STATE EX REL. NEBRASKA BAR v. Abrahamson, S-00-692.
| Decision Date | 28 September 2001 |
| Docket Number | No. S-00-692.,S-00-692. |
| Citation | 262 Neb. 632,634 N.W.2d 462 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska EX REL. NEBRASKA STATE BAR ASSOCIATION, relator, v. Hugh I. ABRAHAMSON, respondent. |
John W. Steele, Assistant Counsel for Discipline, for relator.
Clarence E. Mock III and Denise E. Frost, of Johnson & Mock, Oakland, for respondent.
On July 3, 2000, formal charges were filed by the Committee on Inquiry of the Second Disciplinary District of the Nebraska State Bar Association, relator, against attorney Hugh I. Abrahamson, respondent. The formal charges alleged, inter alia, that Abrahamson violated the following provisions of the Code of Professional Responsibility: Canon 1, DR 1-102(A)(1) and (5), and Canon 9, DR-9-102(A)(2) and (B)(3).
DR 1-102(A)(1) and (5) provide: DR 9-102(A)(2) and (B)(3) provide:
The formal charges also alleged Abrahamson violated his oath of office as an attorney. See Neb.Rev.Stat. § 7-104 (Reissue 1997).
On August 29, 2000, Abrahamson filed an answer to the formal charges, admitting certain of the allegations, but denying that he had violated either the disciplinary rules or his oath as an attorney. On September 7, this court appointed a referee to hear evidence and make a recommendation as to the appropriate sanction to be imposed. A referee hearing was held on November 21, at which hearing evidence was adduced and argument was made.
On January 18, 2001, the referee filed his report and found Abrahamson had violated DR 1-102(A)(1) and (5) and DR 9-102(A)(2) and (B)(3) of the Code of Professional Responsibility and his oath of office as an attorney, and recommended Abrahamson's suspension from the practice of law for 1 year. On January 26, Abrahamson filed his exceptions to the referee's report, challenging, inter alia, the referee's findings that he violated DR 9-102(A)(2).
The referee's factual findings may be summarized as follows: Abrahamson, a solo practitioner, was admitted to practice law in the State of Nebraska on February 1, 1985, and at all times relevant hereto has practiced in Omaha, Nebraska. On June 30, 1994, Abrahamson was retained by Beverly A. Doyle to represent her in a legal separation from her husband, Wayne Oppenheim. As a result of his representation of Doyle, Abrahamson sent Doyle monthly statements for his attorney fees, which statements she did not pay. Pursuant to the terms of his engagement agreement with Doyle, Abrahamson was entitled to deduct his attorney fees from any moneys he received on behalf of Doyle.
At some point in time after June 30, 1994, the separation action changed to a divorce proceeding. As a result of the divorce proceeding, the marital house was sold. Net proceeds from the sale amounted to $46,337.81. Doyle and Oppenheim disputed entitlement to the sale proceeds. Doyle claimed the entirety of the net proceeds from the sale of the house, and Oppenheim claimed one half of the net proceeds. Accordingly, on March 8, 1996, the net sale proceeds of $46,337.81 were deposited into a trust account Abrahamson maintained, awaiting a court order directing distribution.
At the time he represented Doyle, Abrahamson maintained two trust accounts in separate banks: FirsTier trust account 322 0342 and First Bank trust account 424-8700 (8700). The two banks merged in February 1996, under the name of First Bank, and Abrahamson's former FirsTier trust account number was changed to 3220-3424 (3424). First Bank gave Abrahamson new deposit slips to use for the 3424 account, but mistakenly encoded the account number for the 8700 account on the deposit slips.
After February 20, 1996, all deposits Abrahamson intended to make into the 3424 account were made into the 8700 account, including the deposit of the $46,337.81 net proceeds from the sale of the house. Checks written on the 3424 account, however, continued to be honored on that account. First Bank sent Abrahamson monthly statements for each account, which statements would have alerted Abrahamson to the depositing error. It is undisputed that Abrahamson did not open the statements and did not reconcile the trust account balances. Accordingly, Abrahamson did not note the mistake. Because of the confusion with respect to the 3424 and 8700 accounts, for purposes of our consideration of the allegations against Abrahamson, we will consider the accounts jointly as one account which we will refer to hereafter as "the trust account."
