State ex rel. Counsel for Dis. v. Troshynski , 300 Neb. 763 ( 2018 )


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    09/21/2018 12:10 AM CDT
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    STATE EX REL. COUNSEL FOR DIS. v. TROSHYNSKI
    Cite as 
    300 Neb. 763
    State     of     Nebraska ex rel. Counsel for Discipline
    of the      Nebraska Supreme Court, relator,
    v. M artin J. Troshynski, respondent.
    ___ N.W.2d ___
    Filed August 17, 2018.   No. S-17-269.
    Original action. Judgment of suspension.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Papik, JJ.
    Per Curiam.
    INTRODUCTION
    On March 15, 2017, formal charges containing one count
    were filed by the office of the Counsel for Discipline of the
    Nebraska Supreme Court, relator, against respondent, Martin J.
    Troshynski. Respondent filed an answer to the charges on July
    19. A referee was appointed on September 5. On November
    8, relator filed amended formal charges after obtaining leave
    of this court to do so. The referee conducted a hearing on
    December 19.
    The referee filed a report on January 9, 2018. With respect
    to the charges, the referee concluded that through respond­
    ent’s conduct, he had breached the following provisions of
    the Nebraska Court Rules of Professional Conduct: Neb. Ct.
    R. of Prof. Cond. §§ 3-501.3 (diligence), 3-501.4(a)(3) and
    (4) (communication), 3-503.4 (fairness to opposing party and
    counsel), 3-508.1(b) (responding to bar admission and disci-
    plinary matters), and 3-508.4(a) and (d) (conduct prejudicial
    to administration of justice) (rev. 2016). The referee further
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    STATE EX REL. COUNSEL FOR DIS. v. TROSHYNSKI
    Cite as 
    300 Neb. 763
    found that respondent had violated his oath of office as an
    attorney licensed to practice law in the State of Nebraska. See
    Neb. Rev. Stat. § 7-104 (Reissue 2012). With respect to the
    discipline to be imposed, the referee recommended suspen-
    sion of respondent’s license to practice law for a period of 45
    days, with a period of supervision of 2 years upon readmis-
    sion. Respondent agreed to the proposed sanction. Neither
    relator nor respondent filed exceptions to the referee’s report.
    Relator filed a motion for judgment on the pleadings under
    Neb. Ct. R. § 3-310(L) (rev. 2014) of the disciplinary rules.
    Respondent did not respond to the motion. We grant the
    motion for judgment on the pleadings and impose discipline
    as indicated below.
    FACTS
    Respondent was admitted to the practice of law in the State
    of Nebraska on September 14, 1990. At all times relevant to
    these proceedings, he has practiced in North Platte, Nebraska.
    The substance of the referee’s findings may be summarized
    as follows: respondent has been practicing for 27 years, is cur-
    rently a solo practitioner, and his current law practice involves
    criminal defense and general practice. The violations arise
    from respondent’s conduct with respect to two cases.
    T.W. and G.D.’s Case.
    In April 2010, T.W. and G.D. retained respondent to repre-
    sent them in matters arising from their injuries from an auto-
    mobile collision, and in 2013, respondent filed a complaint in
    the district court for Lincoln County on their behalf. In the
    course of that suit, the defendants served discovery requests to
    respondent in December 2013, but respondent did not provide
    the requested documents in 2014 or most of 2015, despite three
    motions to compel discovery relating to that 2013 request. On
    August 13, 2015, respondent failed to appear at a hearing and
    the district court ordered him to provide the requested docu-
    ments or the case would be dismissed. Respondent failed to
    comply with the court’s order, and the case was dismissed
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    STATE EX REL. COUNSEL FOR DIS. v. TROSHYNSKI
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    without prejudice on September 3, 2015. Respondent did not
    notify his clients. T.W. and G.D. learned of the dismissal from
    another source and not from respondent. After respondent filed
    a series of motions attempting to reinstate the case, T.W. and
    G.D.’s lawsuit was ultimately dismissed.
    When relator twice requested respondent’s client files
    regarding T.W. and G.D, respondent failed to respond for
    approximately 4 months.
    W.N.’s Case.
    W.N. retained respondent to represent her in a personal
    injury case arising out of a 2006 automobile collision.
