State ex rel. Counsel for Dis. v. Gast , 296 Neb. 687 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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STATE EX REL. COUNSEL FOR DIS. v. GAST
Cite as 296 Neb. 687
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. William E. Gast, respondent.
___ N.W.2d ___
Filed May 19, 2017. No. S-15-800.
1. Disciplinary Proceedings: Appeal and Error. Because attorney disci-
pline cases are original proceedings before the Nebraska Supreme Court,
the court reviews a referee’s recommendations de novo on the record,
reaching a conclusion independent of the referee’s findings.
2. Disciplinary Proceedings. The basic issues in a disciplinary pro-
ceeding against an attorney are whether the Nebraska Supreme Court
should impose discipline and, if so, the appropriate discipline under
the circumstances.
3. Disciplinary Proceedings: Proof. Violation of a disciplinary rule con-
cerning the practice of law is a ground for discipline, and disciplinary
charges against an attorney must be established by clear and convinc-
ing evidence.
4. Disciplinary Proceedings. To determine whether and to what extent
discipline should be imposed in a lawyer 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.
5. ____. Cumulative acts of attorney misconduct are distinguishable from
isolated incidents, therefore justifying more serious sanctions.
6. ____. Responding to disciplinary complaints in an untimely manner
and repeatedly ignoring requests for information from the Counsel for
Discipline indicate a disrespect for our disciplinary jurisdiction and a
lack of concern for the protection of the public, the profession, and the
administration of justice.
7. ____. In evaluating attorney discipline cases, the Nebraska Supreme
Court considers aggravating and mitigating circumstances.
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8. ____. The propriety of a sanction must be considered with reference to
the sanctions imposed in prior similar cases.
Original action. Judgment of suspension.
Kent L. Frobish, Assistant Counsel for Discipline, for relator.
William E. Gast, pro se.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Per Curiam.
I. NATURE OF CASE
Attorney William E. Gast was charged by the Counsel
for Discipline with violating Neb. Ct. R. of Prof. Cond.
§§ 3-503.5(a)(1), 3-508.2(a), and 3-508.4(a) and (d), and vio-
lating his oath of office as an attorney as set forth in Neb.
Rev. Stat. § 7-104 (Reissue 2012). The charges were based on
a series of communications sent by Gast to Douglas County
District Court Judge Peter C. Bataillon and attorney Robert
Craig. We conclude that Gast violated these provisions as
charged and order that he be suspended from the practice of
law for a period of 1 year, to be followed by a period of 2
years’ probation upon reinstatement.
II. BACKGROUND
This disciplinary proceeding results from Gast’s con-
duct in the course of litigation in the case State of Florida
v. Countrywide Truck Ins. Agency1 in the district court for
Douglas County. The case has been appealed to this court
several times since it was originally filed in 1998.2 The
details of the litigation are summarized: The State of Florida,
1
State of Florida v. Countrywide Truck Ins. Agency, 294 Neb. 400, 883
N.W.2d 69 (2016).
2
See, State of Florida v. Countrywide Truck Ins. Agency, 275 Neb. 842, 749
N.W.2d 894 (2008); State of Florida v. Countrywide Truck Ins. Agency,
270 Neb. 454, 703 N.W.2d 905 (2005); State of Florida v. Countrywide
Truck Ins. Agency, 258 Neb. 113, 602 N.W.2d 432 (1999).
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STATE EX REL. COUNSEL FOR DIS. v. GAST
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Department of Insurance (Florida), was appointed as the
receiver of an insolvent Florida insurance company.3 Florida
pursued a claim on behalf of the insolvent company against
Countrywide Truck Insurance Agency, Inc. (Countrywide),
and its owner David L. Fulkerson, alleging that Fulkerson
converted money that was owed to the insolvent company for
his personal use. Gast began representing Fulkerson in early
2002. Fulkerson died in 2009, and his widow, Diederike M.
Fulkerson (Diederike), who was the executor of his estate,
was added as a defendant.
In the most recent appearance of that case before this
court, Gast appealed the district court’s order granting Florida
$15,000 in attorney fees as a sanction for a frivolous motion to
recuse that he had filed.4
Judge Bataillon had taken over the case from another judge
when that judge retired in 2000. Over the long course of the
Countrywide litigation, Gast became very dissatisfied with the
rulings of Judge Bataillon. He believed that Judge Bataillon
made “blatant errors of law.”
In 2004, Judge Bataillon denied Gast’s motion for partial
summary judgment on what Gast believed was an unsound
legal basis and which he believed “made absolutely no sense
whatsoever.” This led Gast to believe that “something is really
wrong here, something is really, really wrong.” Gast filed a
motion to recuse Judge Bataillon on the basis that one of his
prior orders contained errors that could reasonably be believed
to be based on either a lack of attention, a lack of ability, a
lack of impartiality, or some combination of these reasons.
The motion was denied by Judge Bataillon. Thereafter, Gast
filed an appeal and a writ of mandamus. The mandamus was
denied, and the appeal was dismissed for lack of a final,
appealable order.5 Gast testified at his disciplinary hearing that
3
See State of Florida v. Countrywide Truck Ins. Agency, supra note 1.
4
Id.
5
State of Florida v. Countrywide Truck Ins. Agency, supra note 2, 270 Neb.
454, 703 N.W.2d 905 (2005).
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after this point, “everything that happened . . . made it appear
to me that the outcome was being engineered.”
In 2006, the case was tried, and Gast was convinced the
result was “predetermined.” At the conclusion of the evidence,
Florida moved for a directed verdict, which the district court
granted.6 On appeal, this court reversed the directed verdict,
reasoning that the intent to defraud creditors is a factual ques-
tion that should have been decided by the jury.7
After Fulkerson died in 2009, Florida pursued its claim
against his estate in probate court, which denied the claim.
