State ex rel. Counsel for Dis. v. Nimmer , 300 Neb. 906 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/28/2018 08:13 AM CDT
- 906 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. John C. Nimmer, respondent.
___ N.W.2d ___
Filed August 31, 2018. No. S-17-111.
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. ____: ____. In an attorney discipline proceeding, when a party takes
exception to the referee’s report, the Nebraska Supreme Court conducts
a trial de novo on the record, in which the court reaches a conclusion
independent of the findings of the referee; provided, however, that
where the credible evidence is in conflict on a material issue of fact, the
court considers and may give weight to the fact that the referee heard
and observed the witnesses and accepted one version of the facts rather
than another.
3. Disciplinary Proceedings. Client trust accounts, in particular, are
always open to review by the Counsel for Discipline.
4. Disciplinary Proceedings: Rules of the Supreme Court: Time. An
attorney’s failure to preserve client trust account records does not pro-
vide an affirmative defense to charges of impermissible commingling,
nor does the 5-year preservation rule under Neb. Ct. R. of Prof. Cond.
§ 3-501.15 constrain or limit the Counsel for Discipline’s investigative
or prosecutorial duties.
5. Disciplinary Proceedings: Time. There is no time limitation on the
acts or omissions that can give rise to attorney discipline for violating
the Nebraska Rules of Professional Conduct, the attorney’s oath, or the
provisions of Nebraska’s disciplinary rules.
6. Disciplinary Proceedings: Attorneys at Law. Attorneys licensed to
practice law in the State of Nebraska agree to operate under the supervi-
sion of the office of the Counsel for Discipline.
- 907 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 9067. ____: ____. A license to practice law confers no vested right, but is a
conditional privilege, revocable for cause.
8. ____: ____. Violation of any of the ethical standards relating to the
practice of law or any conduct of an attorney in his or her professional
capacity which tends to bring reproach on the courts or the legal profes-
sion constitutes grounds for suspension or disbarment.
9. Disciplinary Proceedings. Violation of the standards set forth in
the disciplinary rules must be established by clear and convincing
evidence.
10. Disciplinary Proceedings: Rules of the Supreme Court. Collectively,
subsections (a) and (b) of Neb. Ct. R. of Prof. Cond. § 3-501.15 prohibit
the commingling of client funds with an attorney’s personal funds.
11. Disciplinary Proceedings. Generally speaking, an attorney violates the
rule against commingling when the funds of the client are intermingled
with those of the attorney in such a way that their separate identity is
lost and they may be used by the attorney for personal expenses or sub-
jected to the claims of the attorney’s creditors.
12. Disciplinary Proceedings: Proof: Circumstantial Evidence.
Disciplinary violations can be proved by circumstantial evidence.
13. Disciplinary Proceedings: Attorneys at Law. In the context of attor-
ney discipline cases, the Nebraska Supreme Court has repeatedly recog-
nized the ancient maxim that ignorance of the law is no excuse. It is a
maxim sanctioned by centuries of experience and it applies with even
greater emphasis to an attorney at law who is expected to be learned in
the law.
14. Disciplinary Proceedings. Neither good faith nor ignorance of the rules
prohibiting commingling client and personal funds provides a defense
to a disciplinary charge that an attorney violated the rules against
commingling.
15. ____. To determine whether and to what extent discipline should be
imposed in an attorney 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
respondent generally, and (6) the respondent’s present or future fitness
to continue in the practice of law.
16. ____. Each attorney discipline case must be evaluated in light of its
particular facts and circumstances.
17. ____. For purposes of determining the proper discipline of an attor-
ney, the Nebraska Supreme Court considers the attorney’s actions both
underlying the events of the case and throughout the proceeding, as well
as any aggravating or mitigating factors.
- 908 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 90618. ____. In attorney discipline cases, the propriety of a sanction must
be considered with reference to the sanctions imposed in prior simi-
lar cases.
19. Disciplinary Proceedings: Rules of the Supreme Court. Under Neb.
Ct. R. § 3-304, the Nebraska Supreme Court may impose one or more
of the following disciplinary sanctions: (1) disbarment; (2) suspension;
(3) probation, in lieu of or subsequent to suspension; (4) censure and
reprimand; or (5) temporary suspension.
20. Disciplinary Proceedings. The Nebraska Supreme Court considers
commingling of client funds with an attorney’s own funds to be a matter
of gravest concern in reviewing claims of lawyer misconduct.
21. ____. The goal of attorney discipline proceedings is not as much punish-
ment as a determination of whether it is in the public interest to allow an
attorney to keep practicing law.
22. ____. Providing for the protection of the public requires the imposition
of an adequate sanction to maintain public confidence in the bar.
23. ____. An attorney’s admission of responsibility for his or her actions
reflects positively upon his or her attitude and character and is to be
considered in determining the appropriate discipline.
24. ____. Because cumulative acts of attorney misconduct are distin-
guishable from isolated incidents, they justify more serious sanctions.
Cumulative acts of misconduct can, and often do, lead to disbarment.
