State ex rel. Nebraska State Bar Ass'n v. Rhodes
| Decision Date | 23 March 1990 |
| Docket Number | No. 89-142,89-142 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. George G. RHODES, Respondent. |
Syllabus by the Court
1. Disciplinary Proceedings: Due Process. Although a lawyer is entitled to due process of law in a disciplinary proceeding, technicalities cannot be invoked to defeat charges where there is evidence showing that the conduct alleged against the attorney is ethically wrong.
2. Disciplinary Proceedings. The Supreme Court may institute disciplinary proceedings on its own and has the inherent authority to direct the filing of disciplinary charges notwithstanding the action or inaction of the Committee on Inquiry.
3. Disciplinary Proceedings: Jurisdiction. Even if formal charges are filed with the Disciplinary Review Board after the time provided in Neb.Ct.R. of Discipline 9(H)(3)(h) (rev. 1989), the delay is not jurisdictional and the rule does not require dismissal of the formal charges.
4. Disciplinary Proceedings: Appeal and Error. A proceeding to discipline an attorney is a trial de novo on the record, in which the Supreme Court reaches a conclusion independent of the findings of the referee, provided, where credible evidence is in conflict on a material issue of fact, the Supreme 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.
5. Disciplinary Proceedings: Proof: Appeal and Error. In its de novo review of the record in a disciplinary proceeding against an attorney, and to sustain a particular complaint against an attorney, the Supreme Court must find that the complaint has been established by clear and convincing evidence.
6. Disciplinary Proceedings. In a disciplinary proceeding against an attorney, the basic issues are whether discipline should be imposed and, if so, the type of discipline appropriate under the circumstances.
7. Prosecuting Attorneys: Conflict of Interest. It is improper for prosecutors to participate in cases which involve personal friends or relatives.
8. Prosecuting Attorneys: Conflict of Interest: Affidavits. An affidavit alleging that the defendant and prosecuting attorney and their families had been close personal friends, that the defendant and prosecuting attorney had had business and political relations in the past, and that it would be difficult for the prosecuting attorney to conduct a trial is a sufficient showing to warrant appointment of a special prosecuting attorney.
9. Prosecuting Attorneys: Conflict of Interest. Courts around the country recognize two policy considerations underlying the disqualification of prosecuting attorneys for a conflict of interest. The first policy served by the rule is fairness to the accused. The second policy served is the preservation of public confidence in the impartiality and integrity of the criminal justice system.
10. Prosecuting Attorneys: Conflict of Interest. United States courts have consistently held that the appearance of impropriety is sufficient to justify disqualification of a prosecuting attorney.
11. Public Officers and Employees: Attorneys at Law. The conduct of a government attorney is required to be more circumspect than that of a private lawyer because improper conduct on the part of such an attorney reflects upon the entire system of justice in terms of public trust.
12. Disciplinary Proceedings. The nature and extent of discipline to be imposed is determined by a consideration of the nature of the offense, the need for deterring others, the maintenance of the reputation of the bar as a whole, the protection of the public, the attitude of the offender generally, and his or her present 13. Disciplinary Proceedings. The purpose of a disciplinary proceeding is not so much to punish an attorney as it is to determine, in the public interest, whether the attorney should be permitted to continue to practice law.
or future fitness to continue in the practice of law.
Dennis G. Carlson, Counsel for Discipline, for relator.
William M. Connolly, of Conway, Connolly and Pauley, P.C., Hastings, for respondent.
This is a disciplinary proceeding against the respondent, George G. Rhodes, who was admitted to the practice of law in Nebraska on April 8, 1977.
Formal charges against the respondent were filed in this court on February 24, 1989. The respondent's answer was filed on March 13, 1989. The allegations in the formal charges center around the propriety of the respondent's conduct in prosecuting Daniel T. Speer and the respondent's behavior toward Bradley Roth, an attorney who was appointed special prosecutor for some of the Speer prosecutions.
The respondent was charged with having violated his oath of office as an attorney at law, as provided by Neb.Rev.Stat. § 7-104 (Reissue 1987), and the following provisions of the Code of Professional Responsibility:
DR 1-102 Misconduct.
(1) Violate a Disciplinary Rule.
....
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
....
DR 2-110 Withdrawal from Employment.
....
A lawyer representing a client ... shall withdraw from employment ... if:
....
(2) He knows or it is obvious that his continued employment will result in violation of a Disciplinary Rule.
(3) His mental or physical condition renders it unreasonably difficult for him to carry out the employment effectively.
....
DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.
(A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.
....
DR 5-105 Refusing to Accept or Continue Employment if the Interest of Another Client May Impair the Independent Professional Judgment of the Lawyer.
(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of his client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).
....
DR 7-102 Representing a Client Within the Bounds of the Law.
(A) In his 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 his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.
In his answer, the respondent generally denied the substantive allegations contained in the formal charges. The respondent further alleged that this court does We held in State ex rel. NSBA v. Kirshen, 232 Neb. 445, 441 N.W.2d 161 (1989), that a lawyer is entitled to due process of law in a disciplinary proceeding. However, technicalities cannot be invoked to defeat charges where there is evidence showing that the conduct alleged against the attorney is ethically wrong. State ex rel. Nebraska State Bar Assn. v. Jensen, 171 Neb. 1, 105 N.W.2d 459 (1960), cert. denied 365 U.S. 870, 81 S.Ct. 905, 5 L.Ed.2d 860 (1961); State ex rel. Nebraska State Bar Assn. v. Leonard, 212 Neb. 379, 322 N.W.2d 794 (1982).
not have jurisdiction over this matter because the hearing panel of the Committee on Inquiry did not transmit formal charges to the Disciplinary Review Board within 45 days, as required by Neb.Ct.R. of Discipline 9(H)(3)(h) (rev. 1989). In this case, the respondent alleges the formal charges were transmitted 53 days after the committee hearing.
Pursuant to Neb.Ct.R. of Discipline 10(B) (rev. 1989), this court may institute disciplinary proceedings on its own and has the inherent authority to direct the filing of disciplinary charges notwithstanding the action or inaction of the Committee on Inquiry. Even if formal charges are filed with the Disciplinary Review Board after the time provided in rule 9(H)(3)(h), the delay is not jurisdictional, and the rule does not require dismissal of the formal charges. We further note that the respondent has made no showing that he was prejudiced in any way by the alleged delay in the filing of the formal charges. The respondent's contention is without merit.
A referee was appointed on March 24, 1989, and the matter was heard on July 12 and 13, 1989. The report of the referee was filed in this court on August 15, 1989. The referee found that the respondent had violated the provisions of DR 1-102, DR 2-110, DR 5-101, and DR 7-102 and recommended that the respondent be suspended from the practice of law for a period of 5 years. Exceptions to the referee's report were filed by the respondent on August 25, 1989.
A proceeding to discipline an attorney is a trial de novo on the record, in which the Supreme Court reaches a conclusion independent of the findings of the referee, provided, where credible evidence is in conflict on a material issue of fact, the Supreme 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. Douglas, 227 Neb. 1, 416 N.W.2d 515 (1987), cert. denied 488 U.S. 802, 109 S.Ct. 31, 102 L.Ed.2d 10 (1988); State ex rel. NSBA v. Kirshen, supra. See also, State ex rel. NSBA v. Cohen, 231 Neb. 405, 436 N.W.2d 202 (1989); State ex rel. NSBA v. Neumeister, 234 Neb. 47, 449 N.W.2d 17 (1989). In its de novo review of the record in a disciplinary proceeding against an attorney, and to sustain a particular...
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