel, a judge, or the Counsel for Discipline, attorneys are nevertheless expected to maintain the level of decorum which the profession demands and to act in accordance with their duties.

14. Disciplinary Proceedings. An attorney's failure to respond to inquiries and request for information from the office of the Counsel for Discipline is considered to be a grave matter and a threat to the credibility of attorney disciplinary proceedings.

[827 N.W.2d 219]

15. Disciplinary Proceedings. The disciplinary process as a whole must function effectively in order for the public to have confidence in the integrity of the profession and to be protected from unscrupulous acts.

16. Disciplinary Proceedings. Responding to disciplinary complaints in an untimely manner and repeatedly ignoring requests for information from the Counsel for Discipline indicate disrespect for the Nebraska Supreme Court's disciplinary jurisdiction and a lack of concern for the protection of the public, the profession, and the administration of justice.

17. Disciplinary Proceedings. The Counsel for Discipline should not be forced to threaten an attorney with the suspension of his or her license in order to get the attorney to respond to requests for information.

[285 Neb. 323]18. Disciplinary Proceedings. A failure to make timely responses to inquiries of the Counsel for Discipline violates ethical canons and disciplinary rules which prohibit conduct prejudicial to the administration of justice.

19. Disciplinary Proceedings: Words and Phrases. In the context of attorney discipline proceedings, misappropriation is any unauthorized use of client funds entrusted to an attorney, including not only stealing, but also unauthorized temporary use for the attorney's own purpose, whether or not the attorney derives any personal gain or benefit therefrom.

20. Attorney Fees: Words and Phrases. Advance fees are payments made by a client for the performance of legal services and belong to the client until earned by the attorney.

21. Attorneys at Law. The license to practice law in this state is a continuing proclamation by the Nebraska Supreme Court that the holder is fit to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and as an officer of the court.

22. Attorneys at Law. It is the duty of every recipient of the conditional privilege to practice law to conduct himself or herself at all times, both professionally and personally, in conformity with the standards imposed upon members as conditions for that privilege.

23. Disciplinary Proceedings. Misappropriation of client funds is one of the most serious violations of duty an attorney owes to clients, the public, and the courts.

24. Disciplinary Proceedings. Misappropriation by an attorney violates basic notions of honesty and endangers public confidence in the legal profession.

25. Disciplinary Proceedings. Misappropriation as the result of a serious, inexcusable violation of a duty to oversee entrusted funds is deemed willful, even in the absence of improper intent or deliberate wrongdoing.

26. Disciplinary Proceedings. A lawyer's poor accounting procedures and sloppy office management are not excuses or mitigating circumstances in reference to commingled funds.

27. Disciplinary Proceedings. The fact that the client did not suffer any financial loss does not excuse an attorney's misappropriation of client funds and does not provide a reason for imposing a less severe sanction.

28. Disciplinary Proceedings. Absent mitigating circumstances, disbarment is the appropriate discipline in cases of misappropriation or commingling of client funds.


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

[827 N.W.2d 220]

Christopher M. Ferdico, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, and Sheri Long Cotton, of Law Offices of Sheri Long Cotton, P.C., L.L.O., for respondent.


HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, MILLER–LERMAN, and CASSEL, JJ.

PER CURIAM.
[285 Neb. 324]I. NATURE OF CASE

The respondent appeals from the report and recommendation of the referee in an attorney disciplinary action. The referee recommended disbarment for violations of Neb. Ct. R. of Prof. Cond. §§ 3–501.5(f) (failure to provide detailed accounting for fees when requested), 3–501.15(a) and (c) (failure to deposit unearned fees into trust account and withdraw only as earned), and 3–508.4(c) and (d) (dishonesty, fraud, deceit, or misrepresentation and conduct prejudicial to administration of justice), and for violating the respondent's oath of office. The facts were strongly contested, and the respondent argues there was not clear and convincing evidence of the misconduct. The respondent also asserts that her due process rights were violated throughout the disciplinary proceedings and that such violations warrant a new hearing.

II. BACKGROUND

The respondent, Terri L. Crawford, was admitted to the practice of law in the State of Nebraska on April 23, 2001. Before going to law school, Crawford worked as a paralegal. She became a sole practitioner shortly after passing the bar. She predominantly practices in the areas of juvenile law and criminal defense.

Crawford maintained one trust account at Bank of the West. She maintained a personal savings account at Centris Federal Credit Union (Centris).

In September 2009, Crawford entered into an agreement to represent Nathan Cheatams. Cheatams was arrested in September 2009 in relation to a shooting that prior July. He was charged with nine felonies. A public defender was appointed for Cheatams, but Cheatams decided to hire Crawford as private counsel. On September 26, Cheatams signed a fee agreement with Crawford.