    Respondent filed a complaint in the case in the district
    court for Lincoln County in January 2010. On October 21,
    the defendants sent a discovery request to respondent. On
    July 16, 2012, respondent filed a stipulation to continue the
    matter in which the parties agreed that additional time was
    needed to conduct discovery. On February 5, 2013, the court
    dismissed the case for lack of prosecution. Respondent was
    able to reinstate the case, but continued to fail to respond to
    discovery. The case was dismissed again without prejudice
    after respondent failed to file a response to the court’s order
    to show cause. Respondent failed to communicate with W.N.
    in 2015 and 2016. On June 28, 2017, respondent notified
    W.N. that the matter had been dismissed by the court 2 years
    prior thereto.
    In the referee’s report filed January 9, 2018, the referee
    found that respondent violated the Nebraska Court Rules of
    Professional Conduct: §§ 3-501.3 (diligence), 3-501.4(a)(3)
    and (4) (communication), 3-503.4 (fairness to opposing party
    and counsel), 3-508.1(b) (responding to bar admission and
    disciplinary matters), and 3-508.4(a) and (d) (conduct prejudi-
    cial to administration of justice), as well as his oath of office
    as an attorney. The referee noted in his report that respondent
    agreed with the stipulated facts and accepts full responsibility
    for failing to respond to discovery requests and for the dis-
    missal of his clients’ cases outside of the statute of limitations.
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    STATE EX REL. COUNSEL FOR DIS. v. TROSHYNSKI
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    The referee noted that respondent previously had received a
    private reprimand.
    In mitigation, respondent testified that he had stage “IIIA
    melanoma” and the court received evidence of cancer treatment
    side effects. The referee noted that numerous attorneys submit-
    ted affidavits regarding respondent’s honorable character and
    his work to assist other attorneys and clients. As for the disci-
    pline imposed, the referee recommended a 45-day suspension
    with 2 years of supervision upon reinstatement.
    ANALYSIS
    A proceeding to discipline an attorney is a trial de novo on
    the record. State ex rel. Counsel for Dis. v. Gast, 
    298 Neb. 203
    ,
    
    903 N.W.2d 259
    (2017). To sustain a charge in a disciplinary
    proceeding against an attorney, a charge must be established by
    clear and convincing evidence. State ex rel. Counsel for Dis. v.
    Island, 
    296 Neb. 624
    , 
    894 N.W.2d 804
    (2017). Violation of a
    disciplinary rule concerning the practice of law is a ground for
    discipline. 
    Id. Based on
    the record and the findings of the referee, we
    find that the above-referenced undisputed facts have been
    established by clear and convincing evidence. Based on the
    foregoing evidence, we conclude that by virtue of respondent’s
    conduct, respondent has violated §§ 3-501.3, 3-501.4(a)(3) and
    (4), 3-503.4, 3-508.1(b), and 3-508.4(a) and (d) of the profes-
    sional conduct rules. We specifically conclude that respondent
    has violated his oath of office as an attorney, see § 7-104.
    Accordingly, we grant relator’s motion for judgment on
    the pleadings.
    We have stated that the basic issues in a disciplinary pro-
    ceeding against an attorney are whether discipline should be
    imposed and, if so, the appropriate discipline under the circum-
    stances. State ex rel. Counsel for Dis. v. 
    Island, supra
    . Neb. Ct.
    R. § 3-304 of the disciplinary rules provides that the following
    may be considered as discipline for attorney misconduct:
    (A) Misconduct shall be grounds for:
    (1) Disbarment by the Court; or
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    (2) Suspension by the Court; or
    (3) Probation by the Court in lieu of or subsequent to
    suspension, on such terms as the Court may designate; or
    (4) Censure and reprimand by the Court; or
    (5) Temporary suspension by the Court; or
    (6) Private reprimand by the Committee on Inquiry or
    Disciplinary Review Board.
    (B) The Court may, in its discretion, impose one or
    more of the disciplinary sanctions set forth above.
    See, also, § 3-310(N) of the disciplinary rules.
    With respect to the imposition of attorney discipline in an
    individual case, each attorney discipline case must be evaluated
    in light of its particular facts and circumstances. State ex rel.
    Counsel for Dis. v. 
    Island, supra
    . For purposes of determining
    the proper discipline of an attorney, this court considers the
    attorney’s actions both underlying the events of the case and
    throughout the proceeding, as well as any aggravating or miti-
    gating factors. 
