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

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Nebraska A dvance Sheets
291 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. BOYUM
Cite as 291 Neb. 696
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator, v.
Bradley A. Boyum, respondent.
___ N.W.2d ___
Filed August 28, 2015. No. S-14-578.
Original action. Judgment of suspension.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
Per Curiam.
INTRODUCTION
On February 4, 2015, amended formal charges containing
one count were filed by the office of the Counsel for Discipline
of the Nebraska Supreme Court, relator, against respondent,
Bradley A. Boyum. Respondent filed an answer to the amended
formal charges on February 9. A referee was appointed, and the
referee held a hearing on the charges. Respondent and a client
of respondent appeared at the hearing and testified, and exhib-
its were admitted into evidence.
The referee filed a report on May 13, 2015. With respect
to the amended formal charges, the referee concluded that
respondent’s conduct had violated Neb. Ct. R. of Prof. Cond.
§§ 3-501.3 (diligence), 3-501.4(a)(3) (communications), and
3-508.4 (misconduct). The referee further found that respond­
ent 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 a 60-day suspension, and
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STATE EX REL. COUNSEL FOR DIS. v. BOYUM
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as a condition of reinstatement, that respondent complete 6
hours of legal education in the area of professional responsi-
bility, and that upon reinstatement, if accepted, respondent be
placed on monitored probation for a period of 2 years. 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.
We grant the motion for judgment on the pleadings as to the
facts and impose discipline as indicated below.
STATEMENT OF FACTS
Respondent was admitted to the practice of law in the State
of Nebraska on September 21, 2004. At all times relevant to
these proceedings, he was engaged in the practice of law in
Omaha, Nebraska.
On June 30, 2014, relator filed formal charges against
respondent, and on February 4, 2015, relator filed amended for-
mal charges against respondent. The amended formal charges
contained one count generally regarding respondent’s failure to
communicate with a client and respondent’s failure to perform
the legal work for the client for which respondent had been
paid. The formal charges alleged that by his conduct, respond­
ent violated his oath of office as an attorney and §§ 3-501.3,
3-501.4(a)(3) and (4), and 3-508.4(a) and (d). On February
9, 2015, respondent filed his answer to the amended formal
charges, generally denying the allegations set forth in the
amended formal charges.
A referee was appointed on October 24, 2014, and the referee
held a hearing on the amended formal charges. Respondent and
the client testified at the hearing, and exhibits were admitted
into evidence.
After the hearing, the referee filed his report and recom-
mendation on May 13, 2015. The substance of the referee’s
findings may be summarized as follows: Respondent first met
the client in December 2011, and on February 26, 2012, the
client emailed respondent to schedule a meeting “‘to start our
estate process.’” The initial estate planning meeting occurred
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on March 2 and lasted approximately 1 hour. At the end of
the meeting, respondent gave the client a folder containing an
asset information booklet.
No followup meeting was scheduled. At the hearing, the
client was asked whether he told respondent how quickly he
wanted to proceed, and the client stated, “‘Quite the opposite.
I told him I was not in a hurry.’” Respondent testified that
he believed the client would contact him when the client was
ready to take the next step. There were no additional contacts
between respondent and the client in 2012.
On January 16, 2013, the client called respondent to discuss
an unrelated matter, and at that time, respondent brought up the
topic of estate planning. Respondent’s notes from the January
16 telephone call stated that “‘[the client] is still working on
the asset booklet but they are planning on doing the Living
Trust packet.’” Respondent’s notes further stated that respond­
ent “‘[d]id [an] estate plan draft,’” and respondent testified at
the hearing that that meant he had “‘entered information into a
drafting program.’”
On January 28, 2013, respondent created a document titled
the client’s “Estate Plan Drafting Notes” (emphasis in orig-
inal), and according to these notes, respondent “‘[d]rafted
Estate Plan for [the client] after our conversation from January
16, 2013 because he said he was going forward with the Living
Trust packet.’” Respondent testified at the hearing that he did
not intend to show the original draft of the estate plan to the
client. Respondent’s notes listed some of the information that
respondent still needed to gather in order to complete the estate
plan for the client.
Respondent took no steps between January 28 and June 17,
2013, to gather the missing information for the estate plan.
Respondent testified at the hearing that he took no action at
this time, because the client “‘wanted to control the speed
of the process, the estate planning process.’” The client tes-
tified at the hearing that he did not remember whether he
wanted to move forward with the estate planning process in
January 2013.