The September 26, 2009, agreement stated that Crawford would charge $150 per hour and that Cheatams would pay a $2,500 retainer. The agreement stated that “[d]uring the progression of legal services your account will be monitored and additional retainers and / or monthly installment payments may [285 Neb. 325]be required in the event the initial retainer is exhausted or if the nature of your case changes.” A trial retainer would be required if it appeared the case would be proceeding to trial. The agreement provided that after the initial retainer has been exhausted, “any...

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7 practice notes
  • State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Barfield, No. S-19-204.
    • United States
    • Supreme Court of Nebraska
    • February 21, 2020
    ...914 (2014) ; State ex rel. Counsel for Dis. v. Council , 289 Neb. 33, 853 N.W.2d 844 (2014) ; State ex rel. Counsel for Dis. v. Crawford , 285 Neb. 321, 827 N.W.2d 214 (2013) ; State ex rel. Counsel for Dis. v. Switzer , 280 Neb. 815, 790 N.W.2d 433 (2010) ; State ex rel. NSBA v. Howze , 26......
  • State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Council, No. S-13-379
    • United States
    • Supreme Court of Nebraska
    • September 12, 2014
    ...at 27, 416 N.W.2d at 531.24 See § 3–508.4, comment 5.25 See id.26 See Carter, supra note 10.27 State ex rel. Counsel for Dis. v. Crawford, 285 Neb. 321, 367, 827 N.W.2d 214, 246 (2013) (alteration in original).28 See id .29 State ex rel. NSBA v. Malcom, 252 Neb. 263, 561 N.W.2d 237 (1997).3......
  • State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Chvala, No. S-17-773.
    • United States
    • Supreme Court of Nebraska
    • November 22, 2019
    ...467 N.W.2d at 678.78 State ex rel. NSBA v. Miller , 258 Neb. 181, 602 N.W.2d 486 (1999).79 State ex rel. Counsel for Dis. v. Crawford , 285 Neb. 321, 827 N.W.2d 214 (2013).80 Id. at 329, 827 N.W.2d at 223.81 Id. at 367, 827 N.W.2d at 246-47.82 See Neb. Ct. R. § 3-310(T) (rev....
  • State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Nimmer, No. S-17-111
    • United States
    • Supreme Court of Nebraska
    • August 31, 2018
    ...or ruling until divested of jurisdiction).27 Neb. Ct. R. § 3-902.28 Neb. Ct. R. § 3-906.29 State ex rel. Counsel for Dis. v. Crawford , 285 Neb. 321, 827 N.W.2d 214 (2013).30 § 3-317(A).31 § 3-317(B).32 See Neb. Ct. R. § 3-303.33 Crawford , supra note 29.34 Id.35 Id.36 Id.37 Annot., 94 A.L.......
  • Request a trial to view additional results
7 cases
  • State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Barfield, No. S-19-204.
    • United States
    • Supreme Court of Nebraska
    • February 21, 2020
    ...914 (2014) ; State ex rel. Counsel for Dis. v. Council , 289 Neb. 33, 853 N.W.2d 844 (2014) ; State ex rel. Counsel for Dis. v. Crawford , 285 Neb. 321, 827 N.W.2d 214 (2013) ; State ex rel. Counsel for Dis. v. Switzer , 280 Neb. 815, 790 N.W.2d 433 (2010) ; State ex rel. NSBA v. Howze , 26......
  • State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Council, No. S-13-379
    • United States
    • Supreme Court of Nebraska
    • September 12, 2014
    ...at 27, 416 N.W.2d at 531.24 See § 3–508.4, comment 5.25 See id.26 See Carter, supra note 10.27 State ex rel. Counsel for Dis. v. Crawford, 285 Neb. 321, 367, 827 N.W.2d 214, 246 (2013) (alteration in original).28 See id .29 State ex rel. NSBA v. Malcom, 252 Neb. 263, 561 N.W.2d 237 (1997).3......
  • State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Chvala, No. S-17-773.
    • United States
    • Supreme Court of Nebraska
    • November 22, 2019
    ...467 N.W.2d at 678.78 State ex rel. NSBA v. Miller , 258 Neb. 181, 602 N.W.2d 486 (1999).79 State ex rel. Counsel for Dis. v. Crawford , 285 Neb. 321, 827 N.W.2d 214 (2013).80 Id. at 329, 827 N.W.2d at 223.81 Id. at 367, 827 N.W.2d at 246-47.82 See Neb. Ct. R. § 3-310(T) (rev....
  • State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Nimmer, No. S-17-111
    • United States
    • Supreme Court of Nebraska
    • August 31, 2018
    ...or ruling until divested of jurisdiction).27 Neb. Ct. R. § 3-902.28 Neb. Ct. R. § 3-906.29 State ex rel. Counsel for Dis. v. Crawford , 285 Neb. 321, 827 N.W.2d 214 (2013).30 § 3-317(A).31 § 3-317(B).32 See Neb. Ct. R. § 3-303.33 Crawford , supra note 29.34 Id.35 Id.36 Id.37 Annot., 94 A.L.......
  • Request a trial to view additional results

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