25. Disciplinary Proceedings: Words and Phrases. In the context of
attorney disciplinary proceedings, misappropriation is any unauthor-
ized use of client funds entrusted to an attorney, including not only
stealing, but also unauthorized temporary use for the attorney’s own
purpose, whether or not the attorney derives any personal gain or ben-
efit therefrom.
26. Disciplinary Proceedings. Lack of financial harm to clients is not a
mitigating factor in disciplinary proceedings where an attorney has com-
mingled client and personal funds.
27. ____. Absent mitigating circumstances, disbarment is the appropriate
discipline in cases of misappropriation or commingling of client funds.
28. Disciplinary Proceedings: Presumptions. Mitigating factors may over-
come the presumption of disbarment in misappropriation and commin-
gling cases where they are extraordinary and substantially outweigh any
aggravating circumstances.
Original action. Judgment of disbarment.
William F. Austin, Special Prosecutor, of Blake & Austin
Law Firm, L.L.P., for relator.
- 909 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906John C. Nimmer, pro se.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Dobrovolny, District Judge.
Per Curiam.
On February 1, 2017, the Counsel for Discipline of the
Nebraska Supreme Court filed formal charges against John
C. Nimmer, alleging he violated Neb. Ct. R. of Prof. Cond.
§§ 3-501.15 and 3-508.4 (rev. 2016) and his oath of office as
an attorney licensed to practice in Nebraska1 by commingling
personal funds with client trust account funds. This court
appointed a referee who held an evidentiary hearing and then
filed a report finding Nimmer had violated the disciplinary
rules by depositing personal funds into his client trust account
and using his client trust account to pay personal expenses. The
referee recommended a 1-year suspension followed by a 2-year
period of probation. Nimmer filed an exception to the referee’s
report, challenging both the finding that he violated the disci-
plinary rules and the recommended sanction.
We find by clear and convincing evidence that Nimmer
commingled client funds with personal funds, in violation of
§§ 3-501.15 and 3-508.4 of the Nebraska Rules of Professional
Conduct and his oath of office. Furthermore, we conclude on
this record that the appropriate sanction for Nimmer’s miscon-
duct is disbarment.
I. BACKGROUND
Nimmer was admitted to the practice of law in the State of
Nebraska in 1993, and since that time has practiced primarily
in Omaha and Bellevue, Nebraska. In 2004, Nimmer opened
a client trust account at an Omaha area bank. The manner in
which Nimmer has used that client trust account is the central
issue in this disciplinary proceeding.
1
See Neb. Rev. Stat. § 7-104 (Reissue 2012).
- 910 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 9061. Grievance and Investigation
In a letter dated March 11, 2016, the enforcement division
of the U.S. Securities and Exchange Commission (SEC) noti-
fied the Counsel for Discipline of “possible professional mis-
conduct” by Nimmer. The SEC had subpoenaed records from
Nimmer’s client trust account in connection with an unrelated
investigation and reported that its “review of Nimmer’s trust
account transactions revealed that he wrote numerous checks
for personal expenses, ranging from rent and child support to
dog boarding and landscaping fees.” On March 18, the Counsel
for Discipline notified Nimmer that he was the subject of an
investigation and provided him a copy of the grievance.2
On June 8, 2016, the Counsel for Discipline provided Nimmer
with copies of the bank records subpoenaed by the SEC and
asked him to explain several checks written on his client trust
account that did not appear to be client related. Nimmer was
also asked to explain a $10,000 check from his mother with
the memorandum notation “loan” which had been deposited
into his client trust account. Nimmer declined, at the time, to
answer the questions posed by the Counsel for Discipline.
The Counsel for Discipline then subpoenaed Nimmer’s cli-
ent trust account records directly from the bank. Through two
subpoenas, records were obtained for the time period from
January 1, 2006, through September 1, 2016. After reviewing
these records, the Counsel for Discipline determined there were
reasonable grounds for discipline, and thus reduced the SEC’s
grievance to a complaint and forwarded it to the Committee on
Inquiry of the Fourth Judicial District.3 Thereafter, the inquiry
panel found reasonable grounds for discipline and determined
it would be in the public’s interest to file formal charges.4
2
See Neb. Ct. R. § 3-309(D) (rev. 2011).
3
See § 3-309(G).
4
See § 3-309(H)(4).
- 911 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 9062. Formal Charges
On February 1, 2017, the Counsel for Discipline filed for-
mal charges against Nimmer. It alleged that between January
2006 and February 2016, Nimmer wrote personal checks on
his client trust account to 29 different businesses, individuals,
and organizations. Additionally, it alleged that on December
20, 2007, Nimmer deposited a $10,000 check from his mother
issued to him with the notation “loan” into his client trust
account. The formal charges alleged that by using his client
trust account in this fashion, Nimmer commingled his per-
sonal funds with client funds and thereby violated his oath
of office as an attorney licensed to practice in Nebraska5 and
§ 3-501.15, which provides in part:
(a) A lawyer shall hold property of clients or third per-
sons that is in a lawyer’s possession in connection with a
representation separate from the lawyer’s own property.
Funds shall be kept in a separate account maintained
in the state where the lawyer’s office is situated. Other
property shall be identified as such and appropriately
safeguarded. Complete records of such account funds
and other property shall be kept by the lawyer and shall
be preserved for a period of 5 years after termination of
the representation.
