State ex rel. Counsel for Discipline of Neb. Supreme Court v. Cording, S–11–870.
| Decision Date | 01 February 2013 |
| Docket Number | No. S–11–870.,S–11–870. |
| Parties | STATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, Relator, v. David E. CORDING, Respondent. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
[285 Neb. 146]1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de novo on the record.
2. Disciplinary Proceedings: Appeal and Error. When no exceptions to the referee's findings of fact are filed, the Nebraska Supreme Court may consider the referee's findings final and conclusive.
3. Disciplinary Proceedings. The basic issues in a disciplinary proceeding against an attorney are whether the Nebraska Supreme Court should impose discipline and, if so, the appropriate discipline under the circumstances.
4. Disciplinary Proceedings. Any violation of the Nebraska Rules of Professional Conduct constitutes grounds for discipline.
5. Disciplinary Proceedings. Each attorney discipline case must be evaluated individually in light of its particular facts and circumstances, and the Nebraska Supreme Court considers the attorney's acts underlying the events of the case and throughout the proceedings.
6. Disciplinary Proceedings. To determine whether and to what extent discipline should be imposed in a lawyer discipline proceeding, the Nebraska Supreme Court considers 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 offender generally, and (6) the offender's present or future fitness to continue in the practice of law.
7. Disciplinary Proceedings: Attorney and Client. Among the major considerations in determining whether a lawyer should be disciplined is maintenance of the highest trust and confidence essential to the attorney client relationship.
8. Disciplinary Proceedings. The determination of an appropriate penalty to be imposed on an attorney requires consideration of any aggravating or mitigating factors.
John W. Steele, Assistant Counsel for Discipline, for relator.
Lyle Joseph Koenig, of Koenig Law Firm, for respondent.
Following a bench trial in Lancaster County Court, David E. Cording was found guilty of third degree sexual assault and public indecency. He appealed, and the Lancaster County District Court reversed the conviction for sexual assault but affirmed the conviction for public indecency.
The Counsel for Discipline of the Nebraska Supreme Court brought formal charges based on the underlying incident, which involved respondent's solicitation of an undercover police officer to engage in a sexual act in a public place. The formal charges alleged a violation of respondent's oath of office as provided by Neb.Rev.Stat. § 7–104 (Reissue 2012) and the Nebraska rules governing professional conduct, specifically Neb. Ct. R. of Prof. Cond. § 3–508.4.
A hearing before a court-appointed referee was held on February 7, 2012, and the referee filed his report on April 19, 2012. The referee found by clear and convincing evidence that respondent's conduct violated his oath of office as an attorney and § 3–508.4(b). The referee recommended a public reprimand.
Neither party took exception to the findings and recommendations of the referee. Pursuant to Neb. Ct. R. § 3–310(L), relator moved for judgment on the pleadings. This court sustained the motion as to the facts and ordered the case to proceed to briefing and oral argument limited to the issue of discipline.
In his report, the referee found that respondent was admitted to the practice of law in the State of Nebraska on June 25, 1974. His former practice was generally in the areas of real estate, estates, probate, wills, trusts, and some criminal appointments. On occasion, he served as an acting county attorney and as a hearing officer in probation revocation cases. He was engaged in private practice until March 2010, but has not engaged in the practice of law since that time.
On June 15, 2010, respondent was walking in a park near Lincoln, Nebraska. An undercover police officer was present, watching for illegal sexual activity occurring in the park. The officer saw respondent and thought that respondent had signaled him. The officer began following respondent, and the two began a conversation. During the conversation, the officer indicated that he was voluntarily going with respondent. As they walked deeper into a wooded area of the park, the officer indicated that he was shy and that he had not done anything like this before. The indecent conduct followed.
Respondent's illegal conduct took place in a heavily wooded area of the park. There is nothing in the record to indicate that members of the public were present or that anyone viewed respondent's conduct. Respondent was charged in Lancaster County Court with third degree sexual assault and public indecency. He was found guilty of both counts.
On appeal, the Lancaster County District Court found the evidence failed to establish that the contact between respondent and the officer was not consensual, as required by Neb.Rev.Stat. §§ 28–320(1)(a) (Reissue 2008) and 28–318(8) (Cum.Supp.2012) for sexual assault. The district court reversed the conviction for third degree sexual assault, but affirmed the conviction for public indecency, which was a Class II misdemeanor.1
Respondent had previously been convicted of sexual battery in the district court for Saline County, Kansas, on July 12, 2002, which was a misdemeanor. 2 There is no record that respondent has been disciplined previously or charged with professional misconduct in the State of Nebraska.
On June 6, 2012, this court sustained relator's motion for judgment on the pleadings, limiting judgment to the facts. We ordered the parties to brief the issue of the appropriate discipline.
Neither party has taken exception to the referee's report of the facts. Neither party alleges any error.
A proceeding to discipline an attorney is a trial de novo on the record.3
When no exceptions to the referee's findings of fact are filed, we may consider the referee's findings final and conclusive.4 Because we granted judgment on the pleadings as to the facts, the only issue before us is the appropriate discipline.5 The basic issues in a disciplinary proceeding against an attorney are whether we should impose discipline and, if so, the appropriate discipline under the circumstances. 6 The decision to impose discipline depends upon whether the attorney's conduct violated the Nebraska Rules of Professional Conduct. 7
Pursuant to § 7–104, every attorney admitted to the practice of law in Nebraska takes the following oath: “You do solemnly swear that you will support the Constitution of the United States, and the Constitution of this state, and that you will faithfully discharge the duties of an attorney and counselor, according to the best of your ability.” Under § 3–508.4(b), it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.” The question before us is whether respondent's criminal act of public indecency violated his oath of office and § 3–508.4(b).
Neb. Ct. R. § 3–326(A) provides:
For the purposes of Inquiry of a Complaint or Formal Charges filed as a result of a finding of guilt of a crime, a certified copy of a judgment of conviction constitutes conclusive evidence that the attorney committed the crime, and the sole issue in any such Inquiry should be the nature and extent of the discipline to be imposed.
Any violation of the Nebraska Rules of Professional Conduct constitutes grounds for discipline.8 Each attorney discipline case must be evaluated individually in light of its particular facts and circumstances, and this court considers the attorney's acts underlying the events of the case and throughout the proceedings.9 This case is one of first impression in Nebraska, in that there are no actions for attorney discipline similar to the facts in this case.
In summary, respondent argues that his conduct did not adversely reflect on his fitness as a lawyer because his actions were not undertaken when he was acting in that capacity. Respondent claims that the offense of public indecency was not an offense relevant to the practice of law because it does not involve violence, dishonesty, breach of trust, or serious interference with the administration of justice. He asserts that his actions, at best, would support nothing more than a finding that he touched someone where the touching could be observed by the public. At the time of the incident, there were no other people present and no one was in a position to observe the touching.
Under these circumstances, respondent argues there was no connection between the alleged behavior and his honesty, trustworthiness, and fitness as an attorney. There were two isolated instances, years apart, in different states. At the hearing before the referee, respondent testified that he was not conducting any legal work and that he was not doing anything which would suggest he was a lawyer. He asserted that a lawyer is not subject to disciplinary action simply because he has committed a criminal act; the act itself must reflect adversely on the lawyer's honesty, trustworthiness, and fitness.
The referee concluded that the evidence was clear and convincing that on June 15, 2010, respondent engaged in lewd conduct in a public park where the conduct could have been viewed by the public. The referee found by clear and convincing evidence that this criminal act reflected adversely on respondent's fitness as a lawyer in other respects. He also concluded that the record showed by clear and convincing evidence that respondent violated his oath of office as an...
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