State ex rel. Counsel for Dis. v. Beach

• Citation: 722 N.W.2d 30,272 Neb. 337
• Decision Date: 29 September 2006
• Docket Number: No. S-05-1116.,No. S-04-1399.,S-04-1399.,S-05-1116.
• Parties: STATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, relator, v. Robert H. BEACH, respondent.
• Court: Supreme Court of Nebraska

Page 30

722 N.W.2d 30

272 Neb. 337

STATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, relator, v. Robert H. BEACH, respondent.

No. S-04-1399.

No. S-05-1116.

Supreme Court of Nebraska.

September 29, 2006.

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

No appearance for respondent.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

PER CURIAM.

These two attorney disciplinary actions involve separate formal charges filed by the office of the Counsel for Discipline of the Nebraska Supreme Court, relator against respondent Robert H. Beach. In each case, a hearing was held before a referee and neither party filed exceptions to the referee's report. We granted the relator's motion for judgment in each case and ordered briefing and oral argument on the limited issue of sanctions. The cases were briefed and argued separately. We now consider the issue of what discipline should be imposed.

FACTS

BACKGROUND

Respondent was admitted to the practice of law in the State of Nebraska on June 22, 1964. In previous disciplinary proceedings, he received two private reprimands for misconduct similar in nature to that which is the subject of these cases. The first private reprimand was issued on February 24, 1991, and the second on March 26, 1996.

CASE NO. S-04-1399: FORMAL CHARGES

Formal charges were filed on December 13, 2004. Respondent filed an answer admitting some allegations, denying others, and requesting dismissal of the formal charges. A referee appointed by this court conducted a hearing on April 12, 2005, and filed a report on May 26. We summarize the findings and recommendations of the referee.

At all relevant times, respondent was engaged in private practice in Omaha, Nebraska. In March 2004, respondent met J.N., who was a waitress at a truck stop near her home in Brownville, Nebraska. J.N. was 21 years old and married. In March or April, J.N. hired respondent to represent her in a felony probation revocation case in Nemaha County, Nebraska. Thereafter, respondent sent three letters to the Nemaha County Attorney regarding the case. Respondent also requested that the county attorney initiate mental health proceedings against J.N., but the county attorney took no action in this regard. On August 12, respondent sent a fourth letter to the county attorney, stating in part:

My client lives a block from the Brownville bridge and we will all feel rotten if she jumps. She informed her stupid husband a year ago that she was leaving him and he proceeded to get drunk and jumped off the bridge into the Mo. River. Unfortunately for [J.N] and county authorities he survived.

Respondent sent this letter without the knowledge or consent of his client.

On August 18, 2004, also without the knowledge or consent of J.N., respondent sent a letter to J.N.'s husband in which he wrote: "I believe [J.N.] at long last realizes what a useless piece of shit you are and her worst enemy. . . . Try the Brownville Bridge again—face first." On August 25, without any request from his client, respondent sent her a divorce petition with directions to sign it. In his transmittal letter, he stated in part:

Deep in your heart, you know that [your husband] is bad for you and always has been. You also know that for you to have a good life this sub human has to go. . . . He is scum and always will be. Honey, you can have a future. Let's make it a good future. [The judge assigned to the probation revocation case] will know you are sincere if you dump your hubby.

Respondent's representation of J.N. was terminated on August 26.

Respondent received notice on August 28, 2004, that a grievance had been filed with the relator regarding his August 12 and 18 letters. Respondent then sent a letter to J.N. stating: "Your dip shit husband did, in fact, file a grievance with the Counsel for Discipline. . . . Not a big deal—just an inconv[en]ience."

While J.N. was on probation and ordered not to consume alcohol, respondent accompanied her to bars and purchased alcoholic beverages for her. Respondent testified that he was paternalistic and fond of J.N., whom he referred to as his "black sheep daughter." He believed that her husband was bad for her and that breaking the relationship would be good for her well-being and would impress the judge in her probation revocation case. He also believed that J.N. was a danger to herself and should be placed in protective custody.

The referee found that respondent had violated Canon 1, DR 1-102(A)(5) and (6), and his oath of office as an attorney. Noting that respondent had twice previously been sanctioned for similar conduct, the referee recommended a public reprimand and a 6-month suspension of respondent's license.

