State ex rel. NSBA v. Denton
| Decision Date | 21 January 2000 |
| Docket Number | No. S-98-674.,S-98-674. |
| Citation | 258 Neb. 600,604 N.W.2d 832 |
| Parties | STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, relator, v. Gary D. DENTON, respondent. |
| Court | Nebraska Supreme Court |
Kent L. Frobish, Assistant Counsel for Discipline, Lincoln, for relator.
Gary D. Denton, pro se.
Formal charges were filed by the Nebraska State Bar Association (NSBA) against Gary D. Denton, a member of the NSBA. For the reasons set forth below, we conclude that Denton should be disbarred.
In January 1997, Denton's former client, K.J., filed a letter of complaint with the NSBA. K.J. alleged that she and Denton engaged in sexual relations during the time of their attorney-client relationship. In 1994 and 1995, Denton represented K.J. in a divorce proceeding involving a child custody dispute. Although K.J. was awarded temporary custody of the children, she lost permanent custody after Denton failed to call two potentially significant witnesses to testify about K.J.'s mental health and past behavior.
In June 1998, the NSBA filed formal charges against Denton for allegedly violating the attorney's oath of office and the following provisions of the Code of Professional Responsibility:
DR 2-110 Withdrawal from Employment.
(2) The lawyer knows or it is obvious that his or her continued employment will result in violation of a Disciplinary Rule.
DR 7-101 Representing a Client Zealously.
Denton denied the allegations contained in the formal charges. Thereafter, a referee was appointed pursuant to Neb. Ct. R. of Discipline 10(J) (rev.1996). In lieu of repeating testimony, the entire record made before the Committee on Inquiry of the Sixth Disciplinary District (Committee) was submitted to the referee. Sometime in early October, however, the NSBA discovered new evidence that was not introduced to the Committee. This evidence directly contradicted the evidence that Denton presented to the Committee. The new evidence consisted of a statement by another of Denton's former clients, Jane Doe, that she, too, had engaged in sexual activity with Denton during his representation of her. This evidence was adduced to rebut Denton's claim that he was impotent. Jane Doe submitted an affidavit which stated that Denton was able to achieve an erection at the time of their sexual contact. The referee, therefore, held a hearing in February 1999 to take additional testimony. The referee heard testimony from K.J., the original complainant against Denton, and Jane Doe, the source of the NSBA's newly discovered evidence. The referee also heard additional testimony from Denton, Denton's wife, and one of Denton's friends.
In addition, the evidence presented by the NSBA consisted of a tape-recorded conversation between Denton and K.J. When K.J. confided in another attorney regarding her problems with Denton, she was encouraged to get corroborative evidence of the sexual relationship. She did so by secretly tape recording a conversation between her and Denton in September 1996. Although Denton made an implausible attempt to connect the taped conversation with K.J.'s divorce proceeding and tried to explain his responses by saying that he did not know what K.J. was talking about, the taped conversation convincingly shows that Denton and K.J. engaged in sexual relations.
Based on the record made before the Committee, the testimony before the referee, and the transcript of the recorded conversation, the referee found by clear and convincing evidence that Denton had violated several provisions of the Code of Professional Responsibility. Thereupon, the referee recommended that Denton be suspended from the practice of law for 2 years, during which time he be required to participate in gender sensitivity courses and to continue counseling for depression and anxiety.
Under existing case law, we are limited in our review to examining only those items to which the parties have taken exception. State ex rel. NSBA v. Schmeling, 247 Neb. 735, 529 N.W.2d 799 (1995).
Under rule 10(L), this court may, in its discretion, consider the referee's findings as final and conclusive. See, State ex rel. NSBA v. Schafer, 227 Neb. 449, 418 N.W.2d 228 (1988); State ex rel. Nebraska State Bar Assn. v. Blanchard, 179 Neb. 452, 138 N.W.2d 804 (1965).
Based on the record made before the Committee, the testimony presented to the referee, and the transcript of the recorded conversation between Denton and K.J., the referee determined that "there was clearly some sort of sexual relationship engaged in between [K.J. and Denton] during the course of [Denton's] representation." Although Denton adamantly denied having any sexual contact whatsoever with K.J., the referee noted:
This is more than a "he said/she said" confrontation. In addition to [K.J.'s] extensive and graphic testimony before both the Committee on Inquiry and the hearing before me, there is the tape recording. [Denton's] explanations for his statements on the tape recording are neither convincing nor plausible.... I saw and heard [K.J.] testify. I saw and heard [Jane Doe] testify.... I find that, despite any past problems either of them may have experienced, the testimony of [K.J. and Jane Doe] regarding [Denton] was credible.
Next, the referee determined whether Denton's solicitation of and engagement in a sexual relationship with a client constituted a violation of the Code of Professional Responsibility. In consideration of the facts that Denton represented K.J. in a contested custody proceeding and was well aware of K.J.'s psychological and psychiatric history, the referee found by clear and convincing evidence that Denton's conduct violated Canon 1, DR 1-102(A)(5) (); DR 1-102(A)(6) (); and Canon 7, DR 7-101(A)(3) ().
The referee also found that Denton's conduct presented ethical violations beyond the sexual relationship with his client. The referee determined that Denton neglected to call two potentially significant witnesses on K.J.'s behalf because of their knowledge of the sexual relationship between K.J. and Denton. The referee concluded that by so doing, Denton put his own self-interest and protection above that of his client and thereby committed further violations of the Code of Professional Responsibility.
In preparation for the divorce proceeding, Denton asked K.J. about potential witnesses. She gave him several names, including Daniel L. Scharf, Ph.D., and Gary Cotton. Scharf, a licensed psychologist, counseled K.J. throughout the divorce proceedings. Cotton, a counselor at the Panhandle Mental Health Center, was a close friend and confidant of K.J.'s. At some point prior to trial, K.J. informed both Scharf and Cotton about her involvement with Denton. Although Scharf and Cotton had potentially significant testimony to offer, Denton neglected to contact either of them. Denton argues that he did not call them as witnesses because their testimony could have allowed K.J.'s husband to raise the question of her mental health at trial.
Although counsel for K.J.'s husband agreed at the pretrial conference not to raise the question of K.J.'s mental health as an issue at trial, opposing counsel did, in fact, bring up K.J.'s mental health during cross-examination. Counsel for K.J.'s husband testified before the Committee that he did not intend to raise the question of K.J.'s mental health, but, rather, he intended to impeach her. Nevertheless, opposing counsel's cross-examination of K.J. raised the issue of her mental health, and Denton failed to call either Scharf or Cotton to rehabilitate her status. Thereafter, the court awarded permanent custody of K.J.'s children to her husband. The referee noted that in K.J.'s situation, which seemed to be a "typical" divorce trial where child custody was an issue, Denton should have contacted K.J.'s counselors. Although the referee acknowledged the difficulty of second-guessing an attorney's trial strategy after the fact, he found that there was more than an appearance of impropriety and that Denton's professional judgment was affected by his sexual relationship with K.J. The referee found by clear and convincing evidence that despite the potential significance of testimony by Scharf and Cotton, Denton did not contact or call either of them because of their knowledge of the...
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