State ex rel. Nebraska State Bar Ass'n v. Kirshen
| Decision Date | 09 June 1989 |
| Docket Number | No. 87-546,87-546 |
| Citation | 441 N.W.2d 161,232 Neb. 445 |
| Parties | STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Alan H. KIRSHEN, Respondent. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Disciplinary Proceedings: Appeal and Error. A proceeding to discipline an attorney is a trial de novo on the record, in which the Supreme Court reaches a conclusion independent of the findings of the referee, provided, where credible evidence is in conflict on a material issue of fact, the Supreme 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: Proof: Appeal and Error. In its de novo review of the record in a disciplinary proceeding against an attorney, and to sustain a particular complaint against an attorney, the Supreme Court must find that the complaint has been established by clear and convincing evidence.
3. Disciplinary Proceedings. In a disciplinary proceeding against an attorney, the basic issues are whether discipline should be imposed and, if so, the type of discipline appropriate under the circumstances.
4. Disciplinary Proceedings: Due Process. A lawyer is entitled to due process of law in a disciplinary proceeding.
5. Due Process: Notice. Due process requires that adjudication be preceded by notice and an opportunity to be heard which is fair in view of the circumstances and conditions existent at the time.
6. Disciplinary Proceedings: Due Process. Since a disciplinary rule is promulgated for the purpose of guiding lawyers in their professional conduct and is not directed to the public at large, the central consideration in resolving a vagueness challenge should be whether the nature of the proscribed conduct encompassed by the rule is readily understandable to a licensed lawyer.
7. Attorney and Client. A lawyer is ultimately responsible for the conduct of his employees and associates in the course of the professional representation of the client.
8. Disciplinary Proceedings: Evidence: Appeal and Error. In disciplinary action, which is a trial de novo on the record, the Supreme Court will not consider irrelevant evidence or evidence which was erroneously admitted.
9. Res Judicata: Actions: Judgments. The doctrine of res judicata applies when the same cause of action is sought to be litigated a second time. The doctrine rests upon the principle that a final judgment on the merits by a court of competent jurisdiction is conclusive upon the parties in any later litigation involving the same cause of action.
10. Disciplinary Proceedings. The nature and extent of discipline to be imposed is determined by a consideration of the nature of the offense, the need for deterring others, the maintenance of the reputation of the bar as a whole, the protection of the public, the attitude of the offender generally, and his or her present or future fitness to continue in the practice of law.
11. Disciplinary Proceedings. Cumulative acts of misconduct are distinguishable from isolated incidents of neglect and therefore justify more serious sanctions.
12. Disciplinary Proceedings. Violation of any of the ethical standards relating to the practice of law or any conduct of an attorney which tends to bring reproach on the courts or the legal profession constitutes grounds for suspension or disbarment.
David L. Herzog, Sp. Prosecutor, for relator.
James L. Rold of Rold & Peppard, Omaha, for respondent.
This is an original proceeding wherein the Nebraska State Bar Association (NSBA), relator, filed formal charges in this court against respondent, Alan H. Kirshen. The formal charges were based on three separate complaints made to the Counsel for Discipline for the NSBA. Counts I and II of the formal charges allege that respondent failed to timely respond to two of the complaints, in violation of Canon 1, DR 1-102, of the Code of Professional Responsibility. Count III alleges that respondent failed to act competently, failed to represent his client zealously, and charged an illegal or excessive fee in connection with an estate proceeding, in violation of DR 1-102; Canon 6, DR 6-101; Canon 7, DR 7-101; and Canon 2, DR 2-106, of the Code of Professional Responsibility.
These proceedings began before the Committee on Inquiry of the Second Disciplinary District (Committee) on charges filed on September 5, 1986, by Alison L. Larson, Assistant Counsel for Discipline. Five charges were originally filed before the Committee. The three counts tried before the Committee, and later formally charged, alleged that respondent (1) failed to act competently and failed to timely respond to a complaint made by Mrs. Roy Nuttelman; (2) failed to act competently and failed to timely respond to a complaint made by JaVee Suhr, a court reporter; and (3) neglected and failed to timely close the estate of Medalo Tapia and engaged in conduct that adversely reflected on his fitness to practice law in connection with the estate proceedings.
