State Of Neb. Ex Rel. Counsel For Discipline Of The Neb. Supreme Court v. Switzer

• Decision Date: 12 November 2010
• Docket Number: No. S-09-1095.,S-09-1095.
• Citation: 280 Neb. 815,790 N.W.2d 433
• Parties: STATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, relator, v. William L. SWITZER, Jr., respondent.
• Court: Nebraska Supreme Court

280 Neb. 815

790 N.W.2d 433

STATE of Nebraska ex rel. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, relator,

v.William L. SWITZER, Jr., respondent.

No. S-09-1095.

Supreme Court of Nebraska.

Nov. 12, 2010.

COPYRIGHT MATERIAL OMITTED.

Syllabus by the Court

1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de novo on the record.

2. Disciplinary Proceedings: Proof. To sustain a charge in a disciplinary proceeding against an attorney, the Counsel for Discipline must establish a charge by clear and convincing evidence.

3. Disciplinary Proceedings: Appeal and Error. When no exceptions to the referee's findings of fact are filed, the Nebraska Supreme Court may consider the referee's findings final and conclusive.

4. Disciplinary Proceedings. The basic issues in a disciplinary proceeding against an attorney are whether the Nebraska Supreme Court should impose discipline and, if so, the appropriate discipline under the circumstances.

5. Disciplinary Proceedings. To determine whether and to what extent discipline should be imposed in an attorney discipline proceeding, the Nebraska Supreme Court considers the following factors: (1) the nature of the offense, (2) the need for deterring others, (3) the maintenance of the reputation of the bar as a whole, (4) the protection of the public, (5) the attitude of the offender generally, and (6) the offender's present or future fitness to continue in the practice of law.

6. Disciplinary Proceedings. In imposing attorney discipline, the Nebraska Supreme Court evaluates each case in the light of its particular facts and circumstances.

7. Disciplinary Proceedings. In determining the proper discipline of an attorney, the Nebraska Supreme Court considers the attorney's acts both underlying the events of the case and throughout the proceeding.

8. Disciplinary Proceedings. When determining appropriate discipline of an attorney, the Nebraska Supreme Court considers aggravating and mitigating factors.

9. Disciplinary Proceedings. Because cumulative acts of attorney misconduct are distinguishable from isolated incidents, they justify more serious sanctions.

10. Disciplinary Proceedings. In a disciplinary proceeding, an isolated incident not representing a pattern of conduct is considered a mitigating factor.

11. Disciplinary Proceedings. Cooperation during attorney disciplinary proceedings and remorse are relevant mitigating factors.

12. Disciplinary Proceedings. In a disciplinary proceeding, it is necessary to consider the discipline that the Nebraska Supreme Court has imposed in cases presenting similar circumstances.

13. Disciplinary Proceedings: Proof. To establish depression as a mitigating factor in a proceeding to discipline an attorney, the respondent must show (1) medical evidence that he or she is affected by depression, (2) that the depression was a direct and substantial contributing cause to the misconduct, and (3) that treatment of the depression will substantially reduce the risk of further misconduct. These are questions of fact.

14. Disciplinary Proceedings. When depression is established as a mitigating factor, it does not automatically result in a less severe punishment.

15. Disciplinary Proceedings. In a disciplinary proceeding, failure to comply with Neb. Ct. R. § 3-316 places one in contempt of court and constitutes an aggravating circumstance.

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

Michael D. McClellan, of Gast & McClellan, Omaha, for respondent.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

PER CURIAM.

In 2008, we suspended William L. Switzer, Jr., from the practice of law for 18 months for violating the professional rules and his oath of office. ¹ Switzer, however, did not comply with our decision. He agreed to represent new and existing clients and took fees from new clients. The Counsel for Discipline soon filed formal charges against Switzer for his conduct after his suspension. Switzer does not deny the charges; instead, he argues that his depression should mitigate any discipline we impose. We conclude that even if his depression is mitigation, it is not sufficient mitigation considering Switzer's history and conduct. We disbar Switzer.

BACKGROUND

Switzer was admitted to the bar in 1987. He has been disciplined before. The first instance occurred in 1994, when he was reprimanded for neglecting a client's dental malpractice case and misrepresenting the progress of the case to the client. Switzer told his client that he had filed the lawsuit when he had not. He also said that he had talked to the dentist about potential settlements when he had not done so. He was privately reprimanded for violations of Canon 1, DR 1-102(A)(1) and (6), and Canon 6, DR 6-101(A), of the former Code of Professional Responsibility. In 1999, Switzer was again in trouble. He failed to timely withdraw his appearance in a case after the client had discharged him. This violated DR 1-102(A)(1) and Canon 2, DR 2-110(B)(4), of the Code of Professional Responsibility, and he was privately reprimanded.