After this, Fulkerson’s estate was dropped as a defendant in
the district court litigation, but Florida continued pursuing its
claims against his widow, Diederike.
The case was retried to the bench and submitted in April
2014. After submitting proposed findings of fact and conclu-
sions of law to the court, Gast sent a “Personal, Private and
Confidential Memorandum” to Judge Bataillon and opposing
counsel Craig, dated April 15, 2014 (referred to as “exhibit
A”). The memorandum insinuated that “personal reasons”
were driving Judge Bataillon’s actions in the case. It states
in part:
I can only speculate as to your personal reasons, but
I choose not to. Unfortunately, whatever those might be,
they may indeed overwhelm [Diederike’s] health. If that
happens, how will you feel? Not good, I’m sure.
I have long accepted that I will die without ever know-
ing the real reason(s) for what has transpired in this
matter since I first became involved in early 2002. But
I do know that neither I, . . . Fulkerson, nor [Diederike]
have ever done anything to deserve the hostility that has
prevailed from my very initial involvement. Which, by
the way, long predated and actually necessitated the recu-
sal request.
6
State of Florida v. Countrywide Truck Ins. Agency, supra note 2, 275 Neb.
842, 749 N.W.2d 894 (2008).
7
Id.
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. . . Consider what it is doing to a very sweet 79-year-
old woman who deserves NONE of the emotional and
physical damage that this is causing her. Also, how it
could impact the integrity and reputation of an otherwise
respectable Judgeship. And third, the worsening conse-
quences to [Craig] for the mounting costs to Florida and
the [insolvent company’s] creditors.
....
Bottom line, this case is over, and you both know it.
The sooner that it is made official, the better it will be
for all concerned . . . especially the justice system of this
State, for which it has been a “black eye” for years. If it is
left to the Supreme Court to do so, it could be very ugly
indeed for everyone. Ending it now might allow for some
face-saving for all concerned, and for some well-deserved
relief for [Diederike].
This memorandum was sent about a week after the case was
submitted to the court.
In July 2014, Gast’s wife had lunch with the ex-wife of
Craig. She told Gast’s wife that Craig and Judge Bataillon
(then-attorney Bataillon) had been “best buds.” According
to Gast:
[Craig’s ex-wife] related parties, dinner engagements at
the Omaha Press Club, and the softball team on which . . .
Craig and [then-attorney] Bataillon played. She told me
the details, and they would have parties afterwards, and
sometimes they would go to bars, and the wives would
meet them, and she referred to Bataillon as Pete.
In August 2014, Gast filed a second motion to recuse Judge
Bataillon, citing Neb. Rev. Code of Judicial Conduct § 5-302.4
that “[a] judge shall not permit . . . social . . . interests or
relationships to influence the judge’s judicial conduct or judg-
ment.” The motion also stated:
This Motion is additionally based upon (among other
violations) newly-acquired evidence of this Court’s lack
of “impartiality,” lack of “independence,” and lack of
“integrity” (as those terms are defined in the Nebraska
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Code of Judicial Conduct) that existed from soon after
the Hon. Peter C. Bataillon inherited this action from the
Hon. Michael McGill and that has continuously persisted
throughout the period of more than twelve years to the
very date of this Motion.
It further alleged that Gast “very recently acquired reliable
information that, for a period of at least twenty years prior to
the appointment of . . . Judge Bataillon to the Douglas County
District Court, a very close personal friendship and continu-
ous social relationship had existed between” Judge Bataillon,
Craig, and Craig’s cocounsel. The petition alleged that the
relationship was never disclosed by Craig or Judge Bataillon
and that “the relationship has been improvidently, unethically
and continuously concealed by the Hon. Peter C. Bataillon,
Craig and [cocounsel] from the time Bataillon inherited this
case . . . until the very present day.”
The specific allegations in the motion to recuse included that
then-attorney Bataillon and Craig played on a summer softball
team together “for approximately three years in the 1970s or
early 1980s,” including socializing after games; attended par-
ties together at the cocounsel’s home; and attended dinners at
the Omaha Press Club.
Following the motion to recuse, Gast sent a letter to Judge
Bataillon and Craig (referred to as “exhibit B”). It said,
in part:
Now that the truth of your pre-suit relationship has
been discovered, the Docket Sheet itself demonstrates the
“cover-up” quality to each and every successive refusal
to disclose it after your initial failure to do so. Check
it out yourselves. It actually takes on a crescendo-like
appearance on its very face. The lesson about cover-ups
is that they usually come undone eventually, and the
consequences to those involved always amplify in direct
proportion to their pre-discovery duration. This “cover-
up” is more than 12 years old!
Judge, your responsibility is obvious and it is immedi-
ate. . . . You must now recuse sua sponte. And I trust that
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you will not force me to file the augmented Motion, or to
conduct a public hearing on it, or to serve the Subpoenas
or to take the Depositions.
Later in August 2014, the court held a hearing on the
motion to recuse. At the hearing, Judge Bataillon said, “The
only contact that I had with . . . Craig was probably in the
early ’80s I played on the same softball team with him for
maybe a year or two. That’s it.” Craig did not remember
being on the same softball team as Judge Bataillon during
the late 1970’s or early 1980’s, but had been told by Craig’s
cocounsel that Judge Bataillon had “played some” on the
team. Judge Bataillon was not persuaded by Gast’s claims.
He said:
At all times I have upheld the law. At all times I have
acted fairly and impartially based upon what the evidence
has been, based upon what the facts have been, and things
of that nature.
