State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Hanson
| Decision Date | 17 April 2020 |
| Docket Number | No. S-19-355.,S-19-355. |
| Parties | STATE of Nebraska EX REL. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, relator, v. Brandon B. HANSON, respondent. |
| Court | Nebraska Supreme Court |
Julie L. Agena, Deputy Counsel for Discipline, for relator.
Brandon B. Hanson, pro se.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
This is an original action brought by the Counsel for Discipline of the Nebraska Supreme Court against attorney Brandon B. Hanson. This action alleges Hanson violated several provisions of the Nebraska Rules of Professional Conduct and his oath as an attorney by preparing legal documents for his girlfriend without including a "Prepared By" notation as required by Neb. Ct. R. of Prof. Cond. § 3-501.2(c) (rev. 2016). At the time, Hanson was employed as the Valley County Attorney and Hanson’s girlfriend, a former Valley County employee, was involved in a lawsuit as a self-represented litigant regarding the reasons for her termination from the Valley County sheriff’s office. This is the first time Hanson has been the subject of a disciplinary action.
Hanson was admitted to practice law in Nebraska in 2011 and served as the county attorney for Valley County, Nebraska, from January 2015 to January 2019. At all times relevant to this case, Hanson was engaged in the practice of law in Ord, Nebraska, and in a personal relationship with his girlfriend, C.S. C.S. was previously employed by the Valley County sheriff’s office as a jailer/dispatcher, but was involuntarily terminated from her employment in January 2018.
At the time C.S.’ employment was terminated, Hanson was running for reelection as the Valley County Attorney in a contested primary election. Hanson’s opponent, Kayla Clark, established a campaign social media account on which a private individual, G.B., posted a comment stating C.S. had been terminated from her employment with the sheriff’s office because she had been intoxicated at work. G.B. was an active supporter of Clark’s political campaign.
In April 2018, C.S., as a self-represented litigant, filed two lawsuits in the Valley County Court against G.B., both related to the social media comment. The documents filed by C.S. contained indexing notations that were consistent with notations on other legal documents that had been prepared by Hanson. On May 2, C.S., as a self-represented litigant, filed an amended complaint and demand for jury trial with the notation "Prepared By: Brandon B. Hanson, NSBA #24675."
On May 29, 2018, the Counsel for Discipline initiated a preliminary inquiry into Hanson’s actions. The inquiry came after Clark filed a grievance against Hanson, alleging that Hanson had prepared pleadings for C.S. without including the required notation, which was a concurrent conflict of interest with his position as the Valley County Attorney, and that he had used his political office to harass or intimidate Clark’s supporters.
Clark also asserted that if Hanson was representing C.S. in the matter, Hanson had misrepresented that C.S. was a self-represented litigant.
Valley County was not a party to C.S.’ lawsuit against G.B. However, on June 5, 2018, G.B. deposed the Valley County sheriff regarding the reason for C.S.’ termination of employment and reports made after the termination. Hanson did not enter an appearance, nor did he represent the sheriff at the deposition as the Valley County Attorney. A deputy county attorney for Custer County, Nebraska, was appointed to serve as counsel for the sheriff.
A subpoena was issued for Hanson’s deposition, individually, in which G.B. requested Hanson produce legal materials that he produced on behalf of C.S. in the matter. On July 23, 2018, Hanson filed a motion to quash the deposition on the grounds of attorney-client privilege. The motion was sustained after the Valley County Court found that Hanson had prepared legal documents for C.S. in the case and, thus, that an attorney-client privilege existed.
The Counsel for Discipline filed formal charges against Hanson, alleging he violated § 3-501.2(c) () and Neb. Ct. R. of Prof. Cond. §§ 3-501.7(a) and (b) (rev. 2019) (conflict of interest and current clients), 3-501.11(c) (), 3-503.3(a) (rev. 2016) (candor toward tribunal), 3-504.3 (dealing with unrepresented person), and 3-508.4(a) and (c) (rev. 2016) (misconduct). The Counsel for Discipline also alleged Hanson violated his oath of office under Neb. Rev. Stat. § 7-104 (Reissue 2012).
In his response to the formal charges, Hanson admitted that he violated § 3-501.2(c) by assisting C.S. in preparing legal documents without including a "Prepared By" notation. Hanson also admitted that the violation constituted misconduct under § 3-508.4(a). Hanson apologized for the error. He explained that after learning of his mistake, he added the notation in the amended complaint filed May 2, 2018, and stopped providing legal assistance to C.S. in the case. Hanson did not address the allegation that he had violated his oath of office, but denied the remaining allegations.
