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

• Decision Date: 06 November 1979
• Docket Number: No. 42304,42304
• Citation: State ex rel. Nebraska State Bar Ass'n v. Erickson, 285 N.W.2d 105, 204 Neb. 692 (Neb. 1979)
• Parties: STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Realtor, v. Dean E. ERICKSON, Respondent.
• Court: Nebraska Supreme Court

Page 105

285 N.W.2d 105

204 Neb. 692

STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Realtor, v. Dean E. ERICKSON, Respondent.

No. 42304.

Supreme Court of Nebraska.

Nov. 6, 1979.

Syllabus by the Court

1. Disciplinary Proceedings: Attorneys at Law: Proof: Evidence. 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 preponderance of the evidence.

2. Disciplinary Proceedings: Attorneys at Law: Evidence: Appeal and Error. 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.

3. Disciplinary Proceedings: Attorneys at Law: Evidence: 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.

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

Dean E. Erickson, pro se.

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

HASTINGS, Justice.

This is a disciplinary proceeding brought against Dean E. Erickson, a practicing member of the Nebraska State Bar Association. Following hearings held before the Committee on Inquiry of the Third Judicial District and the Advisory Committee, formal charges against respondent were filed in the Supreme Court of Nebraska on September 1, 1978. This court then appointed a referee to hear the matter, who held a hearing on the charges. The evidence adduced at that hearing consisted of the testimony presented before the Committee on Inquiry of the Third Judicial District, the files and records of the Counsel for Discipline, and testimony of the respondent. The referee filed his report in this court on December 26, 1978, recommending a 6-month suspension of respondent's license to practice law. No exceptions were filed to the referee's report, and on January 29, 1979, the relator filed its motion for final judgment on the report of the referee. However, the motion was overruled. The matter was briefed, argued, and submitted to the court.

The formal charges as filed in this matter consisted of counts I, II, and III involving, respectively, complaints by Mary Glenn and two complaints of Ben Foos, with a conclusionary allegation that the actions of the respondent as set forth in the various counts were in violation of the attorney's oath of office provided for by section 7-104, R.R.S.1943, and in violation of the following Canons and Disciplinary Rules of the Code of Professional Responsibility: Canon 1, DR 1-102(A)(1)(5); Canon 6, DR 6-101(A) (2)(3); and Canon 7, DR 7-101(A)(1), (2), (3). Additionally, a fourth count was added by stipulation of the parties at the hearing before the referee held on November 30, 1978. This related to a suit against James R. Sutton. By agreement of the parties, the transcript from that case, filed in this court as case No. 41627, was received in evidence and both parties waived the necessity of formal amendment of the complaint.

Count I involved a suit filed in the municipal court of Lincoln by Gamble-Robinson Co., a food wholesaler, against Mary Glenn for various sales and deliveries of merchandise. The suit alleged a balance due of $1,274.03. The answer filed by respondent on behalf of Mrs. Glenn claimed that the debt complained of was in fact the debt of Larry Christianson. A motion to set for trial was filed by the plaintiff. Notice of the time of hearing that motion was served on respondent. On the date set for hearing the motion was sustained without argument, and the case was set for trial on March 28, 1977. The respondent failed to notify Mrs. Glenn of the trial and as a consequence neither of them appeared and trial proceeded without them, resulting in a judgment in favor of plaintiff in the amount of $1,274.03. Mrs. Glenn first learned that judgment had been taken against her when her bank account was garnished as a result of summons issued April 6, 1977. Respondent did file a motion to set aside the judgment, which was set for hearing on May 2, 1977. However, he did not advise Mrs. Glenn and it was plaintiff's attorney who told her what day the motion was set for hearing. She appeared in court but respondent failed to appear. The court found the judgment entered was after trial rather than by default, so the motion was overruled. Mrs. Glenn did admit she had guaranteed the first delivery so did in fact owe approximately $200 of the total judgment, but had a defense to the remainder. She stated she had heard nothing at all from respondent since before the judgment was entered.