A hearing was held before the Committee on March 18, 1987, on the Nuttelman, Suhr, and estate of Tapia matters. On April 15, 1987, the Committee transmitted to the NSBA Disciplinary Review Board (Board) formal charges against the respondent.
The Board reviewed the record of the Committee hearing with respect to the allegations contained in the formal charges. On June 10, 1987, the Board determined that there were reasonable grounds for discipline and that a reprimand would not be an appropriate remedy, and submitted the formal charges to this court.
On September 21, 1987, Larson was granted leave to withdraw as attorney for relator because it appeared she would be a witness at the hearing. David Herzog was appointed special prosecutor. On October 13, J. Terry Macnamara was appointed referee. The matter was heard before the referee on June 28 and 29, 1988.
The referee's report was filed on September 7, 1988, and recommended that respondent be suspended from the practice of law for 1 year. Respondent filed exceptions to the report, objecting to the report in numerous particulars and alleging constitutional, evidentiary, and other defects in these disciplinary proceedings.
Respondent further contends that the punishment recommended by the referee was too harsh. For the reasons stated hereinafter, we determine that respondent should be disciplined and that the sanction recommended by the referee was inadequate in view of respondent's actions.
A proceeding to discipline an attorney is a trial de novo on the record, in which the Supreme Court reaches a conclusion independent of the findings of the referee, provided, where credible evidence is in conflict on a material issue of fact, the Supreme 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. Douglas, 227 Neb. 1, 416 N.W.2d 515 (1987), cert. denied 488 U.S. 802, 109 S.Ct. 31, 102 L.Ed.2d 10 (1988). In its de novo review of the record in a disciplinary proceeding against an attorney, and to sustain a particular complaint against an attorney, the Supreme Court must find that the complaint has
been established by clear and convincing evidence. Id. In a disciplinary proceeding against an attorney, the basic issues are whether discipline should be imposed and, if so, the type of discipline appropriate under the circumstances. Id.
Count I of the formal charges alleges:
1. That on or about the 16th day of April, 1979, the Respondent, Alan H. Kirshen, was duly admitted to the practice of law in the State of Nebraska, by the Supreme Court of the State of Nebraska.
2. That on or about April 30, 1986, the Counsel for Discipline received a written letter of complaint against the Respondent by Mrs. Roy Nuttelman.
3. That on or about May 1, 1986, the Respondent received notice that he was the subject of a complaint written to the Counsel for Discipline with an attached copy of Mrs. Nuttelman's complaint. Furthermore, the Respondent, pursuant to the Rules of Disciplinary Proceedings, was notified that he had fifteen (15) working days to send an appropriate written response to Mrs. Nuttelman's complaint to the Counsel for Discipline.
4. That the Respondent failed to timely file a response to the complaint of Mrs. Nuttelman with the Counsel for Discipline's Office.
That the actions of the Respondent, as set forth above, constitute a violation of his Oath of Office, as an attorney licensed to practice law in the State of Nebraska, as provided by Section 7-104 R.R.S.1977, and are in violation of the following provisions of the Code of Professional Responsibility, to-wit:
DR 1-102 Misconduct.
(A) A lawyer shall not:
1. Violate a Disciplinary Rule.
. Engage in any other conduct that adversely reflects on his fitness to practice law.
Count II of the formal charges alleges:
2. That on or about February 21, 1986, the Counsel for Discipline received a written letter of complaint against the Respondent by Ms. JaVee Suhr on behalf of Thibault, Suhr & Thibault, Inc., a free-lance court reporting firm.
3. That on or about February 21, 1986, the Assistant Counsel for Discipline wrote to the Respondent and requested a response to Ms. Suhr's letter of complaint. That on or about April 24, 1986, May 20, 1986, and June 11, 1986, the Assistant Counsel for Discipline again notified the Respondent by letter that he was the subject of a complaint written to the Counsel for Discipline by Ms. Suhr and requested an immediate appropriate response.
4. That the Respondent failed to timely file a response to the complaint of Ms. Suhr.
As in count I, count II further alleges that respondent's actions constituted a violation of his oath of office as an attorney and...
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