State ex rel. NSBA v. Flores

• Decision Date: 16 February 2001
• Docket Number: No. S-00-114.,S-00-114.
• Citation: 261 Neb. 256,622 N.W.2d 632
• Parties: STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Jeffrey S. FLORES, Respondent.
• Court: Nebraska Supreme Court

622 N.W.2d 632

261 Neb. 256

STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, Relator, v. Jeffrey S. FLORES, Respondent.

No. S-00-114.

Supreme Court of Nebraska.

February 16, 2001.

Denise E. Frost and Clarence E. Mock, Oakland, of Johnson & Mock, for respondent.

John W. Steele, Lincoln, for relator.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

PER CURIAM.

This is an attorney disciplinary case in which the Nebraska State Bar Association (NSBA), relator, seeks to discipline Jeffrey S. Flores, respondent.

I. BACKGROUND

The Committee on Inquiry of the Third Disciplinary District filed formal charges against Flores pursuant to Neb. Ct. R. of Discipline 10 (rev.2001). In count I, Flores was charged with violation of Canon 1, DR 1-102(A)(1), (3), (4), and (6) of the Code of Professional Responsibility in connection with an alleged failure to apply pension benefits belonging to Edith Erling to her nursing home care bills during an 11-month period. In count II, Flores was charged with violating DR 1-102(A)(1), (3), (4), and (6) with respect to an alleged failure to relinquish certain personal property of Erling to the personal representative of her estate. In count III, Flores was charged with violating DR 1-102(A)(1) and (6) for failing to ensure that Erling's personal funds remained sufficient to fund the type of funeral she desired. The provisions at issue provide:

DR 1-102 Misconduct.

(A) A lawyer shall not:

(1) Violate a Disciplinary Rule.

....

(3) Engage in illegal conduct involving moral turpitude.

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

....

(6) Engage in any other conduct that adversely reflects on his or her fitness to practice law.

In his answer to the formal charges, Flores denied the factual allegations and specifically denied that he breached any provision of the code.

At Flores' request, the matter was submitted to a referee pursuant to Neb.Ct.R. of Discipline 10(J). The referee conducted a formal evidentiary hearing at which Flores was present and represented by counsel. At the conclusion of the hearing, counsel for Flores moved to dismiss counts II and III of the formal charges and, therefore, only count I was submitted to the referee. The referee made the following factual findings with respect to count I:

Flores was admitted to the practice of law in the State of Nebraska on September 22, 1980. He was engaged in private practice in Hooper and Scribner, Nebraska with the law firm of Hurt & Gallant [sic] from September, 1980 through September, 1986. On October 4, 1986 he accepted a position at the First National Bank & Trust in Fremont, Nebraska, as a trust officer. This bank was subsequently sold to FirsTier and will hereinafter be referred to as "FirsTier". He left that position in May, 1994 and thereafter took time off from the practice of law. He is currently under "suspension" for failure to pay dues to the NSBA which was a voluntary act on his part as he did not intend to actively practice law for a while. He presently manages a greenhouse in Des Moines, Iowa, where he recently moved to be near his children who reside with their mother in eastern Iowa.

Erling started out at the age of 16 as a secretary at FirsTier and later became vice president. She was the first female to hold an officer's position at any bank in Fremont, Nebraska.

Erling and FirsTier were designated as co-personal representatives of the Estate of Wilma Tiegler, a resident of Fremont, who died in an automobile collision in 1987. The Tiegler Estate proceeded through the probate process in the County Court of Dodge County, Nebraska. Erling and Flores worked together on the Tiegler Estate. This Estate was complicated and required years to complete its administration. In fact, as of the date of the hearing in this matter (June 8, 2000) administration of the Tiegler Estate was still in progress and the Estate had not yet been closed.

During the course of their work together on the Tiegler Estate, Flores and Erling developed a close, personal friendship. The scope of the relationship came to include Erling's friendship with Flores' then-wife, Julie Flores, and Flores' three young children.

After she retired from her full time employment at FirsTier in 1988, Erling continued to speak to and/or meet with Flores several times a week regarding her continuing work on behalf of the Tiegler Estate as well as personal and social matters. At her retirement ceremony, Flores was asked to be the emcee by the bank president even though the bank president had known Erling much longer than Flores had.

