State ex rel. Counsel for Dis. v. Walz ( 2015 )


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  •                                      - 566 -
    Nebraska A dvance Sheets
    291 Nebraska R eports
    STATE EX REL. COUNSEL FOR DIS. v. WALZ
    Cite as 
    291 Neb. 566
    State   of   Nebraska ex rel. Counsel for Discipline
    of the    Nebraska Supreme Court, relator, v.
    K ristin R enee Walz, respondent.
    ___ N.W.2d ___
    Filed August 14, 2015.   No. S-12-275.
    1.	 Disciplinary Proceedings: Appeal and Error. In attorney discipline
    and admission cases, the Nebraska Supreme Court reviews recommen-
    dations 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.	 ____. Under Neb. Ct. R. § 3-304, the Nebraska Supreme Court may
    impose one or more of the following disciplinary sanctions: (1) disbar-
    ment; (2) suspension; (3) probation in lieu of or subsequent to suspen-
    sion, on such terms as the court may designate; (4) censure and repri-
    mand; or (5) temporary suspension.
    4.	 ____. 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 and reputation of the
    bar as a whole, (4) the protection of the public, (5) the attitude of the
    respondent generally, and (6) the respondent’s present or future fitness
    to continue in the practice of law.
    5.	 ____. When determining appropriate discipline, the Nebraska Supreme
    Court considers aggravating and mitigating factors.
    6.	 ____. The propriety of a sanction in an attorney discipline case must
    be considered with reference to the sanctions imposed in prior simi-
    lar cases.
    Original action. Judgment of disbarment.
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    STATE EX REL. COUNSEL FOR DIS. v. WALZ
    Cite as 
    291 Neb. 566
    John W. Steele and Kent L. Frobish, Assistant Counsels for
    Discipline, for relator.
    John D. Rouse for respondent.
    Heavican, C.J., Wright, Connolly, Stephan, McCormack,
    Miller-Lerman, and Cassel, JJ.
    Per Curiam.
    INTRODUCTION
    The issue in this attorney discipline proceeding is what dis-
    cipline should be imposed on Kristin Renee Walz (Respondent)
    for violating certain provisions of the Nebraska Rules of
    Professional Conduct.
    Respondent pled no contest and was convicted of a felony.
    Respondent admits that she was convicted of making terror-
    istic threats, a Class IV felony, pursuant to Neb. Rev. Stat.
    § 28-311.01 (Reissue 2008). The referee recommended dis-
    barment, and after our review, we conclude that disbarment is
    the proper sanction.
    BACKGROUND
    On September 3, 2010, Respondent was admitted to the
    practice of law in the State of Nebraska. At the time of the
    events set forth herein, Respondent was engaged in the private
    practice of law in Lancaster County, Nebraska.
    Respondent was initially charged with second degree domes-
    tic assault and use of a weapon to commit a felony. She was
    accused of assaulting her husband with a knife. The State later
    amended the charges to first degree assault and use of a deadly
    weapon to commit a felony. Respondent has consistently
    denied causing her husband’s injuries and has maintained that
    she was asleep when the injuries occurred.
    At some point, Respondent’s husband admitted to police
    that Respondent had cut him with a knife. He later recanted
    and explained his statement was made while he was sleep
    deprived, under the influence of drugs, and under pressure by
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    STATE EX REL. COUNSEL FOR DIS. v. WALZ
    Cite as 
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    the police. He also stated that he made the statement to hide
    the fact that he had acquired drugs illegally and was under the
    belief that he could simply refuse to press charges. He stated
    that he was eating cake in bed and was under the influence of
    pain medication. He claimed he fell asleep, rolled over on the
    knife, and was injured as a result.
    Pursuant to a plea agreement, Respondent pled no contest to
    one count of making terroristic threats. She was convicted on
    March 9, 2012, and was sentenced to 1 to 3 years’ imprison-
    ment with credit for 55 days served. She began her sentence
    July 3 and was released on parole in December. Her parole
    ended in July 2013.
