State ex rel. Nebraska State Bar Ass'n v. Brown, S-94-156

• Citation: 560 N.W.2d 123,251 Neb. 815
• Decision Date: 28 February 1997
• Docket Number: No. S-94-156,S-94-156
• Parties: STATE of Nebraska ex rel. Nebraska State Bar Association, Relator, v. Fred H. BROWN, Respondent.
• Court: Supreme Court of Nebraska

Page 123

560 N.W.2d 123

251 Neb. 815

STATE of Nebraska ex rel. Nebraska State Bar Association, Relator, v. Fred H. BROWN, Respondent.

No. S-94-156.

Supreme Court of Nebraska.

Feb. 28, 1997.

Syllabus by the Court

1. Disciplinary Proceedings: Appeal and Error. A proceeding to discipline a lawyer is a trial de novo on the record, in which the Nebraska Supreme Court reaches a conclusion independent of the findings of the referee; provided, however, that where the credible evidence is in conflict on a material issue of fact, the court considers and may give weight to the fact that the referee heard and observed the witnesses and accepted one version of the facts rather than another.

2. Disciplinary Proceedings. In order to sustain a complaint in a lawyer discipline proceeding, the Nebraska Supreme Court must find the complaint to be established by clear and convincing evidence.

3. Disciplinary Proceedings: Rules of the Supreme Court. The failure to comply with Neb.Ct.R. of Discipline 16 (rev.1996) places one in contempt of court and constitutes an aggravating circumstance.

4. Disciplinary Proceedings. Doing what one is required to do is not a mitigating circumstance.

5. Disciplinary Proceedings. The basic issues in a disciplinary proceeding against a lawyer are whether discipline should be imposed and, if so, the type of discipline appropriate under the circumstances.

6. Disciplinary Proceedings: Convictions. The conviction of a crime involving moral turpitude, whether a felony or misdemeanor, is conclusive evidence warranting disciplinary action.

7. Disciplinary Proceedings. To determine whether and to what extent discipline should be imposed, it is necessary that the following factors be considered: (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.

8. Disciplinary Proceedings. Violation of a disciplinary rule concerning the practice of law is a ground for discipline.

John W. Steele, Assistant Counsel for Discipline, for relator.

Fred H. Brown, pro se.

WHITE, C.J., CAPORALE, WRIGHT, CONNOLLY, and GERRARD, JJ., and SPRAGUE, District Judge.

PER CURIAM.

This is a lawyer discipline case wherein the relator, Nebraska State Bar Association, seeks to have this court discipline the respondent, Fred H. Brown, a member of the relator association.

SCOPE OF REVIEW

A proceeding to discipline a lawyer is a trial de novo on the record, in which this court reaches a conclusion independent of the findings of the referee; provided, however, that where the credible evidence is in conflict on a material issue of fact, this court considers and may give weight to the fact that the referee heard and observed the witnesses and accepted one version of the facts rather than another. State ex rel. NSBA v. Johnston, 251 Neb. 468, 558 N.W.2d 53 (1997).

FACTS

Brown was duly admitted by this court to the practice of law in the State of Nebraska and to membership in the association on October 28, 1982. On February 19, 1993, he was indicted in the U.S. District Court for the District of Nebraska for the felonies of possessing with the intent to distribute cocaine and of conspiring to distribute cocaine, all in violation of federal law, and with using or intending to use a vehicle to commit or facilitate the same. On February 4, 1994, Brown was convicted of the offenses charged in the indictment, and on February 11, we suspended him from the practice of law.

On July 25, 1994, Brown was sentenced to pay a $10,000 fine, to imprisonment for a term of 15 months, and to supervision upon release from imprisonment for a term of 3 years. In addition, his interest in the vehicle mentioned earlier was forfeited to the U.S. Government. His convictions were affirmed by the U.S. Court of Appeals for the Eighth Circuit in U.S. v. Fregoso, 60 F.3d 1314 (8th Cir.1995). No further appeal was taken.

Brown has served 7 months of the 15-month prison sentence, from August 1994 to March 1995, and remains under supervised release until March 1998. While on supervised release, Brown must comply with the following pertinent conditions:

refrain from excessive use of alcohol and ... not purchase, possess, use, distribute, or administer any narcotic or other controlled substance, or any paraphernalia related to such substances, except as prescribed by a physician;

....