TEMPORARY SUSPENSION

On June 17, 2005, the chairperson of the Committee on Inquiry of the Second Disciplinary District filed an application pursuant to Neb. Ct. R. of Discipline 12 (rev. 2002), requesting this court to temporarily suspend respondent from the practice of law. The application was supported by the affidavit of Kent L. Frobish, Assistant Counsel for Discipline. Frobish averred that after receiving a copy of the referee's report summarized above, respondent sent letters to the president of the Nebraska State Bar Association, an attorney representing J.N., and the Counsel for Discipline which violated Canon 4, DR 4-101B(1), and DR 1-102(A)(5), and adversely reflected on his fitness to practice law in violation of DR 1-102(A)(6). Copies of the letters were attached to the affidavit.

This court entered an order requiring respondent to show cause why his license to practice law should not be temporarily suspended based upon the allegations set forth in the application. In his response, respondent stated that he had "done nothing that will cause serious damage to the public or to the legal profession." Finding this response inadequate, we entered an order on July 13, 2005, temporarily suspending respondent's license to practice law in this state until further order of the court.

CASE NO. S-05-1116: FORMAL CHARGES

Formal charges were filed on September 19, 2005, alleging essentially the same facts set forth in the application for temporary suspension. Respondent filed an answer admitting some factual allegations, denying others, and asserting affirmative defenses, including an allegation that his statements reflected "strongly held personal opinions, and were made after suffering a stroke which occurred within weeks of receiving [the referee's report and recommendations] in S-04-1399." A second referee appointed by this court conducted a hearing on January 10, 2006, at which hearing respondent did not appear personally or through counsel. On January 19, the referee filed a report including findings of fact and recommendations for disciplinary sanctions, which we summarize here.

On June 1, 2005, respondent sent a letter to the Nebraska State Bar Association requesting a termination of his membership. The letter revealed confidential information about J.N. It also stated that the disciplinary proceeding in case No. S-04-1399 was the "result of a complaint filed by [J.N.], 22, with direction and assistance by a very dangerous woman attorney." It further stated that during the hearing in case No. S-04-1399, "[t]ruth mattered little" to the Assistant Counsel for Discipline and the referee and that it "took about 10 seconds . . . to realize this was going to be a jam job, [respondent's] being the jamee." The letter indicated that copies were sent to "[t]en judges, the Counsel [for Discipline], [the referee], several other lawyers, a few civilians and my pals." Respondent also sent a copy of the letter to the attorney mentioned therein, with a handwritten notation stating: "The practice was more enjoyable before feminazi bitches like you came on the scene."

On June 6, 2005, respondent sent a letter to the Counsel for Discipline regarding the disciplinary hearing in case No. S-04-1399. The letter stated: "People who know more about your outfit inform me Frobish is your hitman." It also stated: "Your rules suck in situations like this. I didn't try to screw her or steal her money. The letter I wrote to her disgusting husband had to be written and [J.N.] needed a couple of [sic] beers on occasion to balance her wacky head." On July 14, relator notified respondent that it had filed a grievance against him regarding his conduct in sending the aforementioned letters. Respondent answered with a letter dated July 26, 2005, in which he stated:

You and your people, Frobish, [referee], [attorney] what's her name and the Chief [of the Nebraska Supreme Court] have succeeded in ruining my livelihood, my reputation, my dignity and, finally, my health.

I suffered a stroke a few days ago the proximate cause of which is the bull shit case filed against me by your office.

All I have wanted out of life the past few years is to watch my grandchildren grow up. Now, thanks to you pricks, that wish will likely be denied me.

I have several pissed off friends who are meaner than junk-yard dogs and have good memories.

All this over a crazy, alcoholic, drug addict who will never have a normal life.

On December 26, 2005, respondent sent a letter to the referee appointed to hear the proceedings in case No. S-05-1116 and the relator. The letter generally criticized the state of the legal profession and specifically criticized the disciplinary process. The letter concluded: "Do to me what you will. I submit on the pleadings and waive oral argument. The aforementioned should be submitted to the chief. This, likely, is only the beginning."

STANDARD OF REVIEW

A proceeding to discipline an attorney is a trial de novo on the record. State ex rel. Counsel for Dis. v. Jones, 270 Neb. 471, 704 N.W.2d 216 (2005); State ex rel. Counsel for Dis. v. Chapin, 270 Neb. 56, 699 N.W.2d 359 (2005). However, because neither party has taken exception to the...