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STATE EX REL. COUNSEL FOR DIS. v. BOYUM
Cite as 291 Neb. 696
The client initiated a meeting with respondent for estate
planning purposes, and that meeting was held on June 17,
2013. At that meeting, the client formally told respondent that
he wanted to go forward with the estate planning process. The
client paid respondent a retainer of $1,700, and the client signed
a legal services agreement. The legal services agreement pro-
vided that respondent “‘will prepare the following estate plan-
ning documents for client: [six documents are identified],’”
and it further provided that the client agreed that “‘Attorney’s
Fees shall be paid as follows: Initial Retainer of $1700.’” The
legal services agreement set forth the client’s responsibilities,
including: “‘Before Law Firm has an obligation to perform any
serv­ices for Client, Client must sign this agreement and make
the payment required in paragraph 3 above.’” The client and
his wife both signed the contract. The legal services agreement
did not explicitly set forth other details of how and when the
work was to be performed.
Respondent contended that at the conclusion of the June
17, 2013, meeting, he did not have all of the information he
needed to complete the work identified in the legal services
agreement. The referee noted in his report that at the hearing,
respondent “was unable to describe what additional informa-
tion he needed” and that respondent “became clearly evasive
about what information he may have needed to complete work
on the estate plan.” Respondent did not inform the client that
respondent might need additional information from the client
and that respondent might be contacting the client to obtain
additional information.
At the end of the June 17, 2013, meeting, the client’s under-
standing was that he would receive a draft of the estate plan
from respondent and that he would be able to review the draft
before the plan was finalized. The client was unaware that
respondent did not intend to send a draft of the estate plan to
the client. The referee stated in his report that he found that the
client had “expressed desire to receive a draft to review at the
June 17, 2013 meeting.”
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STATE EX REL. COUNSEL FOR DIS. v. BOYUM
Cite as 291 Neb. 696
The referee stated in his report that the schedule to com-
plete the estate planning work was left open. The referee
further stated that respondent asserted that the arrangement
was for the client to contact respondent when he needed some
work completed. Conversely, the client expected respondent
to call him sometime after the meeting on June 17, 2013,
to inform the client when the documents were ready to
be reviewed.
On August 19, 2013, the client called respondent and left a
message. Respondent returned the call and left a message. On
September 9, the client called respondent “‘to get this estate
process going.’” Respondent did not answer, and the client left
a message. Late on September 9, respondent sent the client an
e-mail stating, “‘I saw I missed your call. I will call you in
the morning.’” Respondent called the client at 6:22 p.m. on
September 10. The client answered the call, but he indicated
that it was not a convenient time to talk. The client stated that
he would call respondent back, but he did not.
Beginning on January 21, 2014, the client attempted
numerous times to contact respondent to let respondent know
he was ready and wanting to move forward. The client
attempted to contact respondent via: a call on January 21,
a call on January 27, two calls on February 4, an e-mail
on February 4, two calls on February 6, a call on February
18, a call on February 20, and three calls on February 25.
Respondent did not respond to any of the client’s attempts to
contact him.
On February 25, 2014, the client called relator because he
was upset that he could not reach respondent. The client wrote
a grievance letter, which relator received on February 27. On
March 4, relator sent respondent a letter with a copy of the
grievance. The March 4 letter was mailed certified, return
receipt, and addressed to respondent’s correct office address.
The referee noted in his report that return receipt has never
been returned, and the letter itself has never been returned.
Respondent testified at the hearing that he did not receive the
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STATE EX REL. COUNSEL FOR DIS. v. BOYUM
Cite as 291 Neb. 696
March 4 letter. An exhibit received at the hearing showed a
copy of a U.S. Postal Service tracking screen which showed
that the March 4 letter was delivered on March 5 to area code
68154, although not the specific address or addresses.
On April 2, 2014, the client was in respondent’s office build-
ing on an unrelated matter, and the client asked respondent
to meet with him. Respondent met the client, and the client
indicated that “it was time for them to part” and asked for his
money back. Respondent immediately wrote the client a check
for the entire $1,700 retainer.
With respect to relator’s efforts to reach respondent, on
April 15, 2014, relator sent a followup letter by regular mail
to respondent’s correct address. The letter was never returned
to relator. Respondent testified that he did not receive the April
15 letter.
Relator sent respondent a third letter to respondent’s cor-
rect address on May 8, 2014, and respondent acknowledged
receiving this letter. Respondent e-mailed a response to rela-
tor on May 19. Thereafter, relator filed a complaint with the
appropriate Committee on Inquiry and subsequently filed for-
mal charges against respondent as described above.
The referee stated in his report that two additional griev-
ance letters were submitted against respondent. With respect
to the second grievance letter, two of respondent’s clients
asserted that respondent failed to communicate with them
and failed to return their estate planning documents. The
referee noted that respondent apparently did not respond
promptly to relator regarding the second grievance; however,
respondent eventually sent a letter to relator regarding the
grievance in which he denied receiving some of the calls
claimed to have been made by the clients and stated that
“‘[t]he fact of the matter is that I handled the matter poorly.