    Id. To determine
    whether and to what extent discipline should
    be imposed in an attorney discipline proceeding, this 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 pub-
    lic, (5) the attitude of the respondent generally, and (6) the
    respondent’s present or future fitness to continue in the practice
    of law. 
    Id. We have
    considered prior discipline including rep-
    rimands as aggravators. State ex rel. Counsel for Dis. v. Nich,
    
    279 Neb. 533
    , 
    780 N.W.2d 638
    (2010).
    The evidence in the present case establishes that respondent
    inexcusably failed to comply with discovery requests, attend
    hearings, and keep his clients informed. He failed to com-
    municate with clients for long periods of time and failed to
    keep them informed regarding the dismissal of their matters.
    When contacted by relator, respondent failed to immediately
    respond to requests for records. The referee determined that
    the evidence showed that the clients were distraught and found
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    it frustrating to deal with respondent and suffered greatly from
    respondent’s negligence.
    The referee recommended discipline in the form of a 45-day
    suspension followed by 2 years of probation with a prac-
    tice monitor. The referee took into account respondent’s prior
    private reprimand. The referee also considered the fact that
    respondent had cancer and the showing of support for respond­
    ent by members of the legal community and the fact that
    respondent is a “substantial asset to the bar.”
    We have considered the record, the findings which have
    been established by clear and convincing evidence, and the
    applicable law. Upon due consideration, the court finds that the
    referee’s recommendation of a 45-day suspension and, upon
    successful application for reinstatement, 2 years of monitored
    probation is appropriate. See State ex rel. Counsel for Dis. v.
    Pivovar, 
    288 Neb. 186
    , 
    846 N.W.2d 655
    (2014). No exceptions
    were taken to the referee’s recommendation, and we hereby
    adopt it.
    Having imposed a period of suspension, respondent is
    ordered to comply with Neb. Ct. R. § 3-316 (rev. 2014), and
    upon failure to do so, he shall be subject to punishment for
    contempt of this court. We also direct respondent to pay costs
    and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and
    7-115 (Reissue 2012), § 3-310(P), and Neb. Ct. R. § 3-323(B)
    within 60 days after an order imposing costs and expenses, if
    any, is entered by this court.
    At the end of the 45-day suspension, respondent may apply
    to be reinstated to the practice of law, provided that he has
    demonstrated his compliance with § 3-316 and further pro-
    vided that relator has not notified this court that respondent
    has violated any disciplinary rule during his suspension. Upon
    reinstatement, respondent shall complete 2 years of monitored
    probation. During the period of probation, respondent will be
    monitored by an attorney licensed to practice law in the State
    of Nebraska and approved by relator. The monitoring plan
    shall include, but not be limited to, the following:
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    (1) On a monthly basis, respondent shall provide the moni-
    toring attorney with a list of all cases for which respondent is
    then currently responsible, said list to include the following
    information for each case: (a) the date the attorney-client rela-
    tionship began, (b) the type of case (i.e., criminal, dissolution,
    probate, contract, et cetera), (c) the date of the last contact
    with the client, (d) the last date and type of work completed
    on the case, (e) the next type of work and date to be completed
    on the case, and (f) any applicable statute of limitations and
    its date;
    (2) On a monthly basis, respondent shall meet with the
    monitoring attorney to discuss respondent’s pending cases;
    (3) Respondent shall work with the monitoring attorney to
    develop and implement appropriate office procedures to ensure
    that client matters are handled in a timely manner; and
    (4) If at any time the monitoring attorney believes respond­
    ent has violated a disciplinary rule or has failed to comply with
    the terms of probation, the monitoring attorney shall report the
    same to relator.
    CONCLUSION
    The motion for judgment on the pleadings is granted. We find
    that respondent violated conduct rules §§ 3-501.3, 3-501.4(a)(3)
    and (4), 3-503.4, 3-508.1(b), and 3-508.4(a) and (d), as well as
    his oath of office as an attorney, see § 7-104. It is the judgment
    of this court that respondent is suspended from the practice
    of law for a period of 45 days, effective immediately. It is
    the further judgment of this court that upon completion of the
    period of suspension and upon successful application for rein-
    statement to the bar, respondent shall be placed on monitored
    probation for 2 years, subject to the terms set forth above.
    Judgment of suspension.