This allegation that I failed to disclose, there was noth-
ing to disclose that — that rises to any level under the
judicial ethics or any of the lawyers in this matter. As
such, your motion is overruled.
In September 2014, Gast sent another letter to Judge
Bataillon, urging him to recuse, citing a case from the Missouri
Court of Appeals.8 In this letter, Gast suggested that Judge
Bataillon had “badgered” Gast in a previous hearing and Gast
“insist[ed]” that Judge Bataillon recuse “at once, for your own
sake as much as anything else.”
In October 2014, Gast sent yet another letter to Judge
Bataillon (referred to as “exhibit C”), which said, in part:
Judge Bataillon, you should realize that you have an
ever-so-brief opportunity to quietly back out of this case
on a purely technical ground, i.e. one that is not related
to misconduct. Before you elect to pass it [sic] up this
chance, I respectfully submit that you think very carefully
about your own best interests.
8
Will. v. Reed, 6 S.W.3d 916 (Mo. App. 1999).
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STATE EX REL. COUNSEL FOR DIS. v. GAST
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(Emphasis in original.) In this letter, Gast references an inci-
dent in a prior hearing (after the motion to recuse hearing)
in which Judge Bataillon disclosed that he, his wife, and her
brother were eating dinner at a restaurant and noticed that
Craig was also eating in the restaurant. Judge Bataillon’s wife
went over and greeted Craig. Gast said in the letter that Judge
Bataillon, his wife, and his brother-in-law were all material
witnesses to the “recusal issue.” Gast wrote, “It is also extraor-
dinarily curious that such a meeting with . . . Craig might have
occurred purely by chance, at that very time.” He went on
to say:
Sir, since all of that makes it “material,” my client is enti-
tled to your own sequestered deposition in the event that
you refuse to recuse. Moreover, all conceivable means
of conventional and electronic communication between
yourself and . . . Craig will have to be subpoenaed, in
order to learn just how “chance” the . . . [r]estaurant
encounter actually was.
Gast also threatened to depose Judge Bataillon’s wife, his
brother-in-law, and Craig, “Unless, of course, you recuse now.”
He concluded, “Sir, I know that you will eventually do the
right thing. I just pray that it happens in time to do the most
justice to the office that you hold.”
In May 2015, Judge Bataillon entered judgment for Florida
in the approximate amount of $2.2 million. Later that month,
Judge Bataillon granted Florida’s motion for sanctions, con-
cluding that Gast’s motion to recuse was “‘groundless and
frivolous,’” and awarded $15,000 in attorney fees.9 On appeal,
this court did not review the district court’s award of attorney
fees, because Gast’s license to practice law was suspended
at the time he filed his brief, due to his failure to pay his
annual dues and complete his required continuing legal educa-
tion courses.10
9
State of Florida v. Countrywide Truck Ins. Agency, supra note 1, 294 Neb.
at 403, 883 N.W.2d at 71.
10
State of Florida v. Countrywide Truck Ins. Agency, supra note 1.
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STATE EX REL. COUNSEL FOR DIS. v. GAST
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Amended formal charges were filed against Gast in February
2016, to which Gast filed an answer. The charges were based
on three communications he sent to Judge Bataillon and Craig:
exhibit A, the memorandum sent in April 2014; exhibit B, the
letter sent in August 2014; and exhibit C, the letter sent in
October 2014.
A disciplinary hearing was held before a referee in June
2016, at which Gast and Craig testified. At the hearing, Gast
submitted an amended answer. The referee issued his report
and recommendation, making the recommended finding that
Gast had violated certain provisions of the Nebraska Rules
of Professional Conduct and recommending that Gast be sus-
pended for 30 days and placed on probation upon reinstate-
ment for a period of 2 years. The counsel for discipline filed
exceptions to the referee’s report and recommended findings
and a supporting brief, agreeing with some of the recom-
mended findings and disagreeing with others. Gast did not file
a brief or any exceptions. He appeared at oral arguments but
did not argue or make any comments.
1. Charges
Gast was charged with violating two particular provisions
of the Nebraska Rules of Professional Conduct in the amended
formal charges. These rules provide that “[a] lawyer shall
not: (1) seek to influence a judge . . . by means prohibited by
law”11 and that “[a] lawyer shall not make a statement that the
lawyer knows to be false or with reckless disregard as to its
truth or falsity concerning the qualifications or integrity of a
judge . . . .”12 Violation of these particular rules was alleged to
constitute a violation of the general rule against professional
misconduct, which provides: “It is professional misconduct
for a lawyer to: (a) violate or attempt to violate the Rules
of Professional Conduct [or] (d) engage in conduct that is
11
§ 3-503.5(a)(1).
12
§ 3-508.2(a).
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p­rejudicial to the administration of justice.”13 These viola-
tions also were alleged to violate Gast’s oath of office as an
attorney, as provided in § 7-104, which requires an attorney
to “solemnly swear [to] support the Constitution of the United
States, and the Constitution of this state, and [to] faithfully
discharge the duties of an attorney and counselor, according to
the best of [his or her] ability.”
Gast admitted that he had violated § 3-503.5(a)(1) of the
Nebraska Rules of Professional Conduct by seeking to improp-
erly influence Judge Bataillon by going “beyond arguing the
issues of the case and the facts in evidence therein.” But he
denied that he had violated § 3-508.2(a) by making a statement
that he knew was false or with reckless disregard as to its truth
or falsity concerning the integrity of Judge Bataillon.