On August 31, 1996, the trial court entered its memorandum decision in the divorce proceeding. The decision awarded Doyle the entire net proceeds from the sale of the house. After allowing the applicable appeal period to run, Abrahamson issued a check to Doyle in the amount of $21,701.58, representing the net sale proceeds of the house minus Abrahamson's attorney fees and costs incurred in the divorce proceeding which amounted to $24,636.23.
Doyle was displeased that she did not receive the entirety of the sale proceeds and, after failing in her attempt to negotiate a final fee with Abrahamson, sent a letter to the Counsel for Discipline's office concerning Abrahamson's handling of the proceeds from the sale of the house.
The Counsel for Discipline notified Abrahamson of Doyle's grievance, and during the course of responding to the grievance, Abrahamson notified the Counsel for Discipline regarding his trust account balance. Although the balance had fluctuated for several days in July and August 1996, we note that the record shows that the amount in the trust account did not drop below $21,701.58, representing Doyle's interest in the proceeds from the sale of the house, after deducting Abrahamson's attorney fees and costs.
It is undisputed that Abrahamson did not open the bank statements or reconcile his check registers, that he failed to maintain separate ledgers for his individual client accounts, and that he failed to reference client accounts on deposits and withdrawals from the trust account. Indeed, according to Abrahamson's own accountant, who testified at the referee's hearing, on a scale of 1 to 10, with 10 being good bookkeeping practices, Abrahamson's accounting practices merited a grade of 1. In the referee's report, he found that Abrahamson had since corrected his accounting practices and now maintains his trust account in accordance with required standards. The referee also found that Abrahamson cooperated fully with the Counsel for Discipline's investigation and was remorseful.
The referee found that within the bar and the community, Abrahamson had a reputation of competence, professionalism, integrity, honesty, hard work, and fitness to practice law and that this reputation was demonstrated through numerous affidavits and letters from judges, lawyers, and clients. The referee also found that Abrahamson had demonstrated a record of service to the bar and to the indigent community through the Nebraska State Bar Association's pro bono Volunteer Lawyers Project.
The referee noted that Abrahamson had been the subject of a prior disciplinary proceeding, involving allegations unrelated to Abrahamson's attorney trust account, for...
To continue reading
Request your trial
-
STATE EX REL. SPECIAL COUNSEL v. Brinker, S-01-690.
...648 N.W.2d 302264 Neb. 478STATE of Nebraska ex rel. SPECIAL COUNSEL FOR DISCIPLINE OF THE NEBRASKA SUPREME COURT, Relator, ... Peter R ... Apker, supra; State ex rel. NSBA v. Abrahamson, 262 Neb. 632, 634 N.W.2d 462 (2001) ... The evidence in the present case ... ...
-
State ex rel. Counsel for Dis. v. Apker, S-01-538.
...642 N.W.2d 162263 Neb. 741STATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE OF THE NEBRASKA SUPREME COURT, Relator, ... John L. APKER, ... State ex rel. NSBA v. Abrahamson, 262 Neb. 632, 634 N.W.2d 462 (2001) ... As the referee noted, the record ... ...
-
STATE COUNSEL FOR DISCIPLINE v. Koenig, S-01-634.
...647 N.W.2d 653264 Neb. 474STATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE OF THE NEBRASKA SUPREME COURT, Relator, ... Apker, supra; State ex rel. NSBA v. Abrahamson, 262 Neb. 632, 634 N.W.2d 462 (2001) ... The evidence in ... ...
-
State ex rel. Counsel for Dis. v. Spindler, S-02-342.
...648 N.W.2d 319264 Neb. 501STATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE OF THE NEBRASKA SUPREME COURT, Relator, ... Judith A. SPINDLER, ... Apker, supra; State ex rel. NSBA v. Abrahamson, 262 Neb. 632, 634 N.W.2d 462 (2001) ... The evidence in the present case ... ...