It is my fault for not being proactive in my attempt to contact
them as time passed.’” The second grievance did not result
in the filing of a complaint or the filing of formal charges
against respondent.
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STATE EX REL. COUNSEL FOR DIS. v. BOYUM
Cite as 291 Neb. 696
With respect to the third grievance submitted against
respond­ent, two of respondent’s clients asserted that respond­
ent failed to complete work for which the clients had paid.
Relator sent five letters to respondent regarding the third
grievance between August and December 2013, and respond­
ent did not respond to any of relator’s five letters. Relator
called respondent on December 12, and on December 13,
respond­ent mailed a written response to relator regarding the
third grievance. Relator subsequently filed a complaint, and
on February 20, 2014, the Committee on Inquiry issued a pri-
vate reprimand to respondent. The referee noted in his report
that the allegations supporting the private reprimand were that
respondent violated §§ 3-501.3, 3-501.4(a)(3) and (4), and
3-508.4(a) and (d).
In his report, the referee determined with respect to the
allegations set forth in the amended formal charges, based
on his actions, respondent did not act promptly or diligently,
that respondent did not keep the client reasonably informed
about the status of the matter, and that respondent failed
to cooperate with relator in a timely manner. Accordingly,
the referee found that respondent violated his oath of office
as an attorney and professional conduct rules §§ 3-501.3,
3-501.4(a)(3), and 3-508.4. However, the referee found that
respondent did not violate § 3-501.4(a)(4) of the professional
conduct rules.
The referee identified certain aggravating factors, includ-
ing that two other grievances had been submitted against
respondent that involved similar misconduct. In both situa-
tions, respondent failed to adequately communicate with his
clients as to the status of their matters and respondent failed
to promptly respond to the investigation of relator. The ref-
eree further stated that one of the other grievances resulted in
a private reprimand, and a prior reprimand is considered an
aggravating factor.
The referee also identified certain mitigating factors. The
referee noted that the client involved in the events at issue
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STATE EX REL. COUNSEL FOR DIS. v. BOYUM
Cite as 291 Neb. 696
in this case was a “difficult” client who provided confusing
direction regarding when work was to be done, but the referee
stated “[t]his fact is barely mitigating since the exact same fact
provides notice to [respondent] that extra care was needed to
ensure adequate communication.” The referee acknowledged
that many letters of support were submitted on respondent’s
behalf. However, the referee stated that some of the letters
were “templates which have merely been signed,” and the ref-
eree did not give the form letters any mitigating weight. The
referee further stated that other letters appeared to be sincere,
original compositions and that those letters were entitled to
some mitigating weight. The referee further stated that “[a]s a
matter of proportionality, [respondent’s] failure to respond to
the investigation into his misconduct was a clear violation but
was not profoundly significant. . . . I find that [respondent]
violated the rule but I do not exaggerate the seriousness of this
particular violation.”
With respect to sanctions to be imposed for the foregoing
actions, considering the aggravating and mitigating factors,
the referee recommended that respondent be suspended for
a period of 60 days; that reinstatement be conditioned on
respond­ent’s proof that respondent completed 6 hours of con-
tinuing legal education prior to reinstatement; and that upon
reinstatement, respondent be placed on monitored probation for
a period of 2 years.
ANALYSIS
In view of the fact that neither party filed written excep-
tions to the referee’s report, relator filed a motion for judg-
ment on the pleadings under § 3-310(L). When no excep-
tions to the referee’s findings of fact are filed, the Nebraska
Supreme Court may consider the referee’s findings final and
conclusive. State ex rel. Counsel for Dis. v. Council, 289 Neb.
33, 853 N.W.2d 844 (2014). Based upon the findings in the
referee’s report, which we consider to be final and conclusive,
we conclude that the amended formal charges are supported
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STATE EX REL. COUNSEL FOR DIS. v. BOYUM
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by clear and convincing evidence, and the motion for judg-
ment on the pleadings as to the facts is granted.
A proceeding to discipline an attorney is a trial de novo
on the record. State ex rel. Counsel for Dis. v. Thebarge,
289 Neb. 356, 854 N.W.2d 914 (2014). 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. State ex
rel. Counsel for Dis. v. Sundvold, 287 Neb. 818, 844 N.W.2d
771 (2014).
Based on the record and the undisputed findings of the
referee, we find that the above-referenced 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 3-508.4 of the professional conduct rules. The record
also supports a finding by clear and convincing evidence that
respondent violated his oath of office as an attorney, and we
find that respondent has violated said oath.
