State ex rel. NSBA v. Mefferd, S-98-1126.
| Decision Date | 21 January 2000 |
| Docket Number | No. S-98-1126.,S-98-1126. |
| Citation | 604 N.W.2d 839,258 Neb. 616 |
| Parties | STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, relator, v. Michael L. MEFFERD, respondent. |
| Court | Nebraska Supreme Court |
Stephen A. Scherr, of Whelan & Scherr, Hastings, for relator.
Michael L. Mefferd, pro se.
Formal charges were filed by the Nebraska State Bar Association (NSBA), relator, against Michael L. Mefferd, respondent, a member of the NSBA since 1980. For the reasons set forth below, we order the respondent suspended from the practice of law for a period of 1 year.
In the summer of 1995, Kimberly Alderman, then the wife of Paul Alderman, contacted Mefferd. Kimberly Alderman was seeking legal representation for her husband, who had been charged with criminal offenses. Mefferd and Kimberly Alderman orally agreed that Mefferd would be paid $2,500 to represent Paul Alderman on these charges. Kimberly Alderman paid Mefferd $1,000 at the time of their agreement. Mefferd and the Aldermans understood that the remaining $1,500 would be paid from a refund of Paul Alderman's bail bond of $25,000. The Aldermans anticipated that $2,500 of the bond would be refunded, of which Mefferd would receive $1,500 and the Aldermans would receive the remainder.
Kimberly Alderman signed the bond over to Mefferd. The actual bond refund amount was $2,250, which was cashed by Mefferd on June 25, 1996. However, Mefferd did not refund the $750 overpayment to the Aldermans. Kimberly Alderman called Mefferd's office on numerous occasions, attempting to speak with Mefferd about the overpayment, but each time was told by Mefferd's secretary that Mefferd was out or busy. Kimberly Alderman left messages for Mefferd to call, but she got no response.
While incarcerated, Paul Alderman also attempted to reach Mefferd on several occasions about the overpayment, but his collect calls were refused. Paul Alderman wrote a letter to Mefferd about the overpayment. He mailed the letter to Kimberly Alderman, asking her to place her current return address on the envelope because he thought it was more likely that Mefferd would open the letter if it came from Kimberly Alderman. Kimberly Alderman mailed the letter to Mefferd, but Mefferd never responded.
On August 8, 1996, Dennis Carlson, Counsel for Discipline for the NSBA, received a letter from Paul Alderman regarding Mefferd's actions. Mefferd received notification of the complaint against him on August 12, personally signing the return receipt on that date. Mefferd was required to file a written response to the complaint with the Counsel for Discipline within 15 working days after receipt of the complaint, pursuant to Neb. Ct. R. of Discipline 9(E) (rev.1996). Mefferd filed no response.
Carlson sent additional letters to Mefferd on September 4 and 18, 1996. Mefferd did not respond. On October 29, Carlson called Mefferd at his office and left a message for Mefferd to return the call. Mefferd did not respond. On November 5, Carlson called again and was told by Mefferd's secretary that Mefferd was with a client. Carlson said that he would expect a return call that afternoon, and Mefferd called back that day. Mefferd told Carlson that he had sent his written response to the Counsel for Discipline approximately 6 weeks earlier. Mefferd then told Carlson he would send another copy of his written response to Carlson by certified mail.
Carlson received nothing from Mefferd. On November 13, 1996, Carlson called and informed Mefferd he had still not received his response and left a message for Mefferd to return his call. Mefferd did not respond. On November 14, Carlson called again, but no one answered the telephone. On November 15, Carlson wrote to Gerald Matzke, chair of the Committee on Inquiry of the Sixth Disciplinary District for the NSBA (hereinafter Committee), explaining that it was necessary to seek a temporary suspension of Mefferd's license due to Mefferd's failure to respond to the Alderman complaint. A copy of this letter was sent to Mefferd. Mefferd again did not respond. Matzke filed an application with the Nebraska Supreme Court requesting that Mefferd be temporarily suspended from the practice of law. The Supreme Court issued an order to show cause why Mefferd should not be temporarily suspended.
