State ex rel. Counsel for Dis. v. Halstead , 298 Neb. 149 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. HALSTEAD
Cite as 298 Neb. 149
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator, v.
Rodney A. H alstead, respondent.
___ N.W.2d ___
Filed November 3, 2017. No. S-16-774.
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. 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.
3. ____. The propriety of a sanction must be considered with reference to
the sanctions imposed in prior similar cases.
4. ____. Cumulative acts of attorney misconduct are distinguishable from
isolated incidents, therefore justifying more serious sanctions.
Original action. Judgment of suspension.
Julie L. Agena, Assistant Counsel for Discipline, for
relator.
Thomas J. Anderson, P.C., L.L.O., for respondent.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
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STATE EX REL. COUNSEL FOR DIS. v. HALSTEAD
Cite as 298 Neb. 149
Per Curiam.
INTRODUCTION
This is an attorney discipline case in which the only ques-
tion before this court is the appropriate sanction. Rodney A.
Halstead admitted to authoring and filing annual guardianship
reports containing false statements over a period of 6 years.
The referee recommended that Halstead be suspended from
the practice of law for 1 year with other conditions set forth in
more detail below. Because this is a serious offense which was
repeated year after year, we adopt the referee’s recommenda-
tion and enter a judgment of suspension.
BACKGROUND
Halstead was admitted to the practice of law in the State of
Nebraska on September 25, 1991. At all relevant times, he was
engaged in the practice of law in Omaha, Nebraska.
Grounds for Attorney Discipline
In August 2009, Halstead was appointed permanent guardian
of an incapacitated adult (the ward). He was required to file
annual reports on the condition of the ward and, among other
items, list the ward’s current address and indicate how many
times and on what dates he saw the ward in the past year.1
Halstead filed these mandatory reports with the county court
for 6 consecutive years, 2010 through 2015.
However, each report contained information which Halstead
knew to be false. In annual reports filed in 2010 and 2011,
Halstead handwrote virtually identical responses: “I have seen
[the ward] about once a month [and] check via phone more
often.” Then, in 2012, his typical response changed and he
handwrote, “I have been kept updated mostly by telephone.”
Halstead handwrote this same response in his 2013 and 2014
report. Finally, in his 2015 report, Halstead replied in short-
hand and handwrote, “updated by telephone.” In fact, Halstead
had not visited the ward or spoken to anyone at the ward’s
1
See Neb. Rev. Stat. § 30-2628(a)(6) (Reissue 2016).
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STATE EX REL. COUNSEL FOR DIS. v. HALSTEAD
Cite as 298 Neb. 149
assisted living facility since 2009. If he had, he would have
learned that the ward had moved out of the assisted living
facility in 2011. Halstead learned of the ward’s actual where-
abouts only after a court-appointed visitor found the ward at
another address and reported Halstead’s neglect to the court.
Formal Charges
On August 15, 2016, Counsel for Discipline of the Nebraska
Supreme Court filed formal charges against Halstead, alleg-
ing that he violated his oath of office as an attorney and Neb.
Ct. R. of Prof. Cond. §§ 3-501.1, 3-501.3, 3-501.4(a)(2),
3-503.3(a)(1) and (a)(3), and 3-508.4(a) and (c). Halstead
admitted to these allegations in his answer, and we sustained
Counsel for Discipline’s motion for judgment on the pleadings
limited to the facts. We then appointed a referee for the taking
of evidence limited to the appropriate discipline.
R eferee’s R eport
After an evidentiary hearing, the referee reported his find-
ings of fact and recommendations for the appropriate sanction.
The report indicated that Halstead understood the seriousness
of his misconduct. Specifically, it stated that Halstead was
“direct and not evasive,” that he “appeared genuinely uncom-
fortable and remorseful,” and that it “appeared that his guilt
and regret were sincere.” It further stated that Halstead admit-
ted to authoring and filing false reports year after year, but
that he denied deliberately trying to mislead the court. Instead,
Halstead maintained, “I believed that I was reporting his cur-
rent condition as I knew it at the time.” The referee concluded
that Halstead was not deliberately misleading the court for the
purpose of covering up anything, but noted, “[H]is very lack
of purpose is what is most troubling about the repeated neglect
and the repeated false filings.”
The referee found that Halstead’s repeated violation of
the Rules of Professional Conduct in the same way over an
extended period of time was a strongly aggravating factor.
This factor was made worse by the mandatory annual report-
ing requirements.
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STATE EX REL. COUNSEL FOR DIS. v. HALSTEAD
Cite as 298 Neb. 149
The referee also identified certain mitigating factors. Such
factors included the fact that Halstead was fully cooperative
with Counsel for Discipline, that Halstead had no prior disci-
plinary issues, that Halstead’s actions did not result in harm to
the ward, that Halstead had an extensive community service
record, and that Halstead understood the gravity of his offense
and was sincerely remorseful. Halstead offered 22 letters in
support from other attorneys in the community. However, the
referee gave no weight to these letters, because none of the
writers were aware of the actual charges against Halstead or
otherwise explained what may have been the cause of the
neglect or the false reporting.
With respect to the sanctions to be imposed, and giv-
ing weight to these aggravating and mitigating factors, the
referee recommended that Halstead be suspended from the
practice of law for 1 year. He also recommended that prior to
readmission, Halstead be required to satisfactorily complete
continuing legal education credits in legal ethics and office
management. Finally, the referee recommended a period of
supervision upon Halstead’s readmission and a prohibition on
accepting guardianship or conservatorship appointments for a
period of time.
