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

• Decision Date: 14 March 1997
• Docket Number: No. S-95-994,S-95-994
• Citation: 252 Neb. 40,560 N.W.2d 150
• Parties: STATE of Nebraska EX REL. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Thomas R. ZAKRZEWSKI, Respondent.
• Court: Nebraska Supreme Court

Page 150

560 N.W.2d 150

252 Neb. 40

STATE of Nebraska EX REL. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Thomas R. ZAKRZEWSKI, Respondent.

No. S-95-994.

Supreme Court of Nebraska.

March 14, 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 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: Proof. A disciplinary complaint against an attorney will be sustained only if the Supreme Court finds it to be established by clear and convincing evidence.

3. Disciplinary Proceedings. Any violation 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: Words and Phrases. For purposes of attorney disciplinary cases, the term "knowingly" shall include conduct that is so carelessly and recklessly negligent as to lead only to the conclusion that it was done knowingly.

5. Disciplinary Proceedings. To determine whether and to what extent discipline should be imposed in an attorney disciplinary proceeding, it is necessary that the following factors be considered: (1) the nature of the offense, (2) the need for deterring others, (3) the maintenance of the reputation of the bar as a whole, (4) the protection of the public, (5) the attitude of the offender generally, and (6) his or her present or future fitness to continue in the practice of law.

6. Disciplinary Proceedings. The determination of an appropriate penalty to be imposed on an attorney requires consideration of any mitigating factors.

Clark J. Grant, of Grant, Rogers, Maul & Grant, for relator.

Thomas R. Zakrzewski, pro se.

WHITE, C.J., CAPORALE, WRIGHT, CONNOLLY, and GERRARD, JJ., and BUCKLEY, District Judge.

PER CURIAM.

Formal charges against respondent, Thomas R. Zakrzewski, were filed in this court on September 15, 1995. The allegations set forth concerned respondent's signing of an affidavit containing an allegedly false statement of fact. Respondent was therefore charged with violating the following provisions of Canon 7 of the Code of Professional Responsibility:

DR 7-102 Representing a Client Within the Bounds of the Law.

(A) In his or her representation of a client, a lawyer shall not:

(1) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of a client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.

....

(5) Knowingly make a false statement of law or fact.

This matter was heard by a referee on March 14 and 15, 1996. In his report, the referee found that respondent knowingly made a false statement of fact in his affidavit and therefore violated DR 7-102(A)(1) and (5). In addition to these findings, the referee also noted his concern with respondent's attitude, as expressed in his brief to the referee, toward both the opposing counsel and the Nebraska State Bar Association. The referee made no recommendation regarding an appropriate penalty. Exceptions to the referee's report were filed by respondent on June 5, 1996.

STANDARD OF REVIEW

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. State ex rel. NSBA v. Johnston, 251 Neb. 468, 558 N.W.2d 53 (1997); State ex rel. NSBA v. Van, 251 Neb. 196, 556 N.W.2d 39 (1996).

FACTS

Respondent was admitted to the practice of law in the State of Nebraska on September 25, 1991. At all times relevant to this matter, respondent was engaged in the private practice of law in Humphrey, Nebraska. In order to get a better understanding of the disciplinary charges brought against respondent, it is necessary to examine the pertinent background facts.

UNDERLYING DIVORCE ACTION AND EVENTS OF JUNE 1, 1993

The underlying impetus of this disciplinary action involves respondent's representation of his brother, Evan Zakrzewski, in a divorce proceeding in the early part of 1993. Representing Evan Zakrzewski's former wife, Ronda Raff, in the divorce proceedings was Forrest Peetz, a practicing attorney in Holt County. Pursuant to a stipulation between Evan Zakrzewski and Raff, the district court for Holt County entered an order on March 30, 1993, awarding permanent custody of the parties' minor child, Heath, to Raff, who resided in Aberdeen, South Dakota. Evan Zakrzewski, then a resident of O'Neill, Nebraska, was to have visitation rights once a month from Tuesday until Sunday, for 2 months during the summer, and for alternating holidays.