    On April 4, 2012, the Committee on Inquiry of the First
    Judicial District filed an application with this court for tem-
    porary suspension of Respondent’s license to practice law. We
    entered an order suspending Respondent until further order of
    the court. Respondent remains under suspension pursuant to
    that order.
    On October 31, 2012, formal charges were filed against
    Respondent based upon her felony conviction for making
    terroristic threats. The charges alleged that Respondent had
    violated the Nebraska Rules of Professional Conduct by com-
    mitting a criminal act.
    Respondent’s answer to the formal charges denied she had
    violated her oath of office as an attorney or Neb. Ct. R. of Prof.
    Cond. § 3-508.4(a) and (b). A referee was appointed in January
    2013, but due to a joint request to stay the proceedings while
    Respondent’s criminal appeal and postconviction relief were
    pending, the case did not resume until 2014.
    On April 30, 2014, a hearing on the formal charges was
    commenced. Respondent, her husband, and her treating clini-
    cal psychologist, Dr. Caryll Palmer Wilson, testified.
    We granted the parties’ joint motion to continue the report
    of the referee pending final resolution of Respondent’s crimi-
    nal charges and a motion to withdraw her plea. Respondent’s
    motion to withdraw her no contest plea was subsequently
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    STATE EX REL. COUNSEL FOR DIS. v. WALZ
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    overruled. The court also found that postconviction relief was
    no longer available, because Respondent was no longer in cus-
    tody and there was no allegation that she was on parole.
    On August 18, 2014, the referee filed a report, finding
    that Respondent’s conviction of a felony was a violation of
    her oath of office as an attorney and, specifically, a viola-
    tion of § 3-508.4(a) and (b). The referee recommended that
    Respondent be disbarred.
    In mitigation, Respondent asserted that she did not com-
    mit an act that harmed the public or her clients, she did not
    commit an act of dishonesty, she did not show herself to be
    untrustworthy, and she had diligently and capably represented
    her clients and their interests. She argued that she should be
    allowed to practice law in the future because the felony con-
    viction did not render her unfit to practice law.
    ASSIGNMENT OF ERROR
    Neither party has taken exception to the report or factual
    findings of the referee. Therefore, the only issue is the appro-
    priate sanction under the circumstances. Respondent opposes
    the referee’s recommendation and the Counsel for Discipline’s
    request for disbarment.
    STANDARD OF REVIEW
    [1,2] In attorney discipline and admission cases, we review
    recommendations de novo on the record, reaching a conclu-
    sion independent of the referee’s findings.1 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.2
    1
    State ex rel. Counsel for Dis. v. Smith, 
    287 Neb. 755
    , 
    844 N.W.2d 318
          (2014).
    2
    State ex rel. Counsel for Dis. v. Cording, 
    285 Neb. 146
    , 
    825 N.W.2d 792
          (2013).
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    STATE EX REL. COUNSEL FOR DIS. v. WALZ
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    291 Neb. 566
    ANALYSIS
    [3] Under Neb. Ct. R. § 3-304, this court may impose
    one or more of the following disciplinary sanctions: “(1)
    Disbarment by the Court; or (2) Suspension by the Court; or
    (3) Probation by the Court in lieu of or subsequent to suspen-
    sion, on such terms as the Court may designate; or (4) Censure
    and reprimand by the Court; or (5) Temporary suspension by
    the Court.”
    Section 3-508.4 provides that it is professional misconduct
    for a lawyer to do either of the following: “(a) violate or
    attempt to violate the Rules of Professional Conduct[,] know-
    ingly assist or induce another to do so[,] or do so through the
    acts of another [or] (b) commit a criminal act that reflects
    adversely on the lawyer’s honesty, trustworthiness[,] or fitness
    as a lawyer in other respects.”
