State ex rel. NSBA v. McArthur

• Decision Date: 03 September 1999
• Docket Number: No. S-98-411.,S-98-411.
• Citation: 257 Neb. 618,599 N.W.2d 592
• Parties: STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, relator, v. Brett T. McARTHUR, respondent.
• Court: Nebraska Supreme Court

599 N.W.2d 592

257 Neb. 618

STATE of Nebraska ex rel. NEBRASKA STATE BAR ASSOCIATION, relator, v. Brett T. McARTHUR, respondent.

No. S-98-411.

Supreme Court of Nebraska.

September 3, 1999.

Kent L. Frobish, Lincoln, Assistant Counsel for Discipline, for relator.

Rolf Edward Shasteen, Lincoln, for respondent.

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

PER CURIAM.

NATURE OF CASE

This is an attorney disciplinary case in which the Nebraska State Bar Association (NSBA), relator, seeks to discipline Brett T. McArthur, respondent.

BACKGROUND

The Committee on Inquiry of the First Disciplinary District filed formal charges against McArthur. The committee alleged that while representing a client in an eviction action in 1996 and 1997, McArthur violated Canon 1, DR 1-102(A)(1); Canon 6, DR 6-101(A)(3); and Canon 7, DR 7-101(A)(2) and (3), of the Code of Professional Responsibility. The relevant provisions of the Code of Professional Responsibility are as follows:

DR 1-102 Misconduct.

(A) A lawyer shall not:

(1) Violate a Disciplinary Rule.

. . . .

DR 6-101 Failing to Act Competently.

(A) A lawyer shall not:

. . . .

(3) Neglect a legal matter entrusted to him or her.

. . . .

DR 7-101 Representing a Client Zealously.

(A) A lawyer shall not intentionally:

. . . .

(2) Fail to carry out a contract of employment entered into with a client for professional services, but he or she may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105.

(3) Prejudice or damage his or her client during the course of the professional relationship, except as required under DR 7-102(B).

In his answer to these charges, McArthur admitted that he violated a disciplinary rule, DR 1-102(A)(1), and that he neglected the legal matter entrusted to him, DR 6-101(A)(3), but denied any intentional act under DR 7-101(A)(2) and (3).

Pursuant to Neb. Ct. R. of Discipline 10(F) (rev.1996), the NSBA filed additional formal charges alleging that while representing a client in a probation revocation case in 1996, McArthur violated DR 1-102(A)(1), (4), and (5) and DR 6-101(A)(3). The relevant provisions of the Code of Professional Responsibility for the additional charges, in addition to the ones set out above, are as follows: "DR 1-102 Misconduct. (A) A lawyer shall not: (1) Violate a Disciplinary Rule.... (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. (5) Engage in conduct that is prejudicial to the administration of justice." In his answer to the additional charges, McArthur denied violating any disciplinary rules.

This court referred the matter to a referee, pursuant to Neb. Ct. R. of Discipline 10(J) (rev.1996). The referee conducted a formal evidentiary hearing. McArthur was present and represented by counsel. As to the original formal charges, the referee found that the actions of McArthur constituted violations of his oath of office; violated a disciplinary rule, DR 1-102(A)(1); and neglected a legal matter entrusted to him, DR 6-101(A)(3). The referee did not find that McArthur violated DR 7-101(A)(2) or (3). As to the additional formal charges, the referee found that the evidence clearly and convincingly established that McArthur violated his oath and neglected a legal matter entrusted to him, DR 6-101(A)(3). The referee did not find that McArthur violated DR 1-102(A)(4) and (5). The referee recommended that McArthur be suspended from the practice of law for 6 months.

STANDARD OF REVIEW

A proceeding to discipline an attorney is a trial de novo on the record, in which this 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, the 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. Johnson, 256 Neb. 495, 590 N.W.2d 849 (1999). The charges against an attorney must be established by clear and convincing evidence. Id.

ASSIGNMENTS OF ERROR

In his response to the referee's report and in his brief to this court, McArthur assigns that the referee erred (1) in finding that McArthur neglected a matter entrusted to him by a client and (2) in recommending an excessive penalty of 6 month's suspension from practice.