2. Exceptions R ecommendations
to
R eferee
of
The Counsel for Discipline took exception to three of
the referee’s recommended findings and conclusions: (1) that
Gast did not make the statement in exhibit B with reckless
disregard for its truth or falsity, in violation of § 3-508.2(a);
(2) that Gast had withdrawn his admission that he violated
§ 3-503.5(a)(1) by sending exhibit C and that Gast did not
violate § 3-503.5(a)(1) by sending exhibit C; and (3) that Gast
be suspended for 30 days and given probation for 2 years upon
reinstatement.
III. STANDARD OF REVIEW
[1-3] Because attorney discipline cases are original proceed-
ings before this court, we review a referee’s recommendations
de novo on the record, reaching a conclusion independent
of the referee’s findings.14 The basic issues in a discipli­nary
proceeding against an attorney are whether the Nebraska
13
§ 3-508.4(a) and (d).
14
See State ex rel. Counsel for Dis. v. Walz, 291 Neb. 566, 869 N.W.2d 71
(2015).
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Supreme Court should impose discipline and, if so, the appro-
priate discipline under the circumstances.15 Violation of a dis-
ciplinary rule concerning the practice of law is a ground for
discipline, and disciplinary charges against an attorney must
be established by clear and convincing evidence.16
IV. ANALYSIS
1. § 3-503.5(a)(1): Seeking to Influence
Judge by Means Prohibited by Law
The referee recommended that we find that Gast had vio-
lated § 3-503.5(a)(1) with respect to exhibits A and B, but not
with respect to exhibit C. The Counsel for Discipline disagreed
with the referee’s recommended finding that Gast did not vio-
late § 3-503.5(a)(1) with respect to exhibit C.
The referee recommended we find that Gast violated
§ 3-503.5(a)(1) by authoring and transmitting exhibits A and
B on the basis that in his answer and at the hearing, Gast
admitted that those communications violated that provision.
But the referee made the recommended finding that Gast had
not violated this provision with respect to exhibit C for two
reasons. First, the referee appears to have concluded that Gast
withdrew the admission made in his answer that exhibit C
violated this provision. Second, the referee read our decision
in State ex rel. Counsel for Dis. v. Koenig,17 as supporting a
very narrow reading of the phrase “by means prohibited by
law” in § 3-503.5(a)(1). He concluded that Gast did not seek to
influence Judge Bataillon by means prohibited by law. We will
address these two issues in turn.
We agree that Gast clearly admitted in his answer that he
violated § 3-503.5(a)(1) by authoring and sending exhibit A.
15
Id.
16
State ex rel. Counsel for Dis. v. Ubbinga, 295 Neb. 995, ___ N.W.2d ___
(2017).
17
State ex rel. Counsel for Dis. v. Koenig, 278 Neb. 204, 769 N.W.2d 378
(2009).
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We do not agree that Gast withdrew his admission that he vio-
lated that provision by sending exhibit C.
Gast admitted in his answer that he authored the letter and
that by sending it, he “sought to improperly influence Judge
Bataillon in violation of § 3-503.5(a)(1) of the Nebraska Rules
of Professional Conduct.” And Gast stated at the hearing that
his answer admitted violating this rule with respect to exhib-
its A, B, and C. But in another part of his answer, he says of
exhibit C that “although its content remained within the facts
established on the record of the courtroom proceedings” of
the State of Florida v. Countrywide Truck Ins. Agency case,
“the threatening tone” of the letter, which was “transmitted
on a personal and confidential basis, may indeed be violative
of Comment [4] of § 3-503.5(a)(1) of the Nebraska Rules of
Professional Conduct.” The referee relied upon Gast’s state-
ments at the hearing, in which he appeared to equivocate on his
admission: “I’m now of the opinion [that] I was too hasty in
agreeing that this was offensive of any rule,” and “I now regret
the fact that I conceded a violation of Exhibit [C], but it’s in
the Answer.”
Gast acknowledged that he did, in fact, admit to a violation
of § 3-503.5(a)(1). At no point in the hearing did Gast seek
to withdraw his admission orally or to amend his answer. We
find that Gast has waived his right to contest the fact that he
violated § 3-503.5(a)(1) of the Nebraska Rules of Professional
Conduct by authoring and transmitting exhibits A and C.
Even if Gast had not made the admission, we conclude
that he did violate that rule by sending those exhibits. We
address this issue in order to clarify our interpretation
of § 3-503.5(a)(1) of the Nebraska Rules of Professional
Conduct and the Koenig case, which apparently caused some
confusion.
Section 3-503.5(a)(1), which is based on rule 3.5(a)(1)
of the American Bar Association (ABA) Model Rules of
Professional Conduct, prohibits attorneys from seeking to
influence a judge “by means prohibited by law.” The relevant
question is: What constitutes “means prohibited by law” for
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purposes of this rule? Does this include only criminal acts,
such as bribery? Or does “law” include rules of professional
conduct applicable to attorneys and judges?
The editors’ comments to § 3-503.5 of the Nebraska Rules
of Professional Conduct, as well as the ABA Model Rules of
Professional Conduct, state: “Many forms of improper influ-
ence upon a tribunal are proscribed by criminal law. Others are
specified in the ABA Model Code of Judicial Conduct, with
which an advocate should be familiar. A lawyer is required to
avoid contributing to a violation of such provisions.”18 This
comment appears to support a broader interpretation of the
term “means prohibited by law,” to include means prohibited
by the Nebraska Revised Code of Judicial Conduct.
