State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Gast
| Citation | 298 Neb. 203,903 N.W.2d 259 |
| Decision Date | 09 November 2017 |
| Docket Number | No. S-17-318.,S-17-318. |
| Parties | STATE of Nebraska EX REL. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, relator, v. William E. GAST, respondent. |
| Court | Supreme Court of Nebraska |
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.
This original proceeding arises from formal charges filed by the Counsel for Discipline (Relator) against attorney William E. Gast. Relator alleges violations of the Nebraska Rules of Professional Conduct and Gast's oath of office as an attorney arising from (1) the unauthorized practice of law and (2) frivolous pleadings. We granted Relator's motion for judgment on the pleadings pursuant to Neb. Ct. R. § 3-310(I) (rev. 2014), and the facts alleged in the formal charges are deemed admitted. Thus, the only issue we must determine is the appropriate discipline to be imposed. Given the facts and circumstances of this case, we adopt Relator's recommended sanction of an indefinite period of suspension of at least 1 year, with reinstatement conditioned on Gast's demonstrating his fitness to practice law and addressing the circumstances of the instant violations. Such sanction shall run consecutively to the suspension previously imposed by this court.
Gast was admitted to the practice of law in the State of Nebraska on January 22, 1973. At all times relevant to these proceedings, Gast was engaged in the practice of law in Nebraska. This disciplinary proceeding results from formal charges filed by Relator on March 24, 2017. See Neb. Ct. R. § 3-309(H) (rev. 2011).
The undisputed formal charges allege that Gast (1) engaged in the unauthorized practice of law in violation of (a) Neb. Ct. R. of Prof. Cond. §§ 3-501.4 (), (b) 3-501.16 (failure to withdraw after suspension), (c) 3-505.5 (rev. 2012) (practicing law while suspended), and (d) 3-508.4(d) () and (2) filed frivolous pleadings in violation of (a) Neb. Ct. R. of Prof. Cond. §§ 3-503.1 () and (b) 3-508.4(d) (). The formal charges further allege that Gast's acts and omissions violated his oath of office as an attorney licensed to practice law in Nebraska. See Neb. Rev. Stat. § 7-104 (Reissue 2012).
On June 30, 2015, Gast's license to practice law in Nebraska was suspended because Gast failed to report his mandatory continuing legal education (MCLE) requirements and failed to pay his mandatory assessment to the Attorney Services Division.
Gast had previously filed suit on behalf of Connie Surber in the district court for Douglas County in case No. CI14-7634. Although Gast had actual knowledge that his license was administratively suspended on June 30, 2015, he continued to represent Surber in that case and did not inform her that his license had been suspended. Gast did not withdraw from representing Surber in the district court and did not notify the district court and opposing counsel of his suspension.
Gast's license was later reinstated on January 22, 2016, after he complied with his MCLE requirements and paid the appropriate assessment.
On September 9, 2016, Gast sent a letter informing Relator that he had represented Surber during his suspension, between June 30, 2015, and January 22, 2016. Gast sent the letter after opposing counsel in Surber's case discovered that Gast's license had been suspended during a time Gast represented Surber and informed Gast that he would report Gast's conduct if Gast did not.
According to the formal charges, on September 9, 2016, Relator sent the following email to Gast:
Gast did not respond to the email.
On September 15, 2016, Relator sent a certified letter to Gast informing him that an investigation had been opened regarding his unauthorized practice of law. The letter directed Gast to submit an appropriate written response within the next 15 working days. See § 3-309(E). Gast signed for the certified letter on September 22, but he did not submit a written response.
On November 17, 2016, Relator sent a followup email to Gast directing him to file his response to the certified letter. On November 21, Gast sent a reply email stating that he would send his written response " ‘asap,’ " but he did not submit any such written response.