    Respondent strenuously denied committing the crime of
    making terroristic threats, and her husband, the purported
    victim of the crime, also insisted that she did not com-
    mit a crime against him. He retracted all statements he had
    previously made to police and claimed that he originally
    made the statements while under the influence of drugs and
    sleep deprivation.
    Respondent stated she took a plea deal because she feared
    a prolonged trial and a conviction of a far more serious crime
    that could result in years of incarceration. She wanted to
    avoid a lengthy trial because she had a 17-year-old daughter
    and a seriously ill husband who relied on her for support, and
    she wanted to avoid the bad publicity a trial would generate
    because she is an attorney. She claimed to have exculpatory
    evidence and intended to continue her pursuit to exonerate
    herself of the crime.
    It is not uncommon for one who accepts a plea bargain to
    make similar claims after the fact. However, it is not our task
    in this case to determine the innocence or guilt of Respondent,
    but only the appropriate discipline to be imposed for the
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    STATE EX REL. COUNSEL FOR DIS. v. WALZ
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    conviction. We are instructed by Neb. Ct. R. § 3-326(A),
    which states:
    For the purposes of Inquiry of a Complaint or Formal
    Charges filed as a result of a finding of guilt of a crime,
    a certified copy of a judgment of conviction consti-
    tutes conclusive evidence that the attorney committed the
    crime, and the sole issue in any such Inquiry should be
    the nature and extent of the discipline to be imposed.
    The certified copy of Respondent’s judgment of convic-
    tion is conclusive evidence that she was convicted of mak-
    ing terroristic threats, in violation of § 28-311.01. Unless
    the conviction is vacated, Respondent remains a convicted
    felon. Therefore, the only issue before us is the discipline to
    be imposed.
    [4] 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 and
    reputation of the bar as a whole, (4) the protection of the
    public, (5) the attitude of the respondent generally, and (6)
    the respond­ent’s present or future fitness to continue in the
    practice of law.3
    Each attorney discipline case must be evaluated individ­
    ually in light of its particular facts and circumstances.4 The
    propriety of a sanction must be considered with reference to
    the sanctions imposed in prior similar cases.5
    Nature of Offense and Deterrence
    Offenses involving violence, dishonesty, breach of trust, or
    serious interference with the administration of justice require
    3
    State ex rel. Counsel for Dis. v. Barnes, 
    275 Neb. 914
    , 
    750 N.W.2d 668
          (2008).
    4
    State ex rel. Counsel for Dis. v. Pivovar, 
    288 Neb. 186
    , 
    846 N.W.2d 655
          (2014).
    5
    State ex rel. Counsel for Dis. v. Beltzer, 
    284 Neb. 28
    , 
    815 N.W.2d 862
          (2012).
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    STATE EX REL. COUNSEL FOR DIS. v. WALZ
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    discipline.6 Respondent was not convicted of a crime that
    involved actual physical violence—such as assault, domestic
    assault, or battery—but, rather, a crime of threatening to com-
    mit such violence.7
    The referee found that the certified copy of Respondent’s
    judgment of conviction was conclusive evidence that she had
    been convicted of a felony crime of violence. The evidence was
    clear and convincing that Respondent violated § 3-508.4(b)
    by committing a criminal act that reflects adversely on the
    lawyer’s honesty, trustworthiness, or fitness as a lawyer in
    other aspects.
    R eputation of Bar
    This is our first case involving an attorney’s conviction for
    a crime of violence, and the sanction must be tailored to main-
    tain public confidence in the bar community.
    Protection of Public
    Respondent’s psychologist, Wilson, testified that there was
    no evidence that Respondent has violent or aggressive tend­
    encies. However, protection of the public is not merely con-
    cern for a physical danger to the public. The goal of attorney
    discipline proceedings is not as much punishment as determi-
    nation of whether it is in the public interest to allow an attor-
    ney to keep practicing law.8 Therefore, an adequate sanction is
    necessary to maintain public confidence in the bar.