The events leading up to the present matter began in 2005. They were the subject of our opinion in State ex rel. Counsel for Dis. v. Switzer. ² Switzer had been retained by two clients to draft and file the necessary paperwork to have the clients named as their mother's coguardians and coconservators. Shortly after they retained Switzer, another party was named guardian and conservator. Switzer was aware of this but failed to name the party when he filed an ex parte emergency action to have his clients named as coguardians and coconservators. When this omission was discovered, the clients' appointment was terminated. Switzer failed to timely notify his clients of their termination. He was also evasive when the clients called to speak to him-in one instance, leaving the client on hold for an hour.

The clients wrote to Switzer to terminate the attorney-client relationship. They requested an accounting of services rendered, which he never gave. The clients then hired new counsel, who requested the file. Switzer never complied.

The clients then contacted the Counsel for Discipline, who in turn contacted Switzer. In his communications with the Counsel for Discipline, Switzer often failed to respond “ ‘properly and adequately.’ ” ³ At one point, Switzer attempted to mislead the Counsel for Discipline by fabricating a letter.

We concluded that Switzer's conduct violated several rules of professional conduct and his oath of office. The referee suggested a 1-year suspension, but we rejected that suggestion and instead imposed an 18-month suspension that began immediately on June 13, 2008. The federal courts suspended Switzer shortly thereafter.

The current charges against Switzer stem from his conduct after his suspension. In count I, the Counsel for Discipline alleges that Switzer continued to represent a client after his suspension. He told the client in September 2008-during his suspension-that he would file a bankruptcy petition. Switzer failed to inform his clients that his license had been suspended. When Switzer was served with the grievance, he failed to file an answer within the required period. The Counsel for Discipline charged Switzer with violating his oath of office as an attorney, Neb. Ct. R. § 3-309(E), and the following provisions of the Nebraska Rules of Professional Conduct: Neb. Ct. R. of Prof. Cond. §§ 3-501.3, 3-501.4, 3-505.5, and 3-508.4.

Count II alleges similar facts with different clients, namely that during Switzer's suspension, he said he would file a bankruptcy petition for his clients. He failed to communicate with his clients. Count II is different from count I in that it alleges that Switzer accepted fees during his suspension. Switzer again failed to answer the grievance filed regarding this incident. Switzer did refund the fees to the clients after the grievances were filed. The Counsel for Discipline alleges that these acts violated Switzer's oath of office, § 3-309(E), and the following provisions of the Nebraska Rules of Professional Conduct:

§§ 3-501.3, 3-501.4, and 3-508.4, and Neb. Ct. R. of Prof. Cond. § 3-501.15.

Count III again alleges similar facts. It alleges that Switzer took fees and agreed to file a bankruptcy petition for a client during his suspension but did not tell the client that he was suspended. And he again failed to communicate with the client regarding the bankruptcy petition. When the client found out about Switzer's suspension, he placed a stop order on the checks he had written to Switzer. This cost the client $90. The Nebraska State Bar Association's client assistance fund reimbursed the client for these costs, and Switzer later reimbursed the client assistance fund. But he again failed to respond to the grievance filed against him. The Counsel for Discipline claims that Switzer's conduct violated his oath of office, § 3-309(E), and the following provisions of the Nebraska Rules of Professional Conduct: §§ 3-501.3, 3-501.4, 3-505.5, and 3-508.4.

Count IV alleges that Switzer was hired to represent a client in a divorce proceeding during his suspension and that he received a fee. Switzer failed to tell the client that his license had been suspended and failed to return telephone calls to keep the client informed. When the client learned of Switzer's suspension, he asked the client assistance fund to reimburse his fees, which it did. Switzer later reimbursed the fund for the fees. Like all the other counts in this proceeding, when served with the initial grievance, Switzer failed to respond. The Counsel for Discipline alleges that by these acts and omissions, Switzer violated his oath of office as an attorney, § 3-309(E), and the following provisions of the Nebraska Rules of Professional Conduct: §§ 3-501.3, 3-501.4, 3-501.15, 3-505.5, and 3-508.4.

In June 2010, a referee issued a report and recommendation. The referee...