ANALYSIS

A proceeding to discipline an attorney is a trial de novo on the record, in which this 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, the 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. Johnson, supra. Upon our de novo review of the record, we find the following facts:

McArthur was admitted to the practice of law in the State of Nebraska on September 17, 1993. At all times relevant hereto, McArthur was engaged in the private practice of law in Lancaster County, Nebraska.

McArthur was hired by Theresa Norfolk to defend her in an eviction action brought by Sunburst Properties, Inc. McArthur and Norfolk attended the eviction trial on December 31, 1996, at which time Sunburst Properties first cause of action for restitution of the premises was heard. The first cause of action was taken under advisement, and a hearing on the second and third causes of action for past-due rent and unlawful holdover was continued to a date to be set at a later time. On January 7, 1997, the county court entered a judgment for restitution of the premises in favor of Sunburst Properties and against Norfolk. A copy of the judgment was mailed to McArthur by the clerk of the county court, but McArthur failed to send a copy of the judgment to Norfolk or advise her of the same. McArthur denies receiving notice of the judgment for restitution. After being served with a writ of assistance by the sheriff of Lancaster County, Norfolk made arrangements to move out of her apartment. Norfolk attempted to contact McArthur by telephone, leaving a message asking why she had not been notified by McArthur of the county courts writ of restitution. McArthur failed to return the call. Norfolk subsequently received a bill from McArthur for the remainder of what she owed him, whereupon she called McArthur's office and left another message with the receptionist saying that she was not going to pay the bill until she talked to McArthur about why he did not contact her after the judgment was entered against her. Again, Norfolk received no response from McArthur. After the trial on December 31, 1996, Norfolk did not have any direct contact or communication with McArthur.

On January 1, 1997, McArthur moved from his offices at 3601 Calvert Street to 6201 South 58th Street, Lincoln, Nebraska. McArthur put in a forwarding address request for all correspondence with the U.S. Post Office and provided cards to courts and other counsel with whom he was doing business, advising of the change of address. However, McArthur did not file a specific notice in each case in which he was involved and, specifically, did not file a notice of a change of address with the county court in the case against Norfolk. McArthur testified that he later found out a substantial amount of his mail was sent to his old address and was not immediately forwarded.

On February 11, 1997, Mark S. Dickhute, counsel for Sunburst Properties, wrote McArthur a letter and sent it to McArthur's old business address at 3601 Calvert Street. The letter included an offer to settle the remaining claims against Norfolk and to dismiss with prejudice the balance of the petition if Norfolk paid prorated rent and late charges through January 12, 1997, in the amount of $282.48, attorney fees in the amount of $250, and court costs. The letter further stated that if the offer was not amenable to Norfolk, Dickhute would certify the matter for trial. McArthur received the letter but did not forward a copy of the letter to Norfolk or advise her of its contents.

Subsequently, Dickhute filed a motion for default judgment on the two remaining causes of action against Norfolk, seeking $282.48 for past-due rent, damages for willful holdover in the amount of $2,085, and attorney fees in the amount of $245. Dickhute mailed notice of the motion, as well as a notice of a hearing on said motion scheduled for February 28, 1997, to McArthur at his old business address, 3601 Calvert Street. McArthur received notice of the motion for default judgment and the hearing, and he appeared on February 28 for the hearing on the motion. McArthur did not contact or notify Norfolk about the default hearing. The county court denied the motion for default judgment and set the matter for trial on March 10. At the time of the hearing, Dickhute made the same offer of settlement that was previously offered in his February 11 letter. McArthur again failed to advise Norfolk of the settlement offer and failed to notify her of the March 10 trial date.

On March 5, 1997, Dickhute mailed a letter to the clerk of the county court, advising the court that he would be unavailable for trial on March 10 and requesting that the county court reschedule the trial date until sometime later in March. Dickhute also notified McArthur that he was unavailable for trial on March 10.

On March 6, 1997, the county court set the trial in the case against Norfolk for May 20 and mailed notice of that trial date to Dickhute and McArthur. Although it is unclear to what address the county court sent the notice to McArthur, it is clear that McArthur received the notice because, as discussed below, he sent his associate to court on May 20 to ensure the hearing was covered. McArthur again did not inform Norfolk of the trial date.

On May 16, 1997, the county court called the offices of both Dickhute and McArthur and advised that the...