During the course of the hearing before the referee, in explanation of his actions in the Glenn case as well as the other matters, respondent stated that in April of 1977 he was "committed, somewhat voluntarily" to the chemical dependency unit of Lincoln General Hospital as an alcoholic, where he remained until June 9, 1977. However, when it was pointed out to him that his failure to appear in court in the Glenn matter predated his hospitalization, he simply stated he had no recollection as to what might have occurred that accounted for his failure to appear. He also admitted he had not talked to Mrs. Glenn since his hospitalization and had not attempted to contact her, but suggested he was not certain that the results would have been any different had he appeared. However, he said he did feel obligated to recompense her for whatever her loss might have been due to his failure to appear in court. On June 1, 1977, respondent had written a letter to the then Counsel for Discipline in which he said: "In regard to the letter of Mary Ellen Glenn I will accept responsibility for any improper loss. I would like to discuss this matter in person with you and her upon my release." According to Mr. Gushard, the Counsel for Discipline, respondent talked to him in July of 1977, and said he had been drinking quite heavily during the early spring of 1977 and undoubtedly this had something to do with his loss of memory in connection with the missed hearing. He repeated his intention to contact Mary Glenn within the next few days to make arrangements to reimburse her for any loss. He was reminded again by Mr. Gushard on several occasions and each time he promised to make arrangements for reimbursement, but still had not done so.

Count II refers to a lawsuit in which respondent represented Benjamin Foos as to a claim made against him in the county court of Hall County by Benjamin & Associates, Inc., for $1,045.10 for alleged services rendered. This was filed February 15, 1977, following which, and after filing a special appearance, respondent filed a general denial on behalf of defendant. The case was set for trial on May 26, 1977, and a notice of hearing was sent to respondent by the court. Respondent failed to notify his client of the trial date and failed to appear himself. Judgment, including attorney's fees and costs, was entered in the amount of $1,352.08. Mr. Foos was not aware of the trial or the fact that a judgment had been entered against him until June or July of that same year when he was contacted by the sheriff. When questioned by his client as to why he didn't appear at the trial, respondent simply replied, "Oh, it slipped my mind." Mr. Foos felt that he had a meritorious defense to that lawsuit because, according to him, the agreement with the plaintiff was that their services would be of a contingent nature, i. e., if the project for which plaintiff had drawn plans went through, they would get a percentage of the total cost of the overall job. Respondent's response to the complaint of Mr. Foos in this particular case is that Foos never denied the obligation represented by that lawsuit. He gave no explanation for his failure to act which, it can also be assumed, was because it was during the time he was hospitalized.

The case in count III was a suit filed by the respondent on behalf of Mr. Foos against the Hensons in the county court of Merrick County, seeking recovery of $730 arising out of the lease of a house to defendants. The attorney for the defendants Hensons, filed a motion to make more definite and certain, which was noticed for hearing on March 29, 1977, at which time respondent failed to appear. The court sustained the motion and ordered Mr. Foos to amend his petition by April 20. On May 4, defendants filed a motion to dismiss for the reason that plaintiff had failed to comply with the previous order of court. This was set for hearing on May 20 and respondent was properly noticed. In the meantime, although respondent did not appear at the hearing on the motion to dismiss, an amended petition was filed on behalf of the plaintiff as of that same date. However, the court found that not only was the amended petition filed out of time but it failed to comply with the court's previous order, and as a result plaintiff's petition and amended petition were ordered dismissed.

Mr. Foos in his testimony before the Committee on Inquiry stated he was not exactly sure whether or not he could have collected any money from the Hensons even if he had obtained a judgment. He further testified that on more than one occasion he asked respondent when the trial was to be had and was told he would be informed. However, the next information he received was when he happened to be in Central City and went into the court to inquire and was told the matter had come up and that the case had been dismissed. According to the Counsel for Discipline, respondent indicated he wasn't sure whether he received...