The Restatement (Third) of the Law Governing Lawyers
states that “[a] lawyer may not . . . attempt to influence [a
judicial] officer otherwise than by legally proper procedures,”19
and explains in a comment that “[t]he lawyer codes impose
correlative duties on lawyers to avoid knowing participation
in a violation of the judicial codes.”20 This persuasive author-
ity (although not binding as are the Rules of Professional
Conduct) supports a broader understanding of the prohibition
on attempting to improperly influence a judge.
Similarly, other states with rules of professional conduct
based on the ABA Model Rules of Professional Conduct have
read rule 3.5(a) broadly.21 For example, the Supreme Court of
Louisiana expressly rejected an argument that the “phrase ‘by
means prohibited by law’ [in rule 3.5(a)] must be construed
18
§ 3-503.5, comment 1. Accord Model Rules of Prof. Conduct Rule 3.5,
comment 1 (ABA 2004).
19
Restatement (Third) of the Law Governing Lawyers § 113(2) at 191
(2000).
20
Id., comment f. at 193.
21
E.g., Louisiana State Bar Ass’n v. Harrington, 585 So. 2d 514 (La. 1990).
See, also, generally, Mississippi Bar v. Lumumba, 912 So. 2d 871 (Miss.
2005); In re Disciplinary Action Against Garaas, 652 N.W.2d 918 (N.D.
2002); Disciplinary Action Against Wilson, 461 N.W.2d 105 (N.D. 1990).
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narrowly to include only such activities as would amount
to obstruction of justice, public bribery, or other criminal
acts.”22 Instead the court said, “‘Conduct “prohibited by law”
clearly includes violations of criminal law and presumably
includes other acts that violate statutes, court rules, or other
legal norms.’”23 The court noted that the Rules of Professional
Conduct and the Code of Judicial Conduct have the force of
law and found that the attorney in that case violated rule 3.5(a)
by attempting to induce a judge to violate the judicial canon
prohibiting ex parte communications.24
The editors’ comments to the Nebraska Rules of Professional
Conduct, along with other persuasive authorities, support the
conclusion that § 3-503.5(a)(1)’s prohibition on attempting to
influence a judge “by means prohibited by law,” includes by
means prohibited by the Nebraska Revised Code of Judicial
Conduct and the Nebraska Rules of Professional Conduct, and
is not limited to means prohibited by criminal law.
Relevant to this case, § 5-302.4(B) of the Nebraska Revised
Code of Judicial Conduct provides: “A judge shall not permit
family, social, political, financial, or other interests or relation-
ships to influence the judge’s judicial conduct or judgment.”
The comment to that rule explains that “[a]n independent
judiciary requires that judges decide cases according to the
law and facts . . . .” (Emphasis supplied.) Section 5-302.4(A)
states: “A judge shall not be swayed by public clamor or fear
of criticism.” Neb. Rev. Code of Judicial Conduct § 5-302.9(C)
provides: “A judge shall not investigate facts in a matter inde-
pendently, and shall consider only the evidence presented and
any facts that may properly be judicially noticed.” And com-
ment 4 to § 3-503.5 of the Nebraska Rules of Professional
Conduct explains that “[t]he advocate’s function is to pre­
sent evidence and argument so that the cause may be decided
according to law.”
22
Louisiana State Bar Ass’n v. Harrington, supra note 21, 585 So. 2d at 521.
23
Id. at 521-22.
24
Id.
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Ours is a system in which judicial decisions must be made
on the basis of the evidence properly before the court and the
applicable law.25 Urging a judge to make a judicial decision
for reasons that go beyond the facts and law of the case may
constitute a violation of an attorney’s ethical obligations and
may constitute an invitation for the judge to violate his or her
own ethical duties. This is especially true when, as here, the
communication is made in private and outside the public light
of court room proceedings.
The referee perceived some tension between the broader
interpretation of the term “by means prohibited by law”
that the editors’ comments to the rule support and the nar-
rower interpretation the referee believed was supported by
our decision in Koenig.26 In Koenig, an attorney discipline
case, Lyle J. Koenig represented a person—who was an
associate in Koenig’s law practice—charged with driving
without a valid registration or proper proof of insurance.
Koenig photographed the license plate of the county attorney,
which was apparently also expired. He sent a picture of the
expired license plate along with a letter and a draft “‘Motion
to Appoint Special Prosecutor’” to prosecute the county
attorney for his expired vehicle registration.27 In the letter,
Koenig threatened to file the motion if the charges against
25
See, e.g., Matter of Boso, 160 W. Va. 38, 45, 231 S.E.2d 715, 718 (1977)
(“[c]ourts decide cases on the basis of facts and law”). See, also, generally,
e.g., McNair v. Campbell, 307 F. Supp. 2d 1277, 1332 (M.D. Ala. 2004),
affirmed in part, and in part reversed on other grounds 416 F.3d 1291
(11th Cir. 2005) (noting proposition that “the administration of justice
should be free from extraneous control and influence, that is, factors
outside the facts and law upon which a case is based”); Reed v. State, 232
Miss. 432, 434, 99 So. 2d 455, 456 (1958) (stating that trials “should be
decided on the facts and law, [free] of improper and irrelevant influences
and possible prejudices”); State v. Hansford, 43 W. Va. 773, 777, 28 S.E.
791, 793 (1897) (stating that “courts must decide solely upon the facts and
law of the case”).
26
State ex rel. Counsel for Dis. v. Koenig, supra note 17.
27
Id. at 205, 769 N.W.2d at 382.
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Koenig’s associate were not dropped and promised secrecy if
they were.
We found that Koenig’s actions constituted “conduct that
is prejudicial to the administration of justice,” in violation of
§ 3-508.4(d) of the Nebraska Rules of Professional Conduct.
We also concluded that Koenig had violated § 3-508.4(e)
by suggesting that he was able to influence a public official
through unethical means.