... submit to such testing as may be requested by any person involved in monitoring [Brown's] supervision to detect the presence of alcohol or controlled substances in [his] body fluid and to determine whether [he] has reverted to the use of any prohibited substances.

....

... participate in a program as directed and approved by the U.S. Probation Office for treatment of narcotic addiction, drug or alcohol dependency which will include testing for detection of substance abuse.

On February 28, 1996, the association filed formal charges against Brown, alleging, among other things, that his conduct violated Canon 1, DR 1-102(A)(1), (3), and (6), of the Code of Professional Responsibility, which provides that a lawyer shall not "(1) Violate a Disciplinary Rule.... (3) Engage in illegal conduct involving moral turpitude.... (6) Engage in any other conduct that adversely reflects on his or her fitness to practice law."

Brown filed an answer admitting that he had been convicted of the charged felonies and that the convictions had been affirmed, but denied that his conduct constituted a violation of the code.

The relevant evidence at the federal trial, as summarized by the U.S. Court of Appeals in Fregoso, supra, is that Brown facilitated Dixie Buck's cocaine enterprise. Buck began distributing cocaine in approximately February 1992 and testified that on one occasion when she ran out of cocaine, she called Brown and informed him of her situation. Brown told her to go to a local bar and he would meet her there and possibly be able to help her. She subsequently met Brown and Steve Cymbalista at the bar. Brown and Cymbalista set up a "buy" for her with one of the bar's patrons. Buck gave Brown $250, and Brown in turn gave the money to Cymbalista, who went to the men's room in the bar, bought one-eighth of an ounce of cocaine from the patron, and delivered it to Buck. Further, on several occasions, Brown acted as an informal "debt collector" for Buck by persuading Cymbalista and Mary Cox to pay sums they owed Buck for cocaine. For instance, Buck testified that she sometimes "fronted" cocaine to Cymbalista. When The referee appointed by this court conducted a hearing, at which Brown and two lawyers who had practiced law with him testified. The pertinent portions of Brown's testimony are set forth later in this opinion. Attorney James H. Moylan expressed his opinion that Brown always did an excellent job representing clients. Having seen, observed, and talked with Brown since his convictions, Moylan recommended that Brown be reinstated to practice law and offered to supervise Brown's work if he were readmitted.

Cymbalista [251 Neb. 818] would not pay her for the quantities, she testified that she called Brown, who persuaded Cymbalista to pay her. Brown frequently drove Cox and Cymbalista to Buck's house, where they would purchase cocaine, albeit for their own personal use. Brown was present at Buck's house when various drug transactions and drug use were taking place, frequently joining the activities himself, and he clearly knew the nature of business that was taking place there. Moreover, Buck testified that Brown was aware that she was getting some of her cocaine from others. Brown used Cox or Cymbalista to pick up cocaine from Buck and bring it back to him, after which they would share the drugs. Brown instructed Cox to carry the cocaine in her mouth and swallow it if she was stopped by the police. Brown also acquired cocaine from Buck by himself and shared it with Cox and Cymbalista. Cox witnessed Cymbalista purchase cocaine from Brown on numerous occasions. There was also evidence that Brown (who was representing Buck on her workers' compensation claim) personally delivered Buck's monthly workers' compensation checks to her without charging or deducting any attorney fee (thus indirectly financing her drug distribution business), and when Buck was arrested in Missouri on an unrelated drug charge, Brown provided the bail money. The circuit court concluded that the evidence shows that Brown was no passive purchaser but, instead, played a larger role than merely buying drugs from Buck for his own personal consumption.

Attorney John P. Steichen testified that he had been acquainted with Brown since 1987. Brown had always been considered an excellent lawyer, and Steichen could not recall any of Brown's previous clients ever expressing any dissatisfaction with Brown's representation. Steichen was confident that Brown would still be able to practice law and stated that he, too, would be willing to supervise Brown's work.

The referee found, among other things, that Brown neither acknowledges the nature of his convictions nor shows remorse for his actions, asserting that he was convicted for using and being addicted to cocaine; that the evidence did not support Brown's claim that his drug use and convictions arose from personal problems, including divorce; that as Brown did no more than he was required to do after being suspended, his actions in that regard do not mitigate any discipline to be imposed; and that while the evidence demonstrated that Brown has undergone inpatient and outpatient counseling and treatment for chemical dependency, he did not voluntarily enter treatment until some 5 months after he was indicted and has suffered a relapse, having used cocaine in February 1994. The referee concluded that Brown had violated the code as charged by...