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

• Decision Date: 10 January 1997
• Docket Number: No. S-95-928,S-95-928
• Citation: 558 N.W.2d 53,251 Neb. 468
• Parties: STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Miles W. JOHNSTON, Jr., also known as Bill Johnston, Respondent.
• Court: Nebraska Supreme Court

Page 53

558 N.W.2d 53

251 Neb. 468

STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Miles W. JOHNSTON, Jr., also known as Bill Johnston, Respondent.

No. S-95-928.

Supreme Court of Nebraska.

Jan. 10, 1997.

Syllabus by the Court

1. Disciplinary Proceedings: Appeal and Error. A proceeding to discipline a lawyer is a trial de novo on the record, in which the Nebraska 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, this 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. A lawyer who neglects an entrusted matter has failed to act competently and is guilty of unprofessional conduct.

3. Disciplinary Proceedings. The violation of any of the ethical standards relating to the practice of law, or any conduct which tends to bring the courts or legal profession into disrepute, constitutes grounds for suspension or disbarment.

4. Disciplinary Proceedings: Proof. In order to sustain a complaint in a lawyer discipline proceeding, the Nebraska Supreme Court must find the complaint to be established by clear and convincing evidence.

5. Disciplinary Proceedings. To determine whether and to what extent discipline should be imposed in a lawyer discipline proceeding, the Nebraska Supreme Court considers the following factors: (1) The nature of the offense, (2) the need for deterring others, (3) the need to maintain the reputation of the bar as a whole, (4) the need to protect the public, (5) the attitude of the offender generally, and (6) the offender's present or future fitness to continue in the practice of law.

John W. Steele, Assistant Counsel for Discipline, for relator.

No appearance for respondent.

WHITE, C.J., and CAPORALE, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

PER CURIAM.

This is a lawyer discipline case wherein the relator, Nebraska State Bar Association, seeks to have this court discipline the respondent, Miles W. Johnston, Jr., also known as Bill Johnston, a member of the relator association.

SCOPE OF REVIEW

A proceeding to discipline a lawyer is a trial de novo on the record, in which this 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, this 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. See State ex rel. NSBA v. Van, 251 Neb. 196, 556 N.W.2d 39 (1996).

FACTS

Johnston was duly admitted by this court to the practice of law in the State of Nebraska and to membership in the association on June 28, 1965, and, except for periods of suspension as hereinafter noted, has at all times relevant hereto engaged in the private practice of law in Lancaster County, Nebraska.

On the basis of the amended application of the association's Committee on Inquiry of the First Disciplinary District representing that Counsel for Discipline had filed charges alleging a pattern by Johnston of neglecting matters entrusted to him as a lawyer and of failing to respond to inquiries made by Counsel for Discipline, and Johnston's failure to have responded to our order to show cause why such should not be done, we temporarily suspended Johnston from the practice of law by order dated August 29, 1995. Although the order was served upon Johnston on August 31, 1995, he has not yet complied with Neb. Ct.R. of Discipline 16 (rev. 1996) requiring, among other things, that one suspended from the practice of law return to our clerk the card showing membership in the association and file an affidavit that all present clients and lawyers involved in pending matters with the suspended lawyer have been notified of the suspension and that clients have been assisted in obtaining other representation.

Johnston had represented Denise E. Mainquist in other matters and at her request undertook to seek a reduction of her child support obligation to her former husband. He prepared an application seeking such relief and led her to believe that he had filed it; however, he never did so, even after the former husband had filed his own application seeking an increase in child support. Moreover, not until after Mainquist was served with a motion for default judgment did Johnston file a response he had prepared to the former husband's application, which he had Mainquist sign. Although Johnston agreed because of Mainquist's vacation schedule to seek a continuance of the hearing set on the former husband's application, he did not do so. Moreover, he did not attend the hearing, about which he had forgotten. After he received a call from the judge, he submitted the matter on the discovery and the pleadings, notwithstanding that he had not reviewed the former husband's current representation of income. An order was entered increasing Mainquist's child support obligation.

Johnston was informed by the court of the increased child support order, but he said nothing about it to Mainquist, who testified she did not learn of it until approximately 4 months after it was entered, when her former husband told her. Although Johnston prepared and gave Mainquist a copy of a motion to set the order aside, he did not file it.

With respect to the hearing, Johnston explained he had worked out the husband's income based on information he had seen in the past and admitted he was probably negligent in not reviewing the former husband's current computations in that regard. He explained that he did not file the application he had prepared for Mainquist even after the husband filed his application because he initially Johnston also admits that he failed to respond in a timely fashion to the inquiries made by the association's Counsel for Discipline concerning the four complaints forming a part of the formal charges now before us. It was not until the hearing before the Committee on Inquiry that Johnston responded in writing to three of the complaints. He made no written response to Counsel for Discipline on the inquiry concerning Mainquist's complaint, the only complaint we consider on the merits.

                thought the issues would be the same, but on reflection agreed that they were probably not.  He candidly[251 Neb. 471]  admitted that Mainquist "didn't get the best professional job out of it," but, recognizing that such was not a requirement for discipline, did not "know that she was substantially harmed."   He also explained that he takes on too much and is trying to limit that problem
                

The record further reveals that Johnston does not come to us with an unblemished past professional history. On June 1, 1989, Johnston was privately reprimanded for having violated our Code of Professional Responsibility on a charge of misrepresenting to a client that a petition had been filed. On May 22, 1991, Johnston was...