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 cir-
cumstances. See State ex rel. Counsel for Dis. v. Council,
supra. Neb. Ct. R. § 3-304 of the disciplinary rules provides
that the following may be considered as discipline for attor-
ney misconduct:
(A) Misconduct shall be grounds for:
(1) Disbarment by the Court; or
(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 desig-
nate; 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.
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(B) The Court may, in its discretion, impose one or
more of the disciplinary sanctions set forth above.
See, also, § 3-310(N).
With respect to the imposition of attorney discipline in an
individual case, each attorney discipline case must be evalu-
ated in light of its particular facts and circumstances. State
ex rel. Counsel for Dis. v. Council, supra. For purposes of
determining the proper discipline of an attorney, we consider
the attorney’s actions both underlying the events of the case
and throughout the proceeding, as well as any aggravating or
mitigating factors. Id.
To determine whether and to what extent discipline should
be imposed in an attorney 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 respondent generally, and (6) the respondent’s
present or future fitness to continue in the practice of law. State
ex rel. Counsel for Dis. v. Connor, 289 Neb. 660, 856 N.W.2d
570 (2014).
The evidence in the present case establishes, among other
facts, that respondent agreed to prepare estate planning docu-
ments for the client and was paid a retainer to complete
such work. However, respondent failed to prepare the docu-
ments and failed to effectively communicate with the client
regarding the status of the work to be completed. In addi-
tion, respondent repeatedly failed to cooperate with rela-
tor’s investigation.
As aggravating factors, we note, as did the referee, that
two other grievances had been submitted against respondent
for similar misconduct and that in those situations, respondent
similarly failed to cooperate with relator’s investigation in a
timely manner. Further, the record shows that respondent has
received a private reprimand.
As mitigating factors, we acknowledge, as did the referee,
that the client involved with the events at issue in this case was
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STATE EX REL. COUNSEL FOR DIS. v. BOYUM
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a “difficult” client. We also recognize that several letters of
support were written on respondent’s behalf.
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
respondent should be suspended for a period of 60 days.
Before the filing of an application for reinstatement, respond­
ent must complete 6 hours of legal education in the area
of professional responsibility. Should respondent apply for
reinstatement, his reinstatement shall be conditioned upon
the application’s being accompanied by a proposed monitored
plan and further conditioned on respondent’s being placed on
monitored probation for a period of 2 years, and the monitor-
ing shall be by an attorney licensed to practice law in the
State of Nebraska, who shall be approved by the Counsel for
Discipline. Respondent shall submit a monitoring plan with
this application for reinstatement which shall include, but not
be limited to, the following: During the first 6 months of the
probation, respondent will meet with and provide the moni-
tor a weekly list of cases for which respondent is currently
responsible, which list shall include the date the attorney-
client relationship began; the general type of case; the date
of last contact with the client; the last type and date of work
completed on the file (pleading, correspondence, document
preparation, discovery, or court hearing); the next type of
work and date that work should be completed on the case;
any applicable statutes of limitations and their dates; and the
financial terms of the relationship (hourly, contingency, et
cetera). After the first 6 months through the end of probation,
respondent shall meet with the monitor on a monthly basis and
provide the monitor with a list containing the same informa-
tion as set forth above; respondent shall reconcile his trust
account within 10 days of receipt of the monthly bank state-
ment and provide the monitor with a copy within 5 days; and
respondent shall submit a quarterly compliance report with
the Counsel for Discipline, demonstrating that respondent is
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adhering to the foregoing terms of probation. The quarterly
report shall include a certification by the monitor that the
monitor has reviewed the report and that respondent continues
to abide by the terms of the probation.
CONCLUSION
The motion for judgment on the pleadings is granted as
to the facts. With respect to discipline, it is the judgment of
this court that respondent should be and is hereby suspended
from the practice of law for a period of 60 days, effective
immediately, after which period respondent may apply for
reinstatement to the bar. Before the filing of an application
for reinstatement, respondent must complete 6 hours of legal
education in the area of professional responsibility. Should
respondent apply for reinstatement, his reinstatement shall
be conditioned upon respondent’s being on probation for a
period of 2 years, including monitoring, following reinstate-
ment, subject to the terms outlined above, and acceptance of
an application for reinstatement is conditioned on the appli-
cation’s being accompanied by a proposed monitored proba-
tion plan the terms of which are consistent with this opinion.
Respondent shall comply with Neb. Ct. R. § 3-316 (rev. 2014),
and upon failure to do so, respondent shall be subject to pun-
ishment 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 § 3-310(P) and Neb.
Ct. R. § 3-323(B) of the disciplinary rules within 60 days after
an order imposing costs and expenses, if any, is entered by
the court.
Judgment of suspension.