    Attitude of R espondent
    Respondent has remained fully cooperative with the
    Counsel for Discipline. Such cooperation is always credited
    to a respondent when we consider sanctions. However, unlike
    other cases where sanctioned attorneys have acknowledged
    their misconduct and expressed genuine remorse, Respondent
    6
    See § 3-508.4, comment 2.
    7
    See § 28-311.01.
    8
    State ex rel. Counsel for Dis. v. Sundvold, 
    287 Neb. 818
    , 
    844 N.W.2d 771
          (2014).
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    insists on her innocence. She intends to pursue ways to
    exonerate herself. But it is not our task in the instant case
    to review her conviction. Consequently, Respondent has
    not accepted responsibility for her actions. As an attorney,
    Respondent knew or should have known at the time she
    entered a plea of no contest that a felony conviction would
    result in severe sanctions.
    Fitness to Continue
    Practice of Law
    Respondent’s psychologist, Wilson, began seeing Respondent
    for therapy in 2008. Respondent needed assistance with learn-
    ing how to cope with anxiety and other mental health issues.
    Respondent’s IQ falls in the highly superior range. Wilson
    stated that Respondent shows no signs of aggressive or vio-
    lent tendencies, or any signs of marital problems or domes-
    tic violence.
    The referee gave consideration to Wilson’s opinion that
    Respondent showed no aggressive tendencies in her clini-
    cal observations. Wilson testified that Respondent will need
    counseling to resolve these issues and “get back on her feet.”
    Such counseling is needed before Respondent can manage her
    depression to a point where she would be fit to practice law.
    Wilson stated that given the circumstances, this would take at
    least 12 months. Wilson’s psychotherapy notes indicate that all
    the diagnoses regarding Respondent’s condition are neurologi-
    cally based syndromes and that Respondent has acknowledged
    that she was not fit to practice law. At the time of the referee’s
    report, the evidence indicated that Respondent was not fit to
    practice law.
    Mitigating Factors
    [5] When determining appropriate discipline, the Nebraska
    Supreme Court considers aggravating and mitigating factors.9
    We note that there are some mitigating factors. The referee
    9
    State ex rel. Counsel for Dis. v. Palik, 
    284 Neb. 353
    , 
    820 N.W.2d 862
          (2012).
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    STATE EX REL. COUNSEL FOR DIS. v. WALZ
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    found that Respondent has been fully cooperative with the
    Counsel for Discipline.
    The referee also noted several letters and affidavits from
    attorneys and former clients in support of Respondent, includ-
    ing evidence of pro bono legal work that she did before being
    suspended. The referee stated that Respondent has exhibited
    extraordinary compassion and dedication in representing indi-
    gent persons and persons of limited means.
    Prior to her conviction and suspension, Respondent was
    in good standing and had no prior complaints, misconduct,
    or criminal history. However, in contrast to prior discipline
    cases in which an attorney’s conduct was shown to be an iso-
    lated incident in a lengthy and otherwise unblemished career,
    Respondent was in practice approximately 6 months before
    the misconduct occurred. She was admitted to practice on
    September 3, 2010, and the misconduct which resulted in her
    conviction occurred on February 12, 2011.
    Prior Cases
    [6] The propriety of a sanction must be considered with
    reference to the sanctions imposed in prior similar cases.10
    There are few Nebraska cases of attorney discipline involv-
    ing felony convictions, and none which involves a crime of
    violence. Some of our past attorney discipline cases have
    involved drug offenses,11 fraudulent activity,12 theft from
    clients,13 conspiracy or aiding and abetting in a felony,14 and
    10
    State ex rel. Counsel for Dis. v. Connor, 
    289 Neb. 660
    , 
    856 N.W.2d 570
          (2014).
    11
    State ex rel. Counsel for Dis. v. Hubbard, 
    276 Neb. 741
    , 
    757 N.W.2d 375
    (2008); State ex rel. NSBA v. Brown, 
    251 Neb. 815
    , 
    560 N.W.2d 123
          (1997).