(b) A lawyer may deposit the lawyer’s own funds in a
client trust account for the sole purpose of paying bank
service charges on that account, but only in an amount
necessary for that purpose.
The formal charges also alleged Nimmer’s actions violated
§ 3-508.4, which provides in relevant part that it is professional
misconduct for a lawyer to “violate or attempt to violate the
Rules of Professional Conduct.”6
5
See § 7-104.
6
§ 3-508.4(a).
- 912 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 9063. Nimmer Moves to
Dismiss and R ecuse
Nimmer filed a motion to dismiss the formal charges, alleg-
ing the Counsel for Discipline “is part of the Nebraska judicial
branch under the direct supervision of this Court, which vio-
lates separation of powers, which violates constitutional due
process, which in turn negates [the Counsel for Discipline]
from having standing to have filed the Formal Charges, thereby
constituting a lack of subject matter jurisdiction.” This court
overruled Nimmer’s motion to dismiss as meritless.7
Nimmer also moved to recuse the Counsel for Discipline,
alleging he had a conflict of interest because Nimmer planned
to call him as a necessary fact witness. We overruled his
motion to recuse, but determined it was prudent under the cir-
cumstances to appoint a special prosecutor.
4. Nimmer Files A nswer and
Second Motion to Dismiss
After his motion to dismiss was overruled, Nimmer filed
a verified answer to the formal charges. His answer admitted
some of the factual allegations in the formal charges, but gen-
erally denied that his conduct amounted to commingling in vio-
lation of the disciplinary rules. Additionally, Nimmer’s answer
raised several affirmative defenses which will be addressed
later in this opinion.
Nimmer also filed a second motion to dismiss, this time
asking that the disciplinary proceeding be dismissed without
prejudice due to alleged procedural errors predating the filing
of the formal charges. This court found the motion was merit-
less and overruled it.
7
See, e.g., Noffsinger v. Nebraska State Bar Assn., 261 Neb. 184, 622
N.W.2d 620 (2001) (matters regarding admission, suspension, discipline
and disbarment of attorneys rest exclusively with Nebraska Supreme
Court; in exercising its inherent power to regulate bar, court uses Counsel
for Discipline to investigate allegations of misconduct and to prepare, file,
and dismiss charges of misconduct against attorneys).
- 913 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 9065. Nimmer Seeks to Exclude Client
Trust Account R ecords
Nimmer filed “Motions to Quash Subpoenas and Exclude
Evidence,” seeking to prevent his client trust account records
from being offered at the disciplinary hearing. He argued
the records had been obtained improperly and suggested
the SEC had violated federal privacy laws when it provided
his trust account records to the Counsel for Discipline in
connection with the grievance. Nimmer acknowledged that
after receiving the grievance, the Counsel for Discipline
independently subpoenaed the trust account records as part
of the disciplinary investigation.8 Nimmer did not claim
those subpoenas were unreasonable or oppressive,9 but argued
he did not have an opportunity to object and thus asked
that all records produced in response to those subpoenas be
excluded.
Additionally, Nimmer asked that any client trust account
records more than 5 years old be excluded even if more
recent records were admitted. In support, Nimmer relied on
§ 3-501.15(a), which requires attorneys to maintain complete
records of client property for 5 years after termination of
the representation. Nimmer claimed that because he had not
retained any client records predating 2011, the Counsel for
Discipline should be prevented from offering any subpoenaed
trust account records for that period.
The referee found no merit to Nimmer’s arguments for
exclusion of the subpoenaed trust account records and over-
ruled the motions.
6. Evidentiary Hearing
On December 4, 2017, an evidentiary hearing was held on
the formal charges. Nimmer represented himself and was the
only witness to testify.
8
See Neb. Ct. R. § 3-317(A).
9
See § 3-317(D).
- 914 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906(a) Exhibits
The special prosecutor introduced, and the referee received,
Nimmer’s client trust account records from 2006 through
2016. Nimmer did not dispute the veracity of those records
and instead stated, “I’ll concede every transaction in this
exhibit is a bona fide transaction. Whatever the notations say,
they say. . . . [T]he exhibit speaks for itself.”
The special prosecutor also introduced, and the referee
received, a record of a prior attorney disciplinary proceeding
involving Nimmer. In 2013, the Counsel for Discipline alleged
Nimmer had received $12,500 from a client to deliver “quali-
fied investors” as advertised on his website and then failed to
provide such services.10 Nimmer’s actions were alleged to have
violated Neb. Ct. R. Prof. Cond. § 3-507.1 and § 3-508.4(a).11
Nimmer entered a conditional admission to the 2013 charges
and requested a public reprimand.12 This court accepted his
conditional admission and issued a public reprimand.13
(b) Nimmer’s Testimony
As stated, at the hearing, Nimmer did not dispute the
veracity of the client trust account records or the accuracy
of the notations on various checks deposited into and written
on the client trust account. For instance, Nimmer admitted
writing numerous checks for personal expenses from his cli-
ent trust account over the course of several years, including
checks for rent, checks to his church, checks to his mother,
and checks for his daughter’s summer camp. He also admitted
his mother had given him thousands of dollars that he depos-
ited into his client trust account. Nimmer characterized these
deposits as “credit line[s],” rather than “loan[s]” from his
mother, but he admitted the funds were placed into his client
10
State ex rel. Counsel for Dis. v. Nimmer, 286 Neb. 107, 834 N.W.2d 776(2013).
