State ex rel. Nebraska State Bar Ass'n v. Michaelis, 42820

• Decision Date: 12 February 1982
• Docket Number: No. 42820,42820
• Citation: 210 Neb. 545,316 N.W.2d 46
• Parties: , 26 A.L.R.4th 154 STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Kenneth Lee MICHAELIS, Respondent.
• Court: Nebraska Supreme Court

Page 46

316 N.W.2d 46

210 Neb. 545, 26 A.L.R.4th 154

STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Kenneth Lee MICHAELIS, Respondent.

No. 42820.

Supreme Court of Nebraska.

Feb. 12, 1982.

Syllabus by the Court

1. Attorneys at Law: Disciplinary Proceedings: Proof. In disciplinary proceedings of members of the bar, the relator must establish the allegations in the formal charges by a clear preponderance of the evidence so the court is satisfied to a reasonable certainty that the charges are true.

2. Attorneys at Law: Disciplinary Proceedings: Proof. In disciplinary proceedings 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 case.

3. Attorneys at Law: Disciplinary Proceedings: Proof. 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. Attorneys at Law: Disciplinary Proceedings: Appeal and Error. To determine whether and to what extent discipline should be imposed in a disbarment proceeding, it is necessary for this court to review the evidence de novo, considering the nature of the offense, the need for deterrence of others, maintenance of the reputation of the bar as a whole, protection of the public, the attitude of the offender generally, and his present or future fitness to continue in the practice of law.

5. Attorneys at Law: Disciplinary Proceedings. An attorney at law may be subjected to disciplinary action for conduct outside the practice of law or the representation of clients.

6. Attorneys at Law: Disciplinary Proceedings. An attorney may be disciplined for criticism in the heat of a political contest if such criticism is carried beyond the limits of truth and fairness.

Paul L. Douglas, Atty. Gen., and Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for relator.

Kenneth Lee Michaelis, pro se.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, and HASTINGS, JJ.

PER CURIAM.

This is an original disciplinary proceeding brought against the respondent, Kenneth L. Michaelis, an attorney admitted to practice in this state by the State of Nebraska ex rel. Nebraska State Bar Association, the relator herein.

Following hearings held before the Committee on Inquiry of the Ninth Judicial District and The Advisory Committee, formal charges were filed against the respondent on November 29, 1978, arising out of his conduct during a 1978 campaign for the office of Cuming County attorney. The formal charges consist of four counts alleging that the respondent had violated the following Canons of Ethics and Disciplinary Rules of the Code of Professional Responsibility: Canon 1, DR 1-102(A)(1), (4), (5), and (6); DR 1-103(A); and Canon 2, DR 2-101(A). Additionally, upon the motion of the relator, four more charges were filed against the respondent relating to statements he made and his conduct during the pendency of this disciplinary proceeding. The additional charges allege that the respondent violated Canon 1, DR 1-102(A)(1), (5) and (6), and Canon 8, DR 8-102(B). In each instance it is alleged that the respondent engaged in conduct prejudicial to the administration of justice or in conduct tending to bring reproach, discredit, and disrespect upon himself, the courts, and the legal profession.

The referee appointed by this court held a hearing on the formal charges on June 30, 1980, and a hearing was held on the additional charges filed against respondent on February 24, 1981. The referee filed his report with this court on April 7, 1981, in which report he found that the respondent had violated the aforementioned disciplinary rules as set out in the charges. In his report filed in this matter with this court on April 7, 1981, the referee concludes by stating: "This Referee has been waiting for some evidence of sorrow or regret on the part of the Respondent that would give some assurance that the conduct herein disclosed will not be repeated. There have been no such expressions of regret nor has there been any retraction by the Respondent of any of the charges he has made. His conduct before this Referee in several hearings has been exemplary and it has been difficult to associate the Respondent before us as the author of the documents received in evidence. This is some basis for hope of reformation. I have in my mind touched upon the thought of recommending outright disbarment but having regard to the short time this Respondent has been engaged in practice, his youth, having regard to the economic stake he has in his period of training and education for a legal career extended over his possible lifetime, and the well being of members of his family, and remembering also that it is not the purpose by this proceeding to punish but rather to reform, I recommend that the Respondent be suspended from practice in this State for a period of one year." Respondent has filed exceptions to the report of the referee and the matter has now been argued before this court.