An evidentiary hearing was held on the charges. The only two witnesses called were Hanson and C.S. The referee found Hanson had violated his oath of office under § 7-104 and the following rules of professional conduct: §§ 3-501.2(c), 3-501.7(a) and (b), 3-504.3, and 3-508.4(a) and (c).
The referee concluded that Hanson had not violated §§ 3-501.11(c) and 3-503.3(a). There was no evidence that Hanson had confidential information regarding C.S.’ termination, or information regarding G.B., and there was insufficient evidence to find that Hanson’s failure to notify the court of his involvement was misleading.
Regarding sanctions, the referee determined that because Hanson was an elected county attorney, "his assistance to [C.S.] was an abuse of his public office" and "the need to deter others is great." The referee further concluded that self-represented individuals, such as G.B., are "especially vulnerable to ... Hanson’s behind-the-scenes assistance to [C.S.]" The referee recommended Hanson be suspended from the practice of law for a period of 6 months.
Hanson filed six exceptions to the referee’s report and recommendation. The relator filed no exceptions.
Hanson admits to violating §§ 3-501.2(c) and 3-508.4(a) by failing to include a "Prepared By" notation. However, he argues that the facts and law do not support finding violations of §§ 3-501.7(a) and (b), 3-504.3, 3-508.4(c) or statements made by the referee regarding the need for sanctions. Hanson also asserts that the recommended 6-month suspension is excessive.
Attorney discipline cases are original proceedings before the Nebraska Supreme Court.1 As such, the court reviews a referee’s recommendations de novo on the record, reaching a conclusion independent of the referee’s findings.2 Violations of disciplinary rules must be established by clear and convincing evidence.3
The basic issues in a disciplinary proceeding against an attorney are whether discipline should be imposed and, if so, the appropriate discipline evaluated under the particular facts and circumstances of the case.4 With respect to the imposition of attorney discipline in an individual case, each attorney discipline case must be evaluated in light of its particular facts and circumstances.5
When no exceptions to the referee’s findings of fact in an attorney discipline case are filed, the Nebraska Supreme Court may consider the referee’s findings final and conclusive.6 Because the relator filed no exceptions, we consider the referee’s findings that Hanson did not violate §§ 3-501.11 and 3-503.3 final and conclusive. Likewise, Hanson did not file an exception to the finding that he violated his oath of office. We therefore consider the finding that Hanson violated § 7-104 to be final and conclusive.
Scope of Representation.
Section 3-501.2(c) provides:
A lawyer may prepare pleadings, briefs, and other documents to be filed with the court so long as such filings clearly indicate thereon that said filings are "Prepared By" and the name, business address, and bar number of the lawyer preparing the same. Such actions by the lawyer shall not be deemed an appearance by the lawyer in the case. Any filing prepared under this rule shall be signed by the litigant designated as "pro se," but shall not be signed by the lawyer preparing the filing.
Hanson admits to violating this rule by drafting pleadings and providing legal advice to C.S. regarding her termination of employment from the sheriff’s office without including the required "Prepared By" notation. He asserts that he was merely trying to ensure C.S.’ documents were well drafted and that his failure to include the notation was an inadvertent mistake. Hanson also notes that after the mistake had been brought to his attention, he corrected it on the amended complaint and terminated his assistance to C.S. Although we find that Hanson’s failure to include the required notation was unintentional, he clearly violated § 3-501.2(c).
This court is mindful of the increase in self-represented litigants and the need for limited scope representation. Attorneys who are willing to answer questions, discuss the information required on court forms, and provide advice on how to draft and file legal documents provide an invaluable resource in promoting greater access to justice. We are not suggesting that § 3-501.2(c) requires a "Prepared By" stamp every time a lawyer assists a self-represented litigant in this way. Rather, under § 3-501.2(c), a "Prepared By" notation is required only when an attorney actually prepares for a client a pleading, brief, or other document that is to be filed with the court. Here, however, Hanson’s involvement was not limited...
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...86 (2017). (111.) See 8.4 Misconduct, supra note 102. (112.) See, e.g., State ex rel. Couns. for Discipline of Neb. Sup. Ct. v. Hanson, 305 Neb. 566, 577 (113.) See 8.4 Misconduct, supra note 102. (114.) See AN ANALYSIS OF RULES THAT ENABLE LAWYERS TO SERVE SELF-REPRESENTED LITIGANTS 5 (201......