Erling was an only child and never married. She had no children. Flores described the bank as being her "family".

Flores and Erling had several things in common. They liked to go out to eat, attend civic events, and attend other social events. They both enjoyed art and music. Erling would oftentimes go to the Flores home and she traveled with Flores and his family on vacations, including a trip to the Plaza in Kansas City to see the Christmas lights.

Erling spent Christmas Eve and other holidays, as well as family celebrations such as birthdays and baptisms, with Flores and his family.

Erling always sent cards or gifts to the Flores children on days such as Halloween, Valentine's Day, Christmas and birthdays. She often commented about how fortunate she felt to be a part of the Flores family.

Between 1988 and 1992 Erling and Flores usually met for lunch twice a week, every week.

Flores was the one who would take Erling to the doctor, take her shopping, take her wherever she needed to go. This occurred on a regular basis. When she had to move out of her apartment, Flores took two weeks of vacation and spent the days and evenings cleaning out her apartment and boxing up her personal effects for storage. He stored all of Erling's personal effects either at his parents' home in Scribner, Nebraska, or at Denning Storage in Fremont, Nebraska. He used his parents' home to store the more valuable personal effects such as china, sterling, jewelry, silverware, etc. Flores testified that he paid all the storage expenses at Denning Storage.

In 1990, Erling told Flores that she had added his name to her checking account at FirsTier. In 1991, the two opened another joint checking account at First Federal of Lincoln ("First Federal"). During this same time frame Erling also placed Flores' name on four CDs as joint owner. Each of these CDs was approximately $10,000.00 in value. At this time, Erling's assets consisted of approximately $40,000.00 in CDs and a $10,000.00 car in addition to miscellaneous personal effects. The car was subsequently sold and the proceeds ($10,000.00) were placed in one of Erling's checking accounts. (Parenthetically, it is noted that the Stipulation between the parties identified three CDs with a total value of approximately $25,000.00).

When told that he had been added to the financial accounts Flores told Erling he was very grateful but she didn't have to do that. Her response was that Flores didn't have to do all that he did for her either but she truly appreciated it. He was uncomfortable about being added to these accounts so he went to Erling's friend and co-worker, Marilyn Anderson, and spoke to her about it. The specifics of that discussion were not revealed at the hearing.

Flores testified that both Erling and Flores had their own check books for the FirsTier account and that Flores maintained possession of the check book for the First Federal account, while Erling maintained a cash card for that account.

The FirsTier monthly statement would go to Erling. Each month Flores would discuss with Erling all the checks cashed that month. The First Federal statements went to Flores. Flores testified that all monies spent out of either checking account or the CDs were spent with the full knowledge and consent of Erling.

When the CDs were cashed the proceeds were placed in one or the other checking account.

Of the approximately $50,000.00 in available cash from and after 1990, Flores estimated he spent $20,000.00 of it for his own personal benefit/use with the knowledge and consent of Erling. The remainder was spent on items requested by Erling or to pay bills on behalf of Erling. At one point in time, Erling was paying for three different residences—her home, an assisted living apartment, and the nursing home at Arbor Manor.

At the same time Erling advised Flores that she had named him as a joint owner of the checking and CD accounts, she likewise advised him that she had signed both a Durable Power of Attorney ("POA") naming him as her attorney-in-fact and a Living Will giving Flores the power and authority to make medical care decisions on her behalf if she became unable to participate in such decisions.

In addition, in August, 1991, Erling signed her Last Will and Testament wherein she made specific dollar amount bequests to nine different individuals totaling $7,000.00. The residual/remainder of her Estate was willed to Flores and, in the event he did not survive her, then to the Presbyterian Church in Fremont, Nebraska. Flores played no part in the preparation of this Will nor any of the other aforedescribed legal documents, nor was he aware of their existence until after they were prepared and signed.

Flores testified he never performed any legal work for Erling. Tom Thomsen ("Thomsen") did all of her legal work, including the Durable Power of Attorney, Living Will, and Last Will and Testament. Thomsen was also the attorney for FirsTier.

It was stipulated that if Thomsen was called to testify as a live witness at the hearing, he would state that he perceived Erling was competent and knew, understood and intended the nature and effect of her acts when she executed her Power of Attorney and Living Will documents. There was no other evidence to the contrary. I specifically find that Erling neither lacked testamentary capacity nor was she the...