State ex rel. Nebraska State Bar Ass'n v. Hollstein

• Decision Date: 10 January 1979
• Docket Number: No. 41124,41124
• Citation: State ex rel. Nebraska State Bar Ass'n v. Hollstein, 274 N.W.2d 508, 202 Neb. 40 (Neb. 1979)
• Parties: STATE ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Edmund HOLLSTEIN, Respondent.
• Court: Nebraska Supreme Court

Page 508

274 N.W.2d 508

202 Neb. 40

STATE ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Edmund HOLLSTEIN, Respondent.

No. 41124.

Supreme Court of Nebraska.

Jan. 10, 1979.

Syllabus by the Court

1. In disciplinary proceedings of members of the bar, the relator must establish the allegations in the formal charges by a preponderance of the evidence, so that the court is satisfied to a reasonable certainty that the charges are true.

2. In disciplinary proceedings of members of the bar the findings must be sustained by a higher degree of proof than that required in civil actions yet falling short of the proof required to sustain a conviction in a criminal action.

3. In a proceeding for the disbarment of an attorney at law the presumption of innocence applies, and the charge made against him must be established by a clear preponderance of the evidence.

4. An attorney should not only avoid impropriety but should avoid the appearance of impropriety.

5. DR7-104(A)(1) provides that during the course of his representation of a client a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

6. A city or village attorney whose duties include prosecuting violations of ordinances and state statutes may not voluntarily represent anyone charged with a crime, unless his employment as attorney for a defendant is approved by an order of the court in which the case is pending.

7. Ignorance of the law is no excuse. It applies with even greater emphasis to an attorney at law who is expected to be learned in the law. It should be particularly applicable to a city attorney who should make himself conversant with the duties of his office. A city attorney should also be aware of disciplinary rules and advisory opinions, particularly those applicable to his duties as a public officer such as a county or city attorney.

8. The evidence adduced in a disciplinary proceeding is reviewed de novo in this court to determine if discipline should be imposed, and, if it should, the extent thereof.

M. J. Bruckner of Marti, Dalton, Bruckner, O'Gara & Keating, Lincoln, for respondent.

Paul L. Douglas, Atty. Gen., and C. C. Sheldon, Asst. Atty. Gen., for relator.

Heard before SPENCER, C. J., Pro Tem., BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ., and KUNS, Retired District Judge.

BRODKEY, Justice.

This is an original disciplinary proceeding brought in the name of the State of Nebraska on relation of the Nebraska State Bar Association against Edmund Hollstein, a lawyer duly admitted and licensed to practice his profession in this state.

Formal charges were filed against the respondent in this court on October 28, 1976, alleging respondent had violated DR1-102(A)(5) and (6); DR5-103(A); DR5-104; DR5-105(A) and (B); DR7-101(A)(1); DR7-102(A)(3) and DR7-104(A)(1) and (2) of the Code of Professional Responsibility of the Nebraska State Bar Association. The respondent was also charged with violating EC5-7 and EC8-8 of that code.

The referee appointed by this court held a hearing on the formal charges in the Sheridan County courthouse at Rushville, Nebraska, on June 23, 1977, and filed his report in this court on February 22, 1978. He found that the respondent had violated the aforementioned disciplinary rules as set out in Counts I to V of the formal charges (with the exception of one of the charges contained in Count I), and recommended that respondent be suspended from the practice of law for a period of two (2) years. Respondent has filed exceptions to the report of the referee, and the matter is now before us for review of his report.

Before discussing the merits of the allegations contained in the five counts of the formal charges against the respondent, it will be helpful to examine the background for those charges. With the exception of the allegation contained in Count V of the formal charges, all of the other charges arise out of dealings he had with various members of the Robins family, longtime Sheridan County residents. Bennett Robins and his wife, Frieda, were married on June 7, 1916. They had four children, including two sons, Clifford and Leonard. Leonard was a mongoloid child who was unable to care for himself to any significant degree. Both Bennett Robins and Leonard Robins are now deceased. Bennett and Frieda owned a branch consisting of approximately 6,000 acres in Sheridan County.