Because Gast did not submit a response to Relator, on December 13, 2016, Relator sent a followup email to Gast directing him to immediately file a response to the September 15 certified letter or an application for the temporary suspension of his license to practice law would be filed. Gast did not file any such response, so on January 12, 2017, the "Chair of the District Four Committee on Inquiry" filed an application for the temporary suspension of Gast's license to practice law. The application was docketed as case No. S-17-052.
On January 26, 2017, we issued an order to show cause in case No. S-17-052, directing Gast to show cause within 7 days after receipt of the order why we should not enter an order temporarily suspending his license to practice law in Nebraska. That order was delivered to Gast by certified mail, and Gast signed for it on January 28. Gast did not file a response to the order to show cause.
On February 15, 2017, we suspended Gast from the practice of law in the State of Nebraska until further order. Relator filed these formal charges on March 24.
On May 19, 2017, we issued our decision in another disciplinary matter involving Gast, his only previous discipline for violating the Rules of Professional Conduct. See State ex rel. Counsel for Dis. v. Gast, 296 Neb. 687, 896 N.W.2d 583 (2017). That disciplinary matter includes facts relevant to the current charges for the unauthorized practice of law.
The previous disciplinary matter commenced in November 2014, when a grievance was filed with Relator against Gast based on a series of communications he sent to Douglas County District Court Judge Peter C. Bataillon in the course of litigating State of Florida v. Countrywide Truck Ins. Agency, 294 Neb. 400, 883 N.W.2d 69 (2016), a lengthy and complicated case, referred to here as the " Florida v. Countrywide Truck litigation," which began in January 1998.
The private communications urged Judge Bataillon to rule based on improper and legally irrelevant grounds. Relator ultimately filed formal charges on September 1, 2015, alleging that Gast violated the Rules of Professional Conduct and his oath of office when he sought to influence the judge by means prohibited by law and made statements with reckless disregard for truth or falsity regarding the integrity of the judge.
According to the record before this court in State ex rel. Counsel for Dis. v. Gast, supra , in June 2016, Gast gave sworn testimony at the formal hearing regarding his suspension in 2015, the period during which the current formal charges allege he engaged in the unauthorized practice of law. Gast stated that he failed to pay his dues because he was depressed at the time and he "was not [him]self" due to the "way [he] was being treated" in matters relating to the Florida v. Countrywide Truck litigation. Gast further explained that he did not have the money to pay his $98 dues, because he had not been paid in the Florida v. Countrywide Truck litigation since 2009 and he did not have many other cases. He testified that he accepted these consequences to be a "zealous advocate" for his client. Regarding the unreported MCLE requirements, Gast again stated that he "just wasn't [him]self" at the time and referred to his frustrations with the Florida v. Countrywide Truck litigation. Gast denied representing any clients as of July 1, 2015, when he learned of his suspension for failure to pay dues and to report MCLE requirements, and he testified that he notified his clients of his suspension.
In State ex rel. Counsel for Dis. v. Gast, supra , we suspended Gast from the practice of law for a period of 1 year retroactive to March 3, 2017, to be followed by a period of 2 years' probation upon reinstatement.
The frivolous pleadings charge also relates to the Florida v. Countrywide Truck litigation. At all relevant times, Gast represented two of the defendants in that case.
As mentioned above, the case was filed in the district court for Douglas County in January 1998; Gast entered his appearance in February 2002. The case was appealed to this court multiple times. See, State of Florida v. Countrywide Truck Ins. Agency, 275 Neb. 842, 749 N.W.2d 894 (2008) ; State of Florida v. Countrywide Truck Ins. Agency, 270 Neb. 454, 703 N.W.2d 905 (2005) ; State of Florida v. Countrywide Truck Ins. Agency, 258 Neb. 113, 602 N.W.2d 432 (1999).
On May 12, 2015, the district court, Judge Bataillon presiding, entered judgment for the plaintiff. According to the formal charges, on May 29, the district court entered an order finding that Gast filed several frivolous actions over the course of the litigation:
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