Mefferd filed a response to the show cause order. This response was received by the Counsel for Discipline on January 30, 1997. Mefferd's written response to the Alderman complaint was attached. His written response had a typed date on it of September 16, 1996.
Carlson continued investigating the Alderman complaint. Carlson wrote to Mefferd on April 14 and May 12, 1997, with some additional questions. Mefferd did not respond to the April 14 letter, but did respond to the May 12 letter. Carlson wrote Mefferd again on June 30 and July 15 with further questions, but Mefferd did not respond to either letter.
In June 1997, Carlson received another complaint against Mefferd from Robert G. Rose. Mefferd, while acting as a deputy public defender, had been appointed to handle Rose's appeal on a criminal matter. Rose's appeal was dismissed when Mefferd failed to file a brief. On July 1, 1997, Mefferd received a certified letter from the Counsel for Discipline notifying Mefferd of the Rose complaint. Again, there was no response within the time period of 15 working days. Carlson wrote Mefferd regarding the Rose complaint on July 24 and again on August 5. Mefferd did not respond. On August 20, Carlson received a fax from Mefferd requesting until August 22 to respond. However, the Counsel for Discipline received no response from Mefferd on August 22. Carlson wrote again on September 2, with no response. On September 30, Carlson left a voice mail message at Mefferd's office. There was no response. Carlson subsequently filed charges regarding the Rose complaint and the Alderman complaint with the Committee.
The Committee hearing, set for March 12, 1998, included charges of failing to return an overpayment to the Aldermans, failing to timely respond to the Alderman complaint, neglect of a legal matter regarding Rose's appeal, and failing to timely respond to the Rose complaint.
The Aldermans testified at the Committee hearing. Rose, who was still incarcerated, testified via affidavit that he met with Mefferd in February 1996 to discuss his appeal. Mefferd wrote Rose a letter in April saying that he was working on the appeal and would be in touch with Rose some time during the week of April 15. Rose never heard from Mefferd after that, although Rose tried to contact Mefferd at least three times via the public defender's office. At no time did Rose instruct Mefferd not to pursue his appeal. Rose initiated a complaint with the Counsel for Discipline in the spring of 1997, attempting to find out why his appeal had been dismissed and why he had heard nothing from Mefferd. The record reflects that Rose's appeal was dismissed because Mefferd failed to file a brief on Rose's behalf.
Mefferd testified that he failed to file a brief "[b]ecause Mr. Rose had — Mr. Rose had not directed me with regard to how he wanted his appeal — what he wanted to appeal." When asked, "Did Mr. Rose ever tell you, It's okay with me that you don't file a brief, that you can just drop the appeal?" Mefferd answered, When Mefferd was asked if he ever told Rose that he would not proceed with the appeal, Mefferd admitted, "I didn't tell him in one sentence that I will not proceed with your appeal, no."
At the Committee hearing, Mefferd submitted a "draft" he had discovered of his written response to the Rose complaint. Mefferd was unable to produce a copy of the actual letter. Mefferd testified that he mailed his response to the Rose complaint on August 22, 1997. However, Mefferd also testified that he received a letter from the Counsel for Discipline on September 2 indicating that his written response to the Rose complaint had not been received. Mefferd admitted he "did not act" in response to the September 2 letter, offering no explanation for his behavior.
Mefferd agreed that he was overpaid in the amount of $750. During the hearing, Mefferd placed $750 on the table, which the Aldermans accepted as repayment.
After the Committee hearing, the Disciplinary Review Board determined that formal charges should be filed against Mefferd. These charges alleged that Mefferd violated the attorney's oath of office and the following provisions of the Code of Professional Responsibility:
A formal hearing was held before a referee on April 14, 1999. The full transcript from the proceedings of the ...
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