State ex rel. Nebraska State Bar Ass'n v. Miller, No. 86-108

• Court: Supreme Court of Nebraska
• Writing for the Court: KRIVOSHA; PER CURIAM
• Citation: 404 N.W.2d 40,225 Neb. 261
• Docket Number: No. 86-108
• Decision Date: 17 April 1987
• Parties: STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. James P. MILLER, Respondent.

Page 40

404 N.W.2d 40 225 Neb. 261 STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator,
v.
James P. MILLER, Respondent. No. 86-108. Supreme Court of Nebraska. April 17, 1987. Syllabus by the Court

1. Disciplinary Proceedings. A proceeding to discipline a lawyer is a trial de novo on the record.

2. 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.

3. Disciplinary Proceedings. To determine whether and to what extent discipline should be imposed, it is necessary that the Supreme Court consider 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 present or future fitness to continue in the practice of law.

4. Disciplinary Proceedings. Mitigating circumstances shown in the record should be considered in determining an appropriate discipline.

5. Disciplinary Proceedings. To determine what sanction is appropriate, each case justifying discipline of an attorney must be evaluated individually in the light of the particular facts and circumstances.

6. Disciplinary Proceedings: Restitution: Conversion. While an attorney's

Page 41

restitution of a client's converted funds prior to being faced with accountability may not exonerate such misconduct, restitution prior to complaint or prospective accountability is a significant mitigating factor to be considered in determining an appropriate sanction for an attorney's conversion of a client's funds.

Dennis G. Carlson, Lincoln, Counsel for Discipline, and Alison L. Larson, Lincoln, for relator.

[225 Neb. 262] John J. Reefe, Jr., Omaha, for respondent.

KRIVOSHA, C.J., and BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

PER CURIAM.

This is an original disciplinary proceeding against James P. Miller, an attorney admitted to practice in Nebraska. Pursuant to an application by the Committee on Inquiry of the Second Disciplinary District of the Nebraska State Bar Association, this court, on February 6, 1986, temporarily suspended Miller from practicing law in the State of Nebraska, see Neb.Ct.R. of Disc. 12 (rev. 1986), such suspension to continue until further order of this court. On April 16, 1986, the Committee on Inquiry held a hearing concerning the complaint against Miller and adopted formal charges against Miller, which charges were subsequently adopted by the Disciplinary Review Board. See Neb.Ct.R. of Disc. 9 (rev. 1986). The referee appointed by this court has filed a report containing findings and recommendations.

In 1970, Miller was admitted to practice in Nebraska and was elected Sarpy County public defender in 1980, an office which he held until his resignation on January 15, 1986, before this court's order of temporary suspension.

On July 14, 1982, Rosemary Mills accepted appointment as the personal representative of the estate of Stanley Mazur, deceased, and retained Miller to act as attorney for the personal representative. On October 22, 1982, Miller drew a check on the estate's account at Bell Federal Credit Union, in the amount of $19,486.38, payable to "Rosemary Mills, Administratrix of the estate of Stanley Mazur." Without Mills' permission, Miller endorsed the estate check "Rosemary Mills PR." Rather than depositing that check in a trust account, Miller deposited the check in his combined personal and business checking account and later wrote checks, reducing the balance of the account to $19.27 on December 1, 1982, but never paid the Stanley Mazur estate or any Mazur devisee anything from the proceeds realized by the estate check in question. Subsequently, without complaint concerning the deposit of the estate check in Miller's account, Miller borrowed funds and, by June of 1983, had paid [225 Neb. 263] all Mazur devisees the amounts due them from the Stanley Mazur estate.

After a complaint by Miller's former associate, the Counsel for Discipline of the Nebraska State Bar Association commenced an investigation on November 16, 1985. Neither Mills, as personal representative of the Stanley Mazur estate, nor any Mazur devisee complained about Miller's conversion of estate funds.

At the hearing before the Committee on Inquiry, Miller admitted that he had endorsed the estate check with Rosemary Mills' name and deposited the estate check in his checking account for his own use. Miller did not contest the seriousness of his conduct. Throughout the time when Miller was acting as attorney for the personal representative, Miller extensively used alcohol and amphetamines, which affected his conduct as an attorney involved in the probate proceedings. The record does not disclose that the amphetamines were medically prescribed for any condition in Miller. At times Miller would suffer "blackouts" and would "become aware I was someplace and have no idea how I got there or what had happened in the intervening hour or two." However, as the result of his association with Alcoholics Anonymous, Miller stopped drinking alcohol and ceased using drugs in May 1983.

The formal charges alleged that Miller has violated his oath as an attorney, see

Page 42

Neb.Rev.Stat. § 7-104 (Reissue 1983), and certain provisions of the Code of Professional Responsibility, namely:

DR 1-102 Misconduct.

(A) A lawyer shall not:

(1) Violate a Disciplinary Rule.

....

(3) Engage in illegal conduct involving moral turpitude.

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

(5) Engage in conduct that is prejudicial to the administration of justice.

(6) Engage in any other conduct that adversely reflects on his fitness to practice law.

And:

[225 Neb. 264] DR 9-102 Preserving Identity of Funds and Property of a Client.

(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:

(1) Funds reasonably sufficient to pay bank charges may be deposited therein.

(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law...