    12
    State ex rel. Counsel for Dis. v. Council, 
    289 Neb. 33
    , 
    853 N.W.2d 844
          (2014).
    13
    State ex rel. Counsel for Dis. v. Tarvin, 
    279 Neb. 399
    , 
    777 N.W.2d 841
          (2010).
    14
    State ex rel. Counsel for Dis. v. Wintroub, 
    277 Neb. 787
    , 
    765 N.W.2d 482
          (2009).
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    sexual ­offenses.15 Although we have not stated a “bright line
    rule,” our case law involving discipline for felony convictions
    indicates that such a conviction reflects adversely upon a law-
    yer’s fitness to practice law and that disbarment is considered
    to be the appropriate sanction.
    Respondent cites to the sanction we imposed in State ex
    rel. Counsel for Dis. v. Mills,16 where we allowed an attorney,
    Stuart B. Mills, to be reinstated after serving a 2-year suspen-
    sion for falsely notarizing documents and assisting a client in
    filing false tax returns based upon those documents. While on
    suspension, Mills was convicted in federal court of a felony
    involving the same false documents. We later reinstated Mills,
    despite the felony, because we had already sanctioned him
    for the conduct notwithstanding the felony conviction and,
    also, in light of the mitigating factors present in that case.
    We noted:
    It is clear from the record that Mills’ behavior sur-
    rounding his handling of the [case] was an isolated
    incident in what has otherwise been an exemplary legal
    career. The record indicates that Mills is involved in his
    community and has countless letters of support from
    judges, lawyers, and laypersons. In addition, Mills has
    never been disciplined in the 30 years he has been autho-
    rized to practice law in Nebraska.
    . . . Furthermore, Mills has admitted his wrongdoing
    and has admitted that he engaged in conduct which vio-
    lates the Code of Professional Responsibility.17
    Unlike the attorney in Mills, Respondent had not received a
    sanction for the conduct leading to her conviction. Nor does
    15
    State ex rel. Counsel for Dis. v. Lauby, 
    270 Neb. 405
    , 
    703 N.W.2d 132
          (2005) (child sexual assault); State ex rel. NSBA v. Mellor, 
    252 Neb. 710
    ,
    
    565 N.W.2d 727
    (1997) (child pornography).
    16
    State ex rel. Counsel for Dis. v. Mills, 
    267 Neb. 57
    , 
    671 N.W.2d 765
          (2003).
    17
    
    Id. at 71,
    671 N.W.2d at 776.
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    STATE EX REL. COUNSEL FOR DIS. v. WALZ
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    the instant case involve the mitigating circumstances we found
    in Mills.
    Sanction
    Because this is the first attorney discipline case in Nebraska
    involving a felony conviction for a crime of violence, it is nec-
    essary to convey the serious consequences that attach to such
    misconduct. Although no clients were harmed by Respondent’s
    misconduct, an attorney’s conviction of a felony for a crime of
    violence requires a severe sanction.
    It is clear that the stress caused by the inability to practice
    law has produced much anxiety for Respondent. However, this
    does not excuse the seriousness of her misconduct. Although
    Respondent may not be a danger to others, her felony convic-
    tion for a crime of violence damages the reputation of the bar
    and threatens public confidence in the profession. There is a
    need for sanctions to deter crimes of violence by members of
    the bar.
    CONCLUSION
    It is the judgment of this court that Respondent should be
    and hereby is disbarred from the practice of law in Nebraska,
    effective immediately. Respondent shall comply with Neb. Ct.
    R. § 3-316 (rev. 2014), and upon failure to do so, she shall be
    subject to punishment for contempt of this court. Respondent
    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 discipli­
    nary rules within 60 days after the order imposing costs and
    expenses, if any, is entered by the court.
    Judgment of disbarment.