Raff sent Heath to O'Neill several days prior to June 1, 1993, for his monthly visit with Evan Zakrzewski. Because Evan Zakrzewski was out of the state at the time for business purposes, Heath spent several days with Zakrzewski's parents, who also reside in O'Neill. Evan Zakrzewski returned to O'Neill on May 29. Despite requests from Raff, Evan Zakrzewski refused to return Heath to South Dakota on June 1. Although Raff contended the weeklong visitation period ended on that date, Evan Zakrzewski refused to comply, arguing that he had not seen Heath much in the last 8 months.

Upon Evan Zakrzewski's refusal to return Heath, Raff contacted Peetz for assistance. According to telephone records, Raff telephoned Peetz three times on June 1. Peetz testified that he told Raff she should contact the clerk of the district court and the sheriff's office to resolve the matter. Peetz was eventually contacted by the sheriff's office and by Tom Herzog, Holt County Attorney, in an attempt to seek information regarding the terms of the divorce decree. Telephone records introduced at trial establish that all calls between Peetz and county officials were made to Peetz' office.

Learning of the situation, Herzog examined the divorce decree provisions concerning visitation and called the district court judge who granted the divorce decree. According to Herzog, the judge directed him to tell the sheriff to tell Evan Zakrzewski to give the child back. Following the orders of Herzog, Holt County Sheriff Charles R. Fox relayed this information to his deputies. Fox specifically stated that he instructed his deputies not to use physical force or intimidation against Evan Zakrzewski.

According to testimony from Holt County Deputy Alan Rowse, Evan Zakrzewski was then asked to return Heath that day by 4 p.m. Not surprisingly, Evan Zakrzewski recounts a different picture; one in which he was physically threatened with physical danger and jail time if he refused to return Heath that day. After Evan Zakrzewski's contact with Rowse, he called his brother, respondent herein, for advice. Respondent proceeded to make calls to Peetz, Herzog, and the sheriff's office to halt the return of Heath. In each instance, respondent made it a point to state that he would sue each individual if Evan Zakrzewski was forced to return Heath to South Dakota that day. Ultimately, Evan Zakrzewski complied with the requests of the law enforcement officials, and Heath was transported to Raff in South Dakota that evening by a third party.

ALLEGATIONS OF CHILD ABUSE AND AFFIDAVIT

Respondent followed up on his threats and filed a federal civil rights action against Peetz, Fox, Rowse, Herzog, and other Holt County officials. This suit alleged that the defendants named therein violated Evan Zakrzewski's constitutional rights while acting under color of state law. Eventually, summary judgment was granted in favor of all defendants. See Zakrzewski v. Fox, 87 F.3d 1011 (8th Cir.1996). Prior to these dismissals and during the discovery period, respondent ascertained that Raff had filed a report of child abuse with the South Dakota Department of Social Services (South Dakota DSS) on June 2, 1993, the day after Heath was returned from his visit with Evan Zakrzewski. A letter from the South Dakota DSS dated June 10, 1993, was sent to Rowse informing him that the allegation would be investigated by Child Protective Services in Nebraska. A copy of this letter was also sent to Peetz. During the disciplinary proceedings, Raff testified that she wanted Peetz to have a copy of the letter so that it could be placed in her divorce file.

Upon discovering the abuse allegation, respondent filed a motion in the district court for Holt County requesting an order to show cause as to why Raff and Peetz should not be held in contempt for violating the March 30, 1993, divorce decree because the abuse allegation was false and unsubstantiated. In support of the motion regarding Peetz, respondent prepared his own affidavit, wherein he alleged as follows:

That during discovery being conducted for a Federal Civil Rights action I discovered that Ronda Raff, in concert with Forrest Peetz and at his direction, in order to injure and vilify the petitioner and to attempt to interfere with petitioner's rights granted by this court, had filed a false and malicious claim of child abuse of Heath Alexander Zakrzewski....

(Emphasis supplied.)

A hearing on the motion was had in the district court for Holt County on October 13, 1994. After the hearing, the court refused to issue an order requiring Peetz to show cause why he should not be held in contempt. In reaching this conclusion, the court noted that the only...