Before discussing the merits of the allegations contained in the charges against the respondent, it will be helpful to set out established standards which govern the review by this court in disciplinary proceedings. We have held that the relator must establish the allegations in the formal charges by a clear preponderance of the evidence, so the court is satisfied to a reasonable certainty that the charges are true. State ex rel. Nebraska State Bar Ass'n v. Hollstein, 202 Neb. 40, 274 N.W.2d 508 (1979); State ex rel. Nebraska State Bar Ass'n v. Rhodes, 177 Neb. 650, 131 N.W.2d 118 (1964). 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 case. State ex rel. Nebraska State Bar Ass'n v. Hollstein, supra; State ex rel. Nebraska State Bar Ass'n v. Richards, 165 Neb. 80, 84 N.W.2d 136 (1957). 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. State ex rel. Nebraska State Bar Ass'n v. Hollstein, supra; State ex rel. Nebraska State Bar Ass'n v. Pinkett, 157 Neb. 509, 60 N.W.2d 641 (1953). To determine whether and to what extent discipline should be imposed in a disbarment proceeding, it is necessary for this court to review the evidence de novo, considering the nature of the offense, the need for deterrence of others, maintenance of the reputation of the bar as a whole, protection of the public, the attitude of the offender generally, and his present or future fitness to continue in the practice of law. State ex rel. Nebraska State Bar Ass'n v. Erickson, 204 Neb. 692, 285 N.W.2d 105 (1979); State ex rel. Nebraska State Bar Ass'n v. Cook, 194 Neb. 364, 232 N.W.2d 120 (1975).

Turning to the formal charges originally filed against the respondent in this matter, the first such charge concerns a political advertisement placed by Michaelis in the Wisner News-Chronicle, a newspaper of general circulation in Cuming County. It appears from the evidence that Michaelis had been seeking nomination for the position of Cuming County attorney in an effort to unseat the incumbent county attorney. According to respondent, he placed the advertisement of April 13, 1978, with the newspaper for the purpose of announcing his withdrawal from candidacy for the county attorney position. The advertisement consists of four columns of the paper, one continuing onto a second page. Only one sentence in the first column and the last paragraph of the advertisement relate to Michaelis' withdrawal from the county attorney election. The bulk of the advertisement contains allegations of illegal and unethical conduct on the part of the incumbent county attorney and several other named attorneys in the Cuming County area. The article also contains several self-laudatory statements in reference to respondent.

The second formal charge is based upon a one-page document the respondent caused to be released on or about April 11, 1978, and is captioned as a statement to the press. This paper also contains allegations of illegal and unethical conduct on the part of several local attorneys. The statements contained therein cast aspersions by innuendo on the incumbent county attorney and the city attorney of West Point, Nebraska.

The third formal charge relates to a three-page document dated April 25, 1978, and circulated by the respondent. These pages repeat many of the allegations of impropriety alleged by respondent in his other publications.

The fourth formal charge is in regard to a one-page document captioned "Acceptance of Republican Nomination for Cuming County Attorney," and is dated June 5, 1978. This document alleges conspiracy on the part of three Cuming County officials in removing respondent's name from the April primary election ballot.

During the pendency of the investigation of the formal charges, respondent made several additional statements and caused to be filed with the Cuming County Court certain documents which gave rise to the relator's motion of October 31, 1980, to incorporate additional charges against respondent. The first of these additional charges relates to a statement made by Michaelis to a newspaper reporter on or about October 7, 1980, which subsequently appeared on the front page of the West Point News on October 9, 1980. In the article Michaelis described the disciplinary proceedings brought against him, in part as follows: " 'The Nebraska Supreme Court is scared of this, because they know they have a dirty house, and if you have a dirty house, you don't open the windows .... And two attorneys have already committed perjury in this matter.' "

The second additional charge concerns a notice of...