State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Council
| Decision Date | 12 September 2014 |
| Docket Number | No. S-13-379,S-13-379 |
| Parties | State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, relator, v. Brenda J. Council, respondent. |
| Court | Nebraska Supreme Court |
John W. Steele, Assistant Counsel for Discipline, for relator.
Vince Powers, of Vince Powers & Associates, for respondent.
1. Disciplinary Proceedings.A proceeding to discipline an attorney is a trial de novo on the record.
2. 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.
3. 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.
4. Disciplinary Proceedings.To determine whether and to what extent discipline should be imposed in an attorney 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.
5. Disciplinary Proceedings.In determining the proper discipline of an attorney, the Nebraska Supreme Court considers the attorney's actions both underlying the events of the case and throughout the proceeding, as well as any aggravating or mitigating factors.
6. Disciplinary Proceedings.Each attorney discipline case must be evaluated individually in light of its particular facts and circumstances. In addition, the propriety of a sanction must be considered with reference to the sanctions imposed in prior similar cases.
7. Disciplinary Proceedings.Multiple acts of attorney misconduct are deserving of more serious sanctions and are distinguishable from isolated incidents.
8. Disciplinary Proceedings: Presumptions.In an attorney discipline case, mitigating factors may overcome the presumption of disbarment in misappropriation and commingling cases where such factors are extraordinary and substantially outweigh any aggravating circumstances. Absent such mitigating circumstances, the appropriate sanction is disbarment.
The Counsel for Discipline of the Nebraska Supreme Court, relator, brought formal charges against Brenda J. Council, respondent, based on the conduct underlying her convictions for abuse of public records and wire fraud. A court-appointed referee found that respondent had violated her oath of office as an attorney and Neb. Ct. R. of Prof. Cond. § 3–508.4 (misconduct) and recommended that she be suspended from the practice of law for 1 year, followed by 2 years' probation. Relator takes exception to the recommended sanction as being too lenient. We find that because respondent's misconduct involved misappropriation, misrepresentation, the violation of Nebraska law, and abuse of public office, she should be disbarred.
In 1977, respondent was admitted to practice law in Nebraska. Between 1982 and 2005, she was elected or appointed to various public offices, including the Omaha Board of Education, the Omaha City Council, and the Commission of Industrial Relations. In 2005, respondent went into private practice in Omaha, Nebraska. She maintained this practice at all times relevant to these disciplinary proceedings.
Between 2009 and 2013, respondent served as a state senator for the 11th legislative district. After her initial election, her campaign committee, designated the “Committee to Elect Brenda Council” (campaign committee), remained in existence. The campaign committee had a separate bank account for which respondent held a debit card.
Between January 2010 and July 2012, respondent took out more than $63,000 in cash advances using the campaign
committee's debit card and spent those funds for gambling. She also made various deposits into the campaign committee's account in an attempt to “repay those campaign funds.” Respondent did not report the withdrawals or the subsequent deposits on her campaign statements filed with the Nebraska Accountability and Disclosure Commission (NADC).
For failing to report the cash advances and deposits and for filing false reports with the NADC, respondent was charged with two counts of abuse of public records (Class II misdemeanor), pursuant to Neb.Rev.Stat. § 28–911(1)(d) (Reissue 2008). She pled guilty to these charges. The county court found her guilty and ordered her to pay a fine of $500.
In April 2013, relator brought formal charges against respondent. Relator alleged that respondent's conduct surrounding the misuse of campaign funds violated respondent's oath of office as an attorney and § 3–508.4 (misconduct). Respondent admitted to the charges, but she affirmatively alleged that she had repaid “the majority of the funds” and was “undergoing Counseling for her gambling addictions.”
While the disciplinary proceedings were pending, respondent was charged in federal district court with wire fraud, a felony, under 18 U.S.C. § 1343 (2012) for her misuse of campaign funds. Pursuant to a plea agreement, she entered a plea of guilty and was sentenced to 3 years' probation, a $500 fine, and a $100 “felony assessment.”
After learning of respondent's conviction for wire fraud, the Committee on Inquiry for the Second Disciplinary District requested that we temporarily suspend respondent from the practice of law in Nebraska pending resolution of the disciplinary proceedings. Respondent voluntarily consented to the entry of an order imposing a temporary suspension, which we entered on September 25, 2013.
Respondent consented to and relator filed additional formal charges that made reference to respondent's conviction for wire fraud. As before, relator alleged that respondent's conduct surrounding the misuse of campaign funds violated respondent's oath of office as an attorney and § 3–508.4 (misconduct). Respondent again admitted the allegations.
On December 18, 2013, a hearing was held before a court-appointed referee. Based on the evidence adduced at the hearing, the referee found that respondent had violated her oath of office as an attorney and § 3–508.4 (misconduct). The referee recommended that respondent be suspended for 1 year, with credit for the length of her temporary suspension. He also recommended that following the period of suspension, respondent should complete 2 years' probation, the terms of which would include yearly audits of her trust account.
The referee explicitly considered and dismissed disbarment as an appropriate sanction for respondent's violations, because (1) her acts of misconduct “have had no impact upon the Respondent's service to the legal profession,” (2) she had no prior violations, (3) her actions following the misconduct “mitigate[d] the seriousness of the misconduct,” (4) “[s]ociety is addressing the moral grounds of the misconduct,” and (5) she is fit to continue practicing law. The referee opined that “we all lose if our sanction prevents the Respondent from serving her clients in her community as an attorney.”
A proceeding to discipline an attorney is a trial de novo on the record.1
Neither party takes exception to the referee's factual findings. However, relator takes exception to the referee's recommended sanction.
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.2 We address each issue in turn.
1. Grounds for Discipline
The referee determined that respondent had violated her oath of office as an attorney and § 3–508.4 (misconduct). As noted previously, neither party took exception to that finding or any other factual finding in the referee's report. When no exceptions to the referee's findings of fact are filed, we may consider the referee's findings final and conclusive.3 We do so in the instant case.
2. Appropriate Discipline
Based upon the undisputed findings of fact in the referee's report, we conclude that the formal charges and the additional formal charges against respondent are supported by clear and convincing evidence. We specifically conclude that by her conduct, respondent violated her oath of office as an attorney and § 3–508.4 (misconduct). We limit the remainder of our discussion to the appropriate discipline.
The referee recommended that respondent be suspended from the practice of law in Nebraska for 1 year, with credit for the length of her temporary suspension, and that following the period of suspension, respondent should complete 2 years' probation. Respondent argues that relator waived any objection to this recommendation, because at the hearing before the referee, relator did not object to respondent's arguments for a 1–year suspension. We do not agree that relator waived the right to object.
Relator did not waive the right to object to the referee's recommendation, because relator did not have the opportunity to object to that recommendation at the hearing. At the time of the hearing, the referee had not made a recommendation as to what sanction respondent should receive. Relator could not, by his failure to object to respondent's arguments for a 1–year suspension, waive the right to take exception to the referee's recommendation, which at that time, had not yet been made. And we point out that this court is not required to accept the recommendations of the referee as to the discipline to be
imposed.4 Our consideration of the discipline to be imposed is de novo.5
Having settled this preliminary matter regarding relator's exception, we now proceed to determine the appropriate sanction for respondent's misconduct. Under Neb. Ct. R. §...
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