However, we found that Koenig had not violated
§ 3-508.4(b), which states that it is professional misconduct for
an attorney to “commit a criminal act that reflects adversely on
the lawyer’s honesty, trustworthiness or fitness as a lawyer in
other respects,” and that he had not violated § 3-503.5(a)(1).
We said:
In this case, the State of Nebraska has not brought a
charge of bribery or attempted bribery against Koenig.
There has been no trial or finding by any court that
Koenig was guilty of any crime associated with the mis-
conduct at issue. We decline to determine or hypothesize
whether Koenig’s misconduct in this case would consti-
tute a criminal act—i.e., an act that is deemed criminal,
beyond a reasonable doubt. For similar reasons, we also
conclude that there is insufficient evidence to show that
Koenig violated § 3-503.5(a) which provides that “[a]
lawyer shall not: (1) seek to influence a judge, juror,
prospective juror or other official by means prohibited by
law.” We therefore conclude that Koenig did not violate
§§ 3-503.5(a)(1) and 3-508.4(b).28
The referee in the present case appears to have concluded
that this section of our Koenig opinion adopted a narrow read-
ing of the phrase “by means prohibited by law.” But that sec-
tion does not constitute an endorsement of an interpretation
that limits the reach of § 3-503.5(a)(1) only to criminal acts.
As our analysis in the Koenig opinion shows (and our review
of the formal charges in that case confirms), the alleged
28
Id. at 210, 769 N.W.2d at 385 (emphasis supplied).
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violation of § 3-503.5(a)(1) was premised on the allegation
that Koenig had engaged in attempted bribery, not that he
had violated or urged the county attorney to violate the ethi-
cal duties under the Nebraska Rules of Professional Conduct.
To clarify any ambiguity, we disapprove of Koenig to the
extent that it can be read as limiting our interpretation of
§ 3-503.5(a)(1) to violations of criminal law alone.
We conclude that there is clear and convincing evidence
that Gast violated § 3-503.5(a)(1) by attempting to influence
Judge Bataillon “by means prohibited by law,” that is, by
means prohibited by the Nebraska Revised Code of Judicial
Conduct and by the Rules of Professional Conduct, when he
attempted to convince the judge to grant his motion to recuse
and rule in his favor in the case for reasons outside of the
evidence in the case and the applicable law, and through extra-
judicial communications.
In exhibit A, the memorandum that Gast sent to Judge
Bataillon and opposing counsel Craig, he urged the judge to
look to the applicable law in the case but then also urged him
and Craig to “examine your respective consciences in light
of your Christian upbringings.” He goes on to write, “I can
only speculate as to your personal reasons, but I choose not
to. Unfortunately, whatever those might be, they may indeed
overwhelm [Diederike’s] health. If that happens, how will you
feel? Not good, I’m sure.” By doing so, Gast urged the judge
to decide the case on the basis of his client’s health rather than
on the evidence in the case and the applicable law.
Gast went on to write, “I only ask now that each of you
carefully consider the consequences for not terminating it now,
before it gets beyond the control of any of us.” He then urged
the judge to decide the case on the basis of “how it could
impact the integrity and reputation of an otherwise respect-
able Judgeship.”
He then said, “If it is left to the Supreme Court” to reverse
on this basis, “it could be very ugly indeed for everyone.
Ending it now might allow for some face-saving for all con-
cerned, and for some well-deserved relief for [Diederike].”
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Here, Gast went beyond urging the court to decide on the basis
of the evidence in the case and the applicable law, but to rule
in his client’s favor for “some face-saving” and for the sake of
his client’s well-being.
In exhibit C, Gast urged Judge Bataillon to reconsider the
denial of his motion to recuse. He wrote to the judge that “you
should realize that you have an ever-so-brief opportunity to
quietly back out of this case on a purely technical ground, i.e.
one that is not related to misconduct.” (Emphasis in original.)
Gast then wrote, “Before you elect to pass it [sic] up this
chance, I respectfully submit that you think very carefully
about your own interests.” By writing this, Gast urged Judge
Bataillon to either “back out of this case on a purely techni-
cal ground,” presumably on Gast’s subject matter jurisdiction
argument, and to do so in order to protect the judge’s own
interests, his reputation.
Within exhibits A and C, Gast urged the judge to decide
the case on the basis of the judge’s reputation, the judge’s
“Christian upbringing[],” the judge’s own interests, and the
health and well-being of his client. But a judge is to make
judicial decisions on the basis of the facts of the case and the
applicable law.
By sending exhibits A and C, Gast violated § 3-503.5(a)(1)
by attempting to influence Judge Bataillon to violate the
Nebraska Revised Code of Judicial Conduct by deciding the
case on improper and legally irrelevant grounds. As advocates,
attorneys must “zealously assert[] the client’s position,” but
must do so “under the rules of the adversary system,” includ-
ing our ethical rules.29
We also pause to make clear that Gast’s conduct violated
§ 3-503.5(a)(1) not only because he went beyond arguing
the facts and the law of the case, but because he did so in
confidential, out-of-court communications. What made Gast’s
conduct unethical was that he not only made arguments that
29
Nebraska Rules of Professional Conduct, Preamble ¶ 2. See, also, State ex
rel. Counsel for Dis. v. Koenig, supra note 17.
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went beyond the evidence of the case and the applicable law,
but that he went outside of the judicial system and made these
improper arguments in private, confidential communications to
the judge.
