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

• Decision Date: 29 December 1995
• Docket Number: No. S-94-171,S-94-171
• Citation: 249 Neb. 40,541 N.W.2d 53
• Parties: STATE of Nebraska, ex rel., NEBRASKA STATE BAR ASSOCIATION, Relator, v. J. Lincoln WOODARD, Respondent.
• Court: Nebraska Supreme Court

Page 53

541 N.W.2d 53

249 Neb. 40

STATE of Nebraska, ex rel., NEBRASKA STATE BAR ASSOCIATION, Relator, v. J. Lincoln WOODARD, Respondent.

No. S-94-171.

Supreme Court of Nebraska.

Dec. 29, 1995.

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, however, that where the 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: States: Proof. In the context of reciprocal disciplinary proceedings, a judicial determination of attorney misconduct in one state is generally conclusive proof of guilt and is not subject to relitigation in the second state; however, the judicial determination of misconduct in the first state need not be accepted as conclusive proof of guilt if the offender demonstrates to the court in the second state that the procedure in the first state was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process or that there was such an infirmity of proof concerning the misconduct as to give rise to the clear conviction that the final finding of the court in the first state as to the offender's misconduct cannot be accepted.

3. Disciplinary Proceedings: States: Proof. In a reciprocal disciplinary proceeding, even if the first state's judicial determination of misconduct is accepted as conclusive proof of guilt, it does not necessarily 4. Disciplinary Proceedings. Absent mitigating circumstances, the appropriate discipline in cases of misappropriation or commingling of client funds is disbarment.

follow that the offender must be disbarred or suspended in the second state; the second state is entitled to make an independent assessment of the facts and an independent determination of the offender's fitness to practice law in that state and of what disciplinary action is appropriate to protect the interests of the state.

5. Disciplinary Proceedings: Presumptions. Mitigating factors will overcome the presumption of disbarment in misappropriation and commingling cases only if they are extraordinary and, when aggravating circumstances are present, substantially outweigh as well those aggravating circumstances.

6. Disciplinary Proceedings. The fact that no client suffered any financial loss does not excuse the misappropriation of client funds and does not provide a reason for imposing a less severe sanction.

7. Disciplinary Proceedings. Multiple acts of attorney misconduct are distinguishable from isolated incidents and are therefore deserving of more serious sanctions.

Patrick T. O'Brien, of Bauer, Galter, O'Brien, Allan & Butler, Lincoln, for relator.

Michael C. Pallesen and David D. Ernst, of Gaines, Mullen, Pansing & Hogan, Omaha, for respondent.

CAPORALE, LANPHIER, CONNOLLY, and GERRARD, JJ., and FUHRMAN, D.J., and NORTON and WARREN, D.JJ., Retired.

PER CURIAM.

This is an attorney reciprocal discipline case in which the relator, Nebraska State Bar Association, seeks to disbar respondent, J. Lincoln Woodard, in this state on the basis that he was disbarred in the District of Columbia. The sole issue is whether Woodard has carried his burden of establishing that the discipline to be imposed here should be less than that imposed by the District of Columbia. We determine that Woodard has not met that burden and therefore disbar him, effective immediately.

SCOPE OF REVIEW

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, however, that where the 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. Ogborn, 248 Neb. 767, 539 N.W.2d 628 (1995); State ex rel. NSBA v. Veith, 238 Neb. 239, 470 N.W.2d 549 (1991).

FACTS

Woodard, who was admitted to the Nebraska and the District of Columbia bars, was later disbarred by the District of Columbia Court of Appeals. In re Woodard, 636 A.2d 969 (D.C.App.1994). The District of Columbia court found that Woodard "recklessly and carelessly" misappropriated the funds of four clients, in violation of Canon 9, DR 9-103(A), of the applicable Code of Professional Responsibility; that he commingled the funds of four clients, in violation of DR 9-103(B)(3); and that he failed to maintain complete records and render appropriate accounts for two clients, in violation of DR 9-103(B)(4). Woodard admitted misappropriating the funds of three clients and commingling funds. He did not contest the charges of failure to maintain complete records and render appropriate accounts.

In those proceedings, Woodard claimed in mitigation that during the relevant period of time, he was addicted to prescription drugs, that his misconduct was substantially caused by that addiction, and that he is now substantially rehabilitated. Woodard urged the court to mitigate the usual sanction of disbarment and allow him to continue in the practice of law under restrictive conditions. The District of Columbia court rejected Woodard's mitigation claim, finding that Woodard had failed to establish that his addiction substantially affected his professional conduct or that he was substantially rehabilitated.

Shortly thereafter, the relator, pursuant to Neb. Ct. R. of Discipline 21(A) (rev.1992), sought an order from this court disbarring Woodard in this state. We then issued an order directing Woodard to show cause why he should not be disbarred, and temporarily suspended him from the practice of law in the State of Nebraska. Woodard filed a response, raising in mitigation his addiction to prescription drugs, and we appointed a referee.

Following a number of evidentiary hearings, the referee noted that just as Woodard had done in the District of Columbia proceedings, he here admitted misappropriating and commingling the funds of three clients and did not contest the charges regarding his failure to keep complete records and render appropriate accountings. Noting that Woodard did not claim his due process rights were violated in the District of Columbia proceedings, the referee found that Woodard had waived any due process or infirmity of proof issue. The referee also accepted the findings of the District of Columbia as conclusive proof of Woodard's misconduct.

As he did in the District of Columbia proceedings, Woodard asserted before the referee here that his professional conduct was substantially affected by his use and abuse of benzodiazepine drugs during the time of the misconduct, specifically from the fall of 1988 to the spring of 1989. Woodard also maintained that he has not ingested such drugs, except for medically necessary treatment, since January 1990 and contended that he has been rehabilitated and is alcohol and drug free. Woodard argued that the sanction imposed upon him should thus be mitigated.

After reviewing the record of the District of Columbia proceedings and the testimony, the referee found that Woodard was addicted to benzodiazepine medications during the time of the misconduct and that Woodard's addiction was a contributing factor to the charged misconduct. The referee also found the evidence supported a finding that Woodard has been free of alcohol abuse since 1983 and from the nonprescribed and nonmedically required use of benzodiazepine since January 1990. In addition, the referee concluded that the termination of use of alcohol and benzodiazepine was a mitigating factor.

The referee noted as well that Woodard provided restitution to his clients (although he did not do so until he was charged or threatened with discipline) and that Woodard's former clients suffered no continuing or permanent harm. The referee also took notice of the numerous affidavits expressing support for Woodard.

Nonetheless, the referee did not find "significant mitigating evidence to warrant discipline other than [disbarment]." He thus determined that Woodard had not demonstrated the requisite fitness to practice law and recommended that Woodard be disbarred in the State of Nebraska.

In taking exception to the referee's findings and recommendation, Woodard argues that his termination of drug and alcohol abuse constitutes not merely a "mitigating factor" but a "significant mitigating factor." Woodard also contends that the referee did not give sufficient weight to the other mitigating factors noted above.

In the context of reciprocal disciplinary proceedings, a judicial determination of attorney misconduct in one state is generally conclusive proof of guilt and is not subject to relitigation in the second state. However, the judicial determination of misconduct in the first state need not be accepted as conclusive proof of guilt if the offender demonstrates to the court in the second state that the procedure in the first state was so lacking in notice or opportunity to be heard as to constitute a...