11
Id.12
Id.13
Id.- 915 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906trust account and were available for his personal use “or hers,
if she asked.”
Nimmer also admitted that on several occasions, he trans-
ferred funds from his personal checking account into his client
trust account. He admitted these funds were not transferred to
pay bank service charges and were not connected to the repre-
sentation of any client.
(c) Nimmer’s Affirmative
Defenses
While Nimmer did not vigorously contest the documentary
evidence detailing the non-client-related funds going into and
out of his client trust account, he did argue that this activity
did not amount to unlawful commingling. In support of this
contention, Nimmer advanced three basic arguments, which he
framed as affirmative defenses. First, he argued that writing
personal checks directly from his client trust account was not
a violation of § 3-501.15, because it was possible he was writ-
ing those checks on earned fees. Second, he argued § 3-501.15
does not prohibit attorneys from depositing non-client-related
funds into a client trust account. And third, he argued that even
if the referee found he had violated the rules against commin-
gling personal and client funds, he acted in “good faith” and
thus should be exempt from discipline. He makes these same
arguments in his briefing to this court, and we address them
later in our analysis.
7. R eferee’s R eport and
R ecommendation
On February, 13, 2018, the referee filed his written report.
The referee found, summarized, that from January 1, 2006,
through September 1, 2016, Nimmer impermissibly deposited
personal funds into his client trust account in amounts more
than necessary to pay bank service charges on that account and
used his client trust account to pay personal expenses. It is not
necessary to recite all of the referee’s factual findings, but the
following are representative:
- 916 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906• On or about December 20, 2007, Nimmer deposited a $10,000
check from his mother with the notation “‘loan’” into his cli-
ent trust account. Nimmer admitted these funds were for his
personal use, but were also available to pay his mother’s
personal expenses if she asked. In that regard, Nimmer wrote
a check from the client trust account in the amount of $4,775
to a construction company for repairs to his mother’s house,
and wrote several checks to his mother for a car he was pur-
chasing from her. None of these checks or transactions were
connected to representation of a client.
• On or about June 25, 2013, Nimmer deposited two checks
totaling $10,855.18 into his client trust account. The checks
had been made payable to Nimmer’s mother, and she endorsed
both checks over to him. Nimmer described this deposit as
a “‘credit line’” from his mother. He admitted the funds
were not connected to the representation of any client, but,
rather, were intended to be used by Nimmer for his personal
expenses if necessary.
• On multiple occasions in 2014 and 2016, Nimmer transferred
money from his personal checking account into his attorney
trust account. Nimmer admitted these transfers were not to
pay bank fees and were not in connection with any client rep-
resentation, but he claimed the transfers were “for the benefit
of” his daughter.
• Nimmer wrote approximately 35 checks on his client
trust account to his church, with notations such as “dues,”
“Almsgiving Fund,” “dinner tickets,” and “Food for Hungry
Funds.” Nimmer admitted the notations on the checks were
accurate and the payments were not made in connection with
client representation.
• Nimmer wrote multiple checks over multiple years out of his
client trust account to Camp St. Raphael. Nimmer admitted
those checks were for his daughter’s summer camp and were
not connected to any client representation.
• Nimmer wrote approximately 20 checks on his client trust
account payable to the landlord of his Omaha law office
- 917 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906in the amount of either $1,750, $2,000, or some multiple
thereof. Nimmer admitted these checks were “‘most prob-
ably’” for his rent.
Based on these and other factual findings, the referee con-
cluded there was clear and convincing evidence Nimmer
violated §§ 3-501.15(a) and (b) (safekeeping property) and
3-508.4 (misconduct), and thereby violated his oath of office
as a licensed attorney. The referee expressly rejected all of
Nimmer’s affirmative defenses.
The referee also made a recommendation regarding an
appropriate sanction. The referee analyzed each of the six fac-
tors outlined in State ex rel. Counsel for Dis. v. Jorgenson14
and found several aggravating factors, including that
(1) Nimmer had been disciplined previously in 2013, (2)
Nimmer’s misconduct in commingling client funds and per-
sonal funds went on for nearly a decade, and (3) Nimmer
had written “a large number of checks” for personal expenses
on his client trust account. The referee found as a mitigat-
ing factor that Nimmer had not “misappropriate[d] any client
funds.” Ultimately, the referee recommended that Nimmer
be (1) suspended from the practice of law for a period of
1 year, (2) required to complete 6 credit hours of continu-
ing legal education in the area of professional responsibil-
ity focused on law office management prior to reinstate-
ment, and (3) placed on probation for 2 years during which
time he must practice under the supervision of a licensed
Nebraska attorney.
Nimmer timely filed a written exception to the referee’s
report, the particulars of which we address below. The matter
has been briefed and argued before this court15 and now is sub-
mitted for our determination on the questions of which, if any,
14
State ex rel. Counsel for Dis. v. Jorgenson, 298 Neb. 855, 906 N.W.2d 43(2018).