2. § 3-508.2(a): M aking Statement With R eckless
Disregard as to Its Truth or Falsity
Concerning Integrity of Judge
The referee recommended that we find that there is not
clear and convincing evidence that Gast violated the Nebraska
Rules of Professional Conduct § 3-508.2(a) with respect to
exhibit B. Specifically, the referee found that while Gast’s
statement that Judge Bataillon engaged in a “cover-up” was
false, there is not clear and convincing evidence that Gast
made the statement with reckless disregard for its truth or
falsity. The Counsel for Discipline disagrees with the referee’s
recommended finding that Gast did not violate § 3-508.2(a).
We agree with the Counsel for Discipline.
Section 3-508.2(a) of the Nebraska Rules of Professional
Conduct states: “A lawyer shall not make a statement that the
lawyer knows to be false or with reckless disregard as to its
truth or falsity concerning the qualifications or integrity of a
judge . . . .” Comment 1 to § 3-508.2 explains that “false state-
ments by a lawyer can unfairly undermine public confidence in
the administration of justice.”
While not raised by Gast, the referee cites authority that
truth is an absolute defense to attorney sanctions for impugning
the integrity of a judge and that the disciplinary body bears the
burden of proving falsity.30 Counsel for Discipline has proved
by clear and convincing evidence that Gast’s allegation that
30
See Standing Committee v. Yagman, 55 F.3d 1430, 1438 (9th Cir. 1995)
(“[a]ttorneys who make statements impugning the integrity of a judge
are, however, entitled to other First Amendment protections applicable in
the defamation context. To begin with, attorneys may be sanctioned for
impugning the integrity of a judge or the court only if their statements are
false; truth is an absolute defense. . . . Moreover, the disciplinary body
bears the burden of proving falsity”).
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Judge Bataillon engaged in a “cover-up” of a friendship with
Craig was false.
Everyone agrees that Gast did not make a knowingly false
statement. That is, he did not make a false statement that
he believed to be false. By all accounts, Gast may have
believed that Judge Bataillon had engaged in a “cover-up” of a
friendship with Craig. The relevant question is whether, under
§ 3-508.2(a), Gast acted “with reckless disregard as to [the]
truth or falsity” of this allegation. We conclude that there is
clear and convincing evidence that he did.
Because the relevant inquiry is whether Gast made the
“cover-up” statement in exhibit B with reckless disregard as to
its truth or falsity, we will focus on his knowledge at that time.
We determine “reckless disregard” for the truth and falsity of a
statement about the qualifications or integrity of a judge under
§ 3-508.2(a) under an objective standard: “Did the attorney
lack any objectively reasonable basis for making the statement
at issue, considering its nature and the context in which the
statement was made?”31
In exhibit B, Gast accused Judge Bataillon and Craig of
engaging in a “cover-up” of their “pre-suit relationship.”
He wrote:
Now that the truth of your pre-suit relationship has
been discovered, the Docket Sheet itself demonstrates the
“cover-up” quality to each and every successive refusal
to disclose it after your initial failure to do so. Check
it out yourselves. It actually takes on a crescendo-like
31
See In re Dixon, 994 N.E.2d 1129, 1137 (Ind. 2013) (interpreting
identical provision under Indiana Professional Conduct Rules). See, also,
Board of Prof. Responsibility v. Davidson, 205 P.3d 1008, 1014 (Wyo.
2009) (“[d]eterminations of recklessness under [the Wyoming Rules
of Professional Conduct] are made using an objective, rather than a
subjective standard. . . . This means that the attorney must have had an
‘objectively reasonable’ basis for making the statements. . . . In other
words, the standard is whether a reasonable attorney would have made the
statements, under the circumstances, not whether this particular attorney,
with her subjective state of mind, would have made the statements”).
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appearance on its very face. The lesson about cover-ups
is that they usually come undone eventually, and the
consequences to those involved always amplify in direct
proportion to their pre-discovery duration. This “cover-
up” is more than 12 years old!
A coverup is generally defined as “[a]n attempt to prevent
authorities or the public from discovering the truth about
something; [especially] the concealment of wrongdoing by
a conspiracy of deception, nondisclosure, and destruction of
evidence,” and “[a] cover-up often involves obstruction of
justice.”32 It has also been defined as “a device or stratagem
for masking or concealing” and “a [usually] concerted effort to
keep an illegal or unethical act or situation from being made
public.”33 Thus, accusing a judge of a “cover-up” of a relation-
ship with counsel is an accusation that the judge has purpose-
fully concealed an intentional violation of the judge’s ethical
obligations. No reasonable attorney would make such an accu-
sation lightly and without a significant basis in fact.
While he has failed to file a brief with this court, Gast’s
answer appears to dispute the charged violation of § 3-508.2(a)
on the basis that his statement that Judge Bataillon and Craig
had engaged in a coverup “did not constitute a declarative state-
ment of fact which could be deemed to be true or false[, but,
rather,] constituted only a possible characterization, description
or conclusion which could be derived from other facts.” To the
extent that this constitutes an argument that his statements are
not subject to § 3-508.2(a) because they are merely expressions
of opinion, not of fact, we disagree. As discussed above, the
term “coverup” connotes an active concealment of improper
or unethical conduct. This is not merely a subjective statement
of opinion, but an allegation susceptible to an objective, fac-
tual inquiry.
At the time he sent exhibit B, Gast’s only basis of knowledge
upon which he may have reached his conclusion that Judge
32
Black’s Law Dictionary 446 (10th ed. 2014).
33
Merriam-Webster’s Collegiate Dictionary 267 (10th ed. 2001).