April 1, 1959, Frieda commenced an action for divorce against her husband, Bennett Robins, and respondent represented Frieda in that action. The decree entered in that case on April 18, 1961, awarded and set over the Robins ranch to Bennett Robins, and provided, among other things: "That the responsibility for paying for the care, custody, control and supervision and the education of Leonard Edwin Robins, son of said parties shall be and hereby is charged and confided to the defendant (Bennett Robins) and that said party is ordered, as long as is necessary, to support and provide for said son, in the same manner that he has been doing for many years last past." Since respondent participated in the preparation of the divorce decree, and also the stipulation upon which it was based, it is clear that he was aware of the provision imposing the obligation for support of Leonard upon the defendant, Bennett Robins.

Approximately 1 month later, on May 29, 1961, Bennett Robins contracted to sell the ranch to his son Clifford for a price equal to an appraisal made by the Federal Land Bank. In order to acquire a loan from the Federal Land Bank, it was necessary that the judgment lien for the care of Leonard be subordinated to the lien of the Federal Land Bank. On June 1, 1962, Bennett made an application to the District Court for Sheridan County to modify the aforementioned divorce decree so as to make the "potential lien of care for Leonard Edwin Robins to be junior and inferior to said lien of said Federal Land Bank of Omaha." In support of the application for modification, Clifford filed an affidavit agreeing to assume the potential lien for the support of his brother if his father should default. The court modified the divorce decree on June 4, 1962, providing, among other things: "It is further ordered that subject to the lien of said Land Bank mortgage, the real estate sold by defendant to Clifford Robins shall be changed (sic) with the lien for the support of said incompetent until discharged by the death of said incompetent or otherwise as provided by law; * * *." The court, however, did not transfer the responsibility for the care of Leonard to Clifford Robins. Respondent did not represent any of the parties in this proceeding, but was aware of the lien for support of Leonard by discussions he had with Bennett and Clifford. Bennett deeded the ranch to Clifford on June 12, 1962, and on August 30, 1962, Clifford and his wife, Dorothy, gave a mortgage to Bennett in the amount of $36,000, which mortgage was secured by the ranch but was expressly made junior and inferior to existing liens of record. Respondent did not draft any of the documents involved in these transactions nor represent any of the parties thereto.

However, the record reveals that respondent did represent Clifford Robins in a guardianship proceeding for Leonard Robins. He drafted the necessary documents for that purpose, and on September 9, 1963, filed the petition in the county court of Sheridan County requesting that the court appoint Clifford as Leonard's guardian; and on November 17, 1963, the court entered an order to that effect. Apparently, the guardianship was set up so Clifford could obtain state aid for Leonard, his incompetent brother. Although it is claimed the guardianship was inactive and that nothing further was ever done in connection with the guardianship after Clifford was appointed guardian, the record does not reveal the guardianship was closed or that Clifford was discharged as guardian. As a matter of law, at all times involved herein, Clifford was the legal guardian of Leonard.

Next, in the chronology of events, it appears that on September 16, 1970, Dorothy Robins filed a petition for divorce against her husband, Clifford, in the District Court for Sheridan County. A divorce decree was entered on February 8, 1971. Prior to filing the petition, both parties had contacted respondent concerning representation; but the respondent, because of his friendship with both parties, declined to represent either of them, and recommended that they obtain their own respective counsel. Dorothy then retained Michael Smith as her attorney, and Clifford retained Gordon Shaffer. The decree provided for specified payments of child support for each of the four children, and alimony to Dorothy, payable in installments, and specifically provided that the settlement be secured by the Robins ranch.

Although respondent did not represent Clifford or Dorothy in their divorce proceedings, it is clear from the record that he did represent Clifford Robins both before and after July 20, 1972, on which date respondent and/or his wife obtained a proprietary interest in the Robins ranch under the circumstances hereinafter related. In this connection, respondent concedes and acknowledges that the interest obtained in the transaction was really his, notwithstanding the fact that his wife's name appears as grantee in the conveyance in question.

The events leading up to the transactions on July 20, 1972, are that on April 5, 1972, Clifford Robins, who had apparently decided to abandon his ranching operations and to commence racing dogs, leased a portion of the ranch to one Don Forney. The lease was drawn by respondent and gave Forney the right of first refusal in the event Clifford decided to sell the ranch. Shortly thereafter, Clifford became...