ASSIGNMENT OF ERROR
Halstead takes exception to the referee’s recommended sanc-
tion but does not challenge the truth of the referee’s findings.
Therefore, the only question before this court is the appropri-
ate discipline.
STANDARD OF REVIEW
[1] 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.2
2
State ex rel. Counsel for Dis. v. Gast, 296 Neb. 687, 896 N.W.2d 583
(2017).
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STATE EX REL. COUNSEL FOR DIS. v. HALSTEAD
Cite as 298 Neb. 149
ANALYSIS
[2] 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.3 The first four factors call for
a serious sanction in response to Halstead’s actions and inac-
tions, and they are important considerations in assessing the
last two factors.
Halstead violated several disciplinary rules, including a rule
which describes the special duties of attorneys in their role as
officers of the court to protect the integrity of the adjudicative
process.4 This rule sets forth a duty of candor such that “[a]
lawyer shall not knowingly . . . make a false statement of fact
or law to a tribunal or fail to correct a false statement of mate-
rial fact or law previously made to the tribunal by the lawyer.”5
Violation of this rule is a serious offense, and repeated viola-
tion indicates indifference to an attorney’s important legal
obligations and fitness for the practice of law.6
[3] In addition to the above six factors, the propriety of a
sanction must be considered with reference to the sanctions
imposed in prior similar cases.7 The referee relied upon prior
cases in which the attorney misconduct involved filing an affi-
davit in court containing allegations known to be false,8 lying
to a court and to the Department of Veterans Affairs to aid a
3
Id.
4
See § 3-503.3, comment 2.
5
§ 3-503.3(a).
6
See § 3-508.4, comment 2.
7
See State ex rel. Counsel for Dis. v. Gast, supra note 2.
8
See State ex rel. NSBA v. Zakrzewski, 252 Neb. 40, 560 N.W.2d 150
(1997).
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client,9 notarizing and filing documents without being in the
presence of the signer,10 knowingly filing a false easement,11
and neglecting a client’s case and altering a court document.12
The sanctions in those cases all involved periods of suspension
ranging from 1 to 2 years.
[4] Conversely, Halstead argues that cases resulting in pub-
lic reprimand are more appropriate for comparison to his
misconduct. He cites to cases in which the attorney miscon-
duct involved simultaneously representing two clients who
had conflicting and adverse interests in the same or similar
transaction13 and failing to timely manage and resolve probate
matters.14 However, these cases did not involve a violation of
the duty of candor to a tribunal. Furthermore, these cases each
involved isolated incidents of attorney misconduct whereas
Halstead’s misconduct included repeat violations over 6 years.
And cumulative acts of attorney misconduct are distinguish-
able from isolated incidents, therefore justifying more seri-
ous sanctions.15 As a result, we do not agree that these cases
are comparable.
The referee relied on appropriate cases for the purpose of
determining a proportionate sanction for Halstead’s offense.
The serious nature of the offense and the fact that it was
repeated year after year with no explanation suggests that
Halstead is indifferent to the special duties he owes the court
9
See State ex rel. NSBA v. Scott, 252 Neb. 698, 564 N.W.2d 588 (1997).
10
See State ex rel. Counsel for Dis. v. Mills, 267 Neb. 57, 671 N.W.2d 765
(2003).
11
See State ex rel. Counsel for Dis. v. Rokahr, 267 Neb. 436, 675 N.W.2d
117 (2004).
12
See State ex rel. Counsel for Dis. v. Gilner, 280 Neb. 82, 783 N.W.2d 790
(2010).
13
See State ex rel. Counsel for Dis. v. Peppard, 291 Neb. 948, 869 N.W.2d
700 (2015).
14
See State ex rel. Counsel for Dis. v. Connor, 289 Neb. 660, 856 N.W.2d
570 (2014).
15
See id.
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as an officer of the legal system. And neglect of these respon-
sibilities compromises the integrity of the legal profession and
the public interest which it serves.
We recognize that Halstead fully cooperated with the
Counsel for Discipline, had practiced for many years, and had
no previous disciplinary history. And we have considered the
other mitigating factors identified by the referee. But the duty
of candor to the tribunal lies at the heart of an attorney’s role
as an officer of the court. And this was no slip of the tongue.
The falsehoods were made in writing and were repeated from
year to year.
Therefore, upon our de novo review of the record, this court
determines that Halstead should be suspended from the prac-
tice of law and required to comply with the other requirements
set forth below.
CONCLUSION
Halstead’s exception with regard to the recommended sanc-
tion is overruled. Halstead is hereby suspended from the prac-
tice of law for a period of 1 year, effective immediately, and,
before applying for reinstatement, he must complete continu-
ing legal education credits in legal ethics and office manage-
ment. After the period of suspension, Halstead may apply
for reinstatement upon a showing of his fitness to practice
law and compliance with all requirements. Upon reinstate-
ment, Halstead shall be subject to a 1-year probation, during
which time he shall not accept guardianship or conservator-
ship appointments.
Halstead shall 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. Halstead is 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) within 60 days after an order imposing costs and
expenses, if any, is entered by this court.
Judgment of suspension.