State ex rel. Nebraska State Bar Ass'n v. Johnson
| Decision Date | 19 March 1999 |
| Docket Number | No. S-98-465,S-98-465 |
| Citation | 256 Neb. 495,590 N.W.2d 849 |
| Parties | STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Brian L. JOHNSON, 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 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: Proof. The charges against an attorney in a disciplinary proceeding must be established by clear and convincing evidence.
3. Disciplinary Proceedings: Appeal and Error. In a disciplinary proceeding, the Nebraska Supreme Court will not consider a party's objections to findings and conclusions of the referee where the party did not take exception to those findings or conclusions in his or her response to the referee's report.
4. Disciplinary Proceedings. To determine whether and to what extent discipline should be imposed in a lawyer discipline proceeding, the Nebraska Supreme Court considers the following facts: (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. Each case justifying discipline of an attorney must be evaluated individually in light of the particular facts and circumstances of that case.
5. Disciplinary Proceedings. For purposes of determining the proper discipline in a disciplinary proceeding, we consider a party's acts both underlying the offenses and throughout the disciplinary proceeding.
6. Disciplinary Proceedings. Cumulative acts of attorney misconduct are distinguishable from isolated incidents of neglect and therefore justify more serious sanctions.
7. Disciplinary Proceedings. Repeated derogatory and inflammatory statements made by a party in a disciplinary proceeding will be taken into consideration in determining an appropriate penalty.
8. Disciplinary Proceedings. The determination of an appropriate penalty to be imposed on an attorney also requires consideration of any mitigating factors.
John W. Steele, Assistant Counsel for Discipline, Lincoln, for relator.
Brian L. Johnson, pro se.
This is an attorney disciplinary case in which the Nebraska State Bar Association (NSBA), relator, seeks to discipline Brian L. Johnson, respondent.
On May 15, 1998, the Committee on Inquiry of the Third Disciplinary District filed formal charges against respondent. The committee alleged that while representing defendants in a criminal proceeding in 1997, respondent violated Canon 1, DR 1-102(A)(1) and (5), Canon 2, DR 2-110(A)(1) through (3), and Canon 6, DR 6-101(A)(3), of the Code of Professional Responsibility. Pursuant to Neb.Ct.R. of Discipline 10(F), the NSBA filed additional charges alleging that while representing Darrin Hofmann in a specific performance case in 1997, respondent violated the same provisions of the Code of Professional Responsibility as stated above. The relevant provisions of the Code of Professional Responsibility are as follows:
DR 1-102 Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
....
(5) Engage in conduct that is prejudicial to the administration of justice....
....
DR 2-110 Withdrawal from Employment.
(A) In general.
(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.
(2) In any event, a lawyer shall not withdraw from employment until the lawyer has taken reasonable steps to avoid foreseeable prejudice to the rights of his or her client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.
(3) A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.
....
DR 6-101 Failing to Act Competently.
(A) A lawyer shall not:
....
(3) Neglect a legal matter entrusted to him or her.
In his answer to the charges, respondent filed a counterclaim against the NSBA, seeking money damages. This court has stricken the counterclaim.
This court referred the matter to a referee, pursuant to Neb.Ct.R. of Discipline 10(J) (rev.1996). The referee conducted a formal evidentiary hearing on August 27, 1998, which respondent did not attend. Respondent had informed the referee that he would not attend the hearing before the referee unless he was given an assurance that he would not be questioned.
The referee found that the evidence clearly and conclusively established that respondent violated his oath and violated all six disciplinary rules stated above both in his representation of the defendants in the criminal proceeding and in his representation of Hofmann. In addition to these determinations, the referee noted a concern with respondent's attitude throughout the disciplinary proceeding, finding that he "remains generally unrepentant and ... tends to point the blame at everyone but himself, and his general decorum and responsiveness to the entire situation reflects poorly on his past and future ability to practice law." The referee recommended that respondent be suspended from the practice of law for 2 years and that he should not be readmitted without completing a course on ethics.
In his response to the referee's report, respondent took no exception to the referee's factual findings or the referee's determinations that respondent violated certain disciplinary rules. Regarding the recommended suspension, respondent agreed that he should be suspended and added that he should also be publicly censured, but asserted that the suspension should be variable and should end upon his completion of a 100-page dissertation regarding ethics, with the specific
subject to be determined by this court. However, in his brief to this court, respondent (1) asserts that the referee did not consider certain mitigating evidence; (2) provides justifications for his actions; and (3) argues that in his representation of Hofmann, respondent[256 Neb. 498] did not violate any disciplinary rule. The NSBA took no exception to the referee's report.
A proceeding to discipline an attorney 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. State ex rel. NSBA v. Malcom, 252 Neb. 263, 561 N.W.2d 237 (1997); State ex rel. NSBA v. Johnston, 251 Neb. 468, 558 N.W.2d 53 (1997). The charges against an attorney must be established by clear and convincing evidence. See State ex rel. NSBA v. Johnston, supra.
Because respondent did not attend the hearing before the referee and did not take exception to the referee's determinations other than the recommended discipline, we do not address his arguments in his brief that contest the referee's findings. See State ex rel. NSBA v. Schmeling, 247 Neb. 735, 529 N.W.2d 799 (1995). We nonetheless conduct a de novo review of the record, and upon our review, we find the following facts:
Respondent was admitted to the practice of law in the State of Nebraska on September 28, 1995. At all times relevant to this matter, respondent was engaged in the private practice of law in Madison County, Nebraska.
Respondent was retained by five individuals to represent them on minor in possession charges. They each paid him a fee in advance. Respondent appeared with his clients at their arraignments. He filed a motion to suppress evidence on behalf of each client. The hearing on the motion to suppress was scheduled for June 30, 1997. The clients appeared, but respondent did not. The clients waited at the courthouse and repeatedly tried to contact him. Eric Ford, one of the clients, testified that they reached respondent's secretary but that the secretary did not know where respondent was. Respondent did not contact the court or any of his clients to explain his absence. The county court continued the hearing until July 7.
On July 3 and 7, 1997, respondent filed motions to withdraw as attorney of record for the defendants, but did not attach an affidavit stating that he informed his clients of the motions to withdraw. In fact, he did not notify any of the five clients that he was withdrawing. The motions stated that he did not attend the suppression hearing because a power failure caused his clocks to fail. Respondent explained that he could no longer represent the clients because of the sale of his office building and because of conflicts with scheduled hearings. He did not appear at the hearing on July 7, although he was still attorney of record. Some of the clients unsuccessfully asserted the motion to suppress pro se, and all of the clients eventually pled guilty. When asked by one client for his money back, respondent wrote to the client stating,
A flat fee is non-refundable.... A hearing on the suppression issue would have cost you considerably more....
I was forced to withdraw from this case through no fault of my own. The Madison County Court Judge would not let me change my local court case...
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