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Bataillon had engaged in a coverup was Gast’s wife’s conver-
sation with Craig’s ex-wife. At the time he sent the letter, he
had not followed up with any of the individuals whose names
he was given to substantiate the claim that Judge Bataillon and
Craig had been friends. None of the facts provided to Gast, as
relayed by Gast in his testimony, show anything but a general
social acquaintance between the two. They played on the same
softball team and socialized with the team and the players’
spouses afterward, and also attended some of the same social
events. Gast’s motion to recuse, filed days before he sent
exhibit B, shows that he knew the two played on the same soft-
ball team for only 3 years during the 1970’s or early 1980’s,
well over 30 years earlier. He had no evidence of a continu-
ing relationship. Most importantly, Gast had no evidence that
either Craig or Judge Bataillon had acted to intentionally cover
up any past relationship.
No reasonable attorney would accuse a judge of not only
violating his ethical duty to disclose potential conflicts but of
covering up a relationship with counsel on the sole basis of
knowledge (obtained from the counsel’s ex-spouse) that the
two had decades earlier been general social acquaintances. No
reasonable attorney would conclude that a failure to disclose an
acquaintance with counsel from over 30 years ago was due to
an attempt to cover up the relationship, rather than because the
fact of the acquaintance was trivial or had been forgotten. No
reasonable attorney would make this accusation without first
obtaining a significant factual basis to substantiate it.
But Gast did not substantiate his claim before accusing
Judge Bataillon of engaging in a coverup. His letters display
an almost conspiracy-theory-like obsession with his belief that
Judge Bataillon was biased against him. While any attorney,
as a zealous advocate, is disappointed when he or she loses
an argument the attorney feels should have been won, Gast’s
behaviors exceed reasonable conduct. A reasonable attorney
would have amassed extensive substantiating evidence before
lodging such a serious accusation of bias and unethical con-
duct against a judge. But Gast took the unremarkable fact of a
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decades-ago social acquaintance between the judge and coun-
sel to conclude that Judge Bataillon had engaged in a coverup.
We find by clear and convincing evidence that Gast made the
accusation of a coverup with reckless disregard as to its truth
or falsity, in violation of § 3-508.2(a) of the Nebraska Rules of
Professional Conduct.
3. Other Provisions
Gast admitted in his answer that he had violated the other
provisions he was accused of violating: § 3-508.4(a) and (d)
(violating rules of professional conduct and engaging in con-
duct prejudicial to administration of justice). We agree with the
referee that Gast has waived any objection to the charges that
he violated these provisions.
4. Oath of Office
Gast’s oath of office as an attorney under § 7-104 includes
the commitment to “faithfully discharge the duties of an attor-
ney and counselor, according to the best of [one’s] ability.”
By violating the Nebraska Rules of Professional Conduct as
discussed above, he violated his oath of office.
5. Sanction
[4-8] Having concluded that Gast violated the Rules of
Professional Conduct and his oath of office as attorney, we
must determine the appropriate sanction. To determine whether
and to what extent discipline should be imposed in a lawyer
discipline proceeding, we consider 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.34 Cumulative acts of attor-
ney misconduct are distinguishable from isolated incidents,
34
State ex rel. Counsel for Dis. v. Tighe, 295 Neb. 30, 886 N.W.2d 530
(2016).
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therefore justifying more serious sanctions.35 Responding to
disciplinary complaints in an untimely manner and repeat-
edly ignoring requests for information from the Counsel for
Discipline indicate a disrespect for our disciplinary jurisdic-
tion and a lack of concern for the protection of the public, the
profession, and the administration of justice.36 In evaluating
attorney discipline cases, we consider aggravating and miti-
gating circumstances.37 The propriety of a sanction must be
considered with reference to the sanctions imposed in prior
similar cases.38
(a) Mitigating Factors
One mitigating factor is the fact that Gast has no prior his-
tory of discipline in his over four decades of legal practice in
this state. While his license was suspended for a time due to
his failure to pay his dues and complete his continuing legal
education requirements, this did not involve a violation of the
Rules of Professional Conduct.
Additionally, Gast’s behavior does not appear to pose a risk
to his clients or the public. It does not appear that his behav-
ior here harmed his client in any way. In fact, he seemed to
be motivated by a desire to serve his client, albeit in a seri-
ously misguided manner. Gast appears to be a competent and
capable attorney.
(b) Aggravating Factors
One of the chief aggravating factors is Gast’s lack of
remorse. At the hearing in this case, he stated several times
that he did not regret sending the letter. He also stated, “I
regret only the tone. There isn’t anything in here that isn’t
absolutely true. There isn’t anything in here that isn’t abso-
lutely appropriate . . . .”
35
Id.
36
Id.
37
Id.
38
Id.
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Gast seems to lack any appreciation of how serious his vio-
lations were and how baseless and inappropriate his attacks
on the integrity of Judge Bataillon were. What is troubling is
Gast’s inability to see anything wrong with his conduct. His
lack of remorse is a significant aggravating factor, as is the
serious nature of his infractions.
We also agree with the referee that during the hearing in
this case, Gast engaged in unnecessary and inappropriate ver-
bal attacks on the Counsel for Discipline. The Counsel for
Discipline has an important job to do in our profession and has
performed that job ably in this case.
V. CONCLUSION
We conclude that the appropriate sanction is suspension
from the practice of law for a period of 1 year, effective from
March 3, 2017. After 1 year from the date of his suspension,
Gast may apply for reinstatement. His reinstatement shall be
conditioned on his being on probation for a period of 2 years.
Gast is also directed to pay costs and expenses in accordance
with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and
Neb. Ct. R. §§ 3-310(P) (rev. 2014) and 3-323(B) of the disci-
plinary rules within 60 days after an order imposing costs and
expenses, if any, is entered by the court.
Judgment of suspension.