15
See Neb. Ct. R. § 3-310(M) (rev. 2014).
- 918 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906Nebraska Rules of Professional Conduct were violated and the
appropriate sanction for any such violation.16
II. 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.17
III. ANALYSIS
1. Nimmer’s Exceptions
to R eferee’s R eport
Nimmer’s written exceptions challenge nearly every aspect
of the referee’s report. Consolidated and summarized, Nimmer
takes exception to the referee’s (1) evidentiary rulings, includ-
ing admitting the subpoenaed records of Nimmer’s client trust
account; (2) finding clear and convincing evidence of discipli­
nary violations; (3) rejecting Nimmer’s affirmative defenses;
and (4) recommending a 1-year suspension.
Nimmer’s brief addresses these exceptions as “assignments
of error” made by the referee, but we decline to address them
framed as such, because we do not sit in this matter as an
appellate court reviewing the record for error. Rather, proceed-
ings for attorney discipline are original proceedings before the
Nebraska Supreme Court.18
In such original proceedings, when an answer raises an issue
of fact requiring a hearing, we refer the matter to a referee to
16
State ex rel. Counsel for Dis. v. Herzog, 281 Neb. 816, 805 N.W.2d 632(2011). See, also, State ex rel. Counsel for Discipline v. Gast, 296 Neb. 687,
696-97, 896 N.W.2d 583, 591 (2017) (“[t]he 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”).
17
State ex rel. Counsel for Dis. v. Trembly, ante p. 195, 912 N.W.2d 764(2018).
18
§ 3-310(C).
- 919 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906oversee discovery and hold a hearing.19 The referee observes
the rules of evidence, discovery, and motion practice applicable
in civil actions in Nebraska district courts and is required to
make a written report stating his or her findings of fact and
recommendations.20 The referee’s report is transmitted to this
court along with the record of proceedings,21 and if no written
exception is taken, this court may, in its discretion, accept the
referees’ findings as final and conclusive.22
[2] But where, as here, a party takes exception to the ref-
eree’s report, this court conducts a trial de novo on the record
in which we reach a conclusion independent of the findings
of the referee; provided, however, that where the credible
evidence is in conflict on a material issue of fact, we con-
sider and may give weight to the fact that the referee heard
and observed the witnesses and accepted one version of the
facts rather than another.23 Because of this standard, Nimmer’s
claims of errors by the referee are simply “immaterial to our
review.”24
We thus proceed to consider Nimmer’s exceptions, but we
necessarily limit our consideration to the evidence properly
admitted, and we reach our own conclusion, independent of the
referee’s findings and recommendation, on the central ques-
tions of whether any Nebraska Rules of Professional Conduct
have been violated, and the appropriate sanction for any such
violation.25
For the sake of completeness, we also note that Nimmer’s
brief assigns error to this court’s prior decisions overruling his
19
See § 3-310(J).
20
Id.
21
Id.
22
§ 3-310(L).
23
Herzog, supra note 16.
24
Id. at 822, 805 N.W.2d at 637.
25
Id.
- 920 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906two motions to dismiss this disciplinary proceeding. We con-
strue these assignments as requests for this court to exercise
its inherent authority to reconsider those decisions,26 and we
decline to do so.
2. Nimmer’s Client Trust Account
R ecords Were Properly A dmitted
Throughout the proceedings before the referee, and in his
briefing and oral argument before this court, Nimmer has
repeatedly challenged the admissibility of his client trust
account records, particularly those predating 2011. The referee
found all of Nimmer’s arguments in this regard to be without
merit. We do too.
[3] With exceptions not relevant here, all lawyers admit-
ted to practice law on active status with an office in Nebraska
must have and maintain a client trust account in an approved
financial institution.27 Additionally, the Counsel for Discipline
has the broad power to “audit at any time any trust account
required by these rules.”28 And we have recognized that client
trust accounts, in particular, are always open to review by the
Counsel for Discipline.29 The Counsel for Discipline has broad
subpoena power for investigative purposes,30 and in this case,
the Counsel for Discipline followed the appropriate procedure
in subpoenaing Nimmer’s client trust account records.31
Nimmer also argues that even if his client trust account
records were properly obtained, all such records before 2011
26
See Houser v. American Paving Asphalt, 299 Neb. 1, 907 N.W.2d 16(2018) (appellate court has inherent power to reconsider order or ruling
until divested of jurisdiction).
27
Neb. Ct. R. § 3-902.
28
Neb. Ct. R. § 3-906.
29
State ex rel. Counsel for Dis. v. Crawford, 285 Neb. 321, 827 N.W.2d 214(2013).
30
§ 3-317(A).
31
§ 3-317(B).
- 921 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906should nevertheless have been excluded from evidence. He
reasons that § 3-501.15(a) requires lawyers to preserve records
of client trust accounts “for a period of 5 years after termina-
tion of the representation.” Nimmer maintains that in reliance
on this rule, he did not save client subsidiary ledgers prior to
2011; thus, he argues it would be “unfair” to allow disciplinary
proceedings against him based on allegations of commingling
more than 5 years ago.
[4,5] Nimmer’s reliance on the document preservation
requirement in § 3-501.15(a) is misplaced. An attorney’s fail-
ure to preserve client trust account records does not provide an
affirmative defense to charges of impermissible commingling,
nor does the 5-year preservation rule constrain or limit the
Counsel for Discipline’s investigative or prosecutorial duties.
There is no time limitation on the acts or omissions that can
give rise to attorney discipline for violating the Nebraska
Rules of Professional Conduct, the attorney’s oath, or the pro-
visions of Nebraska’s disciplinary rules.32
Moreover, Nimmer repeatedly points to the document pres-
ervation rule as the reason he is unable to adequately explain
the personal funds going into and out of his client trust
account. But we have difficulty with his suggestion that cli-
ent ledgers would reveal anything of relevance, given the
nature of the charges here. The alleged disciplinary viola-
tions stem from Nimmer’s impermissible use of his client
trust account as a personal checking account; such use, by
its nature, would not have been documented in client ledgers.
And it is telling that despite the availability of his post-2011
client ledgers, Nimmer points to nothing in those records that
adequately explains the violations found to have occurred dur-
ing that timeframe.
We conclude that all of Nimmer’s client trust account
records from the period from 2006 through 2016 were prop-
erly obtained by the Counsel for Discipline, were provided to
32
See Neb. Ct. R. § 3-303.
- 922 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906Nimmer well in advance of the hearing, were properly admit-
ted into evidence by the referee, and are properly before this
court for consideration.
3. General Principles in
Disciplinary Proceedings
[6-9] Attorneys licensed to practice law in the State of
Nebraska agree to operate under the supervision of the office
of the Counsel for Discipline.33 A license to practice law con-
fers no vested right, but is a conditional privilege, revocable
for cause.34 Violation of any of the ethical standards relating
to the practice of law or any conduct of an attorney in his or
her professional capacity which tends to bring reproach on the
courts or the legal profession constitutes grounds for suspen-
sion or disbarment.35 Violation of those standards, which are
set forth in the disciplinary rules, must be established by clear
and convincing evidence.36
4. There Is Clear and Convincing
Evidence of Violations
Our de novo review shows clear and convincing evidence
that Nimmer violated § 3-501.15(a) and (b), and thereby vio-
lated § 3-508.4(a) and his oath of office under § 7-104.
Section 3-501.15(a) requires a lawyer to “hold property of
clients or third persons that is in a lawyer’s possession in con-
nection with a representation separate from the lawyer’s own
property.” This rule requires that client “[f]unds shall be kept
in a separate account maintained in the state where the law-
yer’s office is situated.”
Section 3-501.15(b) recognizes one circumstance under
which it is permissible for an attorney to deposit his or her
own funds into a client trust account. “A lawyer may deposit
33
Crawford, supra note 29.
34
Id.
35
Id.
36
Id.
- 923 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906the lawyer’s own funds in a client trust account for the sole
purpose of paying bank service charges on that account, but
only in an amount necessary for that purpose.”
[10,11] Collectively, subsections (a) and (b) of § 3-501.15
prohibit the commingling of client funds with an attorney’s
personal funds. Generally speaking, an attorney violates the
rule against commingling when the funds of the client are
intermingled with those of the attorney in such a way that their
separate identity is lost and they may be used by the attorney
for personal expenses or subjected to the claims of the attor-
ney’s creditors.37
In State ex rel. Counsel for Dis. v. Davis,38 we found
clear and convincing evidence of commingling in violation of
§ 3-501.15(a) and (b) when the attorney used her client trust
account as both a business account and a personal checking
account. We reach the same conclusion in the present case.
Here, the record is replete with evidence that Nimmer used
his client trust account as a personal checking account. From
2006 through 2016, Nimmer deposited thousands of dollars
in personal funds into his client trust account. Some of these
personal funds were from his mother and some were trans-
ferred directly from his personal checking account, but none
were for the sole purpose of paying bank service charges on
the account.
Nimmer regularly wrote checks on his client trust account
for personal and business expenses. Much of this evidence
was admitted by Nimmer and has been summarized in the
referee’s findings recited previously. But in addition to the
referee’s findings, our de novo review reveals considerable
circumstantial evidence that Nimmer’s use of his client trust
account as a personal checking account was more pervasive
than the referee’s report would suggest. Given the volume
37
Annot., 94 A.L.R.3d 846, § 3 (1979 & Supp. 2018).
38
State ex rel. Counsel for Dis. v. Davis, 276 Neb. 158, 760 N.W.2d 928(2008).
- 924 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906of that circumstantial evidence, we cite a few representa-
tive examples.
From 2005 through 2009, Nimmer wrote 19 checks on his
client trust account to the Omaha Public Power District. He
testified these checks were “more likely than not” his utility
payments, but claimed that without his pre-2011 subsidiary
trust account records, he could not be certain.
From 2006 through 2009, Nimmer wrote 27 checks on his
client trust account to “Cox Communications.” Nimmer testi-
fied that Cox Communications was his current Internet service
provider and was not a client of his, but he could not remember
whether he had the same provider at the time the checks were
written and did not want to “venture a guess.”
Nimmer wrote a check to his ex-wife on the client trust
account with the notation “Jan./Feb. health ins.” Nimmer testi-
fied this check “may have” been a payment to his ex-wife for
his daughter’s health insurance, but he did not “remember for
sure.” Additionally, Nimmer wrote at least 22 other checks to
his ex-wife, many with notations such as “camp,” “daycamp,”
“Rachel’s camp,” “travel,” and “cookies.” Nimmer admitted
these checks were not related to any client representation,
but when asked if the checks represented personal payments
on behalf of his daughter, Nimmer replied, “I’m not going to
characterize them that way.” Nimmer himself offered several
exhibits documenting payments he made from his client trust
account in 2011, 2013, 2014, and 2016 for his daughter’s sum-
mer camp.
Nimmer wrote approximately 15 checks from his client trust
account to “Cricket.” Nimmer testified, “I think Cricket is a
cell phone provider,” but he did not recall why he had written
the checks.
In 2007, Nimmer wrote a check from his client trust account
to the Nebraska State Bar Association in the amount of $320.
When asked whether he was paying his bar dues out of his cli-
ent trust account, Nimmer replied, “There is no notation that
allows me to say for sure.”
- 925 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906[12] Disciplinary violations can be proved by circumstantial
evidence,39 and in this case, we find considerable direct and
circumstantial evidence which provides clear and convincing
proof that Nimmer commingled client and personal funds in
his client trust account and used his client trust account as
a personal checking account. This misuse of his client trust
account violated § 3-501.15(a) and (b). And by doing so,
Nimmer also violated § 3-508.4(a) and his oath of office under
§ 7-104.
5. No Merit to Nimmer’s
A ffirmative Defenses
Nimmer does not deny depositing non-client-related funds
into his client trust account, nor does he deny paying personal
expenses for himself, his mother, and his daughter out of his
client trust account. Instead, Nimmer raises several arguments,
framed as affirmative defenses, which he contends preclude a
finding that he used his client trust account in violation of the
Nebraska Rules of Professional Conduct. We address his argu-
ments below, and find all to be meritless.
(a) Earned Fees
Nimmer’s verified answer alleged “it is possible though
unlikely [I] may have paid some personal expenses from fees
as earned—though without recourse to subsidiary ledgers it is
impossible to link specific transactions to specifically earned
fees.” Before the referee and in his briefing to this court,
Nimmer argues that it is possible he was writing personal
checks on earned fees. He offered no contemporaneous bill-
ings or other credible evidence to support such a theory. And
even assuming that some of the funds in Nimmer’s client trust
account may have represented earned fees, Nimmer did not
withdraw legal fees and expenses from the client trust account
39
Crawford, supra note 29 (demonstrating that even evidence which is
largely circumstantial, disputed, and complicated can nonetheless be clear
and convincing).
- 926 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906as they were earned to place them in an operating account.40
Instead, he wrote checks for personal expenses directly from
his client trust account and now attempts to defend his actions
by suggesting it is possible he was using earned fees. We reject
this affirmative defense as speculative and unproven, and even
if Nimmer had offered sufficient proof of earned fees, it would
not have excused or explained his commingling.
(b) “Third-Party” Funds
Nimmer argues he did not violate § 3-501.15 by deposit-
ing personal funds into his client trust account, because, he
contends, any funds deposited were not his personal funds,
but instead belonged to nonclient “third parties,” such as his
daughter and his mother. His attempt to characterize personal
loans from his mother and funds from his personal checking
account as anything other than his “own funds” is disingenu-
ous. But even more troubling is Nimmer’s proffered interpreta-
tion of § 3-501.15(a).
In Nimmer’s answer, he “affirmatively avers holding third
party funds in an attorney trust account not in connection with
legal representation is not prohibited.” In his arguments to this
court, Nimmer contends that § 3-501.15(a) permits an attorney
to deposit “third party” funds into a client trust account, even
if such funds are unconnected to representing a client. We dis-
agree, and reject Nimmer’s position as patently contrary to the
plain language of § 3-501.15(a).
Section 3-501.15(a) plainly requires that property of “cli-
ents” and property of “third persons . . . in a lawyer’s posses-
sion in connection with a representation” shall be kept separate
from the lawyer’s own property and that all “[f]unds” must be
kept “in a separate account” and all “[o]ther property” must be
“identified as such and appropriately safeguarded.”
While this rule references “third persons,” it does so only in
the context of funds in the lawyer’s possession “in connection
40
See § 3-501.15(c).
- 927 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906with a [client] representation.” Additionally, the client trust
account here was an interest-bearing trust account subject to
additional rules found in chapter 3, article 9, of this court’s
rules. Those rules make clear that such accounts are for “the
deposit of funds of clients”41 and not, as Nimmer suggests, for
holding “third-party” funds that have no connection to the rep-
resentation of a client.
Nimmer’s proposed interpretation of § 3-501.15(a) borders
on frivolous and provides no defense to commingling.
(c) No “[G]ood [F]aith” Defense
to Commingling
Finally, Nimmer argues that if we determine his use of
the client trust account violated § 3-501.15(a) and (b) by
commingling personal and client funds, then a “good faith”
defense should apply to protect him from discipline, because,
he contends, the commingling provisions of § 3-501.15(a)
are not sufficiently clear. The referee found that the “good
faith” defense, sometimes relied upon in defending legal
malpractice cases, did not apply to protect Nimmer from
the consequences of violating clear disciplinary rules pro-
hibiting the commingling of client and personal funds.
We agree.
Although we have recognized a “good faith” defense to
civil liability in legal malpractice claims when the law is not
well settled,42 we have not applied such a defense in the attor-
ney discipline context, and for good reason. It has no proper
application.
[13] In the context of attorney discipline cases, “‘[w]e
have repeatedly recognized the ancient maxim that ignorance
of the law is no excuse. It is a maxim sanctioned by centu-
ries of experience [and it] applies with even greater emphasis
41
See § 3-902.
42
See Baker v. Fabian, Thielen & Thielen, 254 Neb. 697, 578 N.W.2d 446(1998).
- 928 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906to an attorney at law who is expected to be learned in
the law.’”43
[14] Simply put, neither good faith nor ignorance of the
rules prohibiting commingling client and personal funds pro-
vides a defense to a disciplinary charge that an attorney vio-
lated the rules against commingling.44 The District of Columbia
Court of Appeals explained it well: “If a failure to understand
the most central Rules of Professional Conduct could be an
acceptable defense for a charged violation, even in cases of
good faith mistake, the public’s confidence in the bar and,
more importantly, the public’s protection against lawyer over-
reaching would diminish considerably.”45
We agree with this reasoning. Nimmer cannot avoid disci-
plinary sanctions for violating the fundamental rules prohibit-
ing commingling by relying on a “good faith” defense.
6. A ppropriate Sanction
Having concluded Nimmer violated the Nebraska Rules of
Professional Conduct and his oath of office by commingling
client and personal funds, we must determine the appropri-
ate sanction.
[15,16] To determine whether and to what extent dis-
cipline should be imposed in an attorney discipline pro-
ceeding, 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.46 Each attorney discipline
43
State ex rel. Nebraska State Bar Assn. v. Hollstein, 202 Neb. 40, 58, 274
N.W.2d 508, 518 (1979).
44
94 A.L.R.3d, supra note 37, § 10 (and cases cited therein).
45
In re Smith, 817 A.2d 196, 202 (D.C. 2003).
46
Trembly, supra note 17.
- 929 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906case must be evaluated in light of its particular facts and
circumstances.47
[17,18] For purposes of determining the proper discipline
of an attorney, we consider the attorney’s actions both under-
lying the events of the case and throughout the proceeding, as
well as any aggravating or mitigating factors.48 The propriety
of a sanction must be considered with reference to the sanc-
tions imposed in prior similar cases.49
[19] 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[.]”
(a) Nature of Offense
[20] This court considers commingling of client funds
with an attorney’s own funds to be a matter of gravest con-
cern in reviewing claims of lawyer misconduct.50 We have
recognized:
The prohibition against commingling of funds is a salu-
tary rule adopted “‘to provide against the probability in
some cases, the possibility in many cases, and the dan-
ger in all cases that such commingling will result in the
loss of clients’ money. Moral turpitude is not necessarily
involved in the commingling of a client’s money with an
attorney’s own money if the client’s money is not endan-
gered by such procedure and is always available to him.
However, inherently there is danger in such practice for
47
Id.
48
Id.
49
Id.
50
State ex rel. NSBA v. Statmore, 218 Neb. 138, 352 N.W.2d 875 (1984).
- 930 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906frequently unforeseen circumstances arise jeopardizing
the safety of the client’s funds, and as far as the client
is concerned the result is the same whether his money is
deliberately misappropriated by an attorney or is unin-
tentionally lost by circumstances beyond the control of
the attorney.’”51
Even when the client suffers no loss, commingling client
funds with personal funds is not a trivial or technical rule
violation.52
(b) Need for Deterring Others
It has been suggested that violating the rule against com-
mingling is one of the most frequent bases for disciplinary
action against attorneys.53 As such, we agree with the referee
that the need to send a clear and strong message deterring
others from commingling client and personal funds, and from
using client trust accounts as personal checking accounts, is
paramount. It has been observed: “‘In most jurisdictions, disci-
plinary authorities treat violations of the rule against commin-
gling trust funds and personal funds very seriously . . . even
where the client or third party suffers no loss, harsh sanctions
usually follow as a prophylactic warning that com[m]ingling
cannot be tolerated.’”54
(c) Reputation of Bar
The referee correctly observed that misuse of client trust
accounts, even when it does not involve obvious misappro-
priation, harms the reputation of the entire legal profession by
undermining public confidence and trust in attorneys, in the
courts, and in the legal system generally.
51
Id. at 142, 352 N.W.2d at 878.
52
See Disciplinary Proceedings Against Mulligan, 365 Wis. 2d 43, 870
N.W.2d 233 (2015).
53
94 A.L.R.3d, supra note 37, § 2.
54
See Disciplinary Proceedings Against Mulligan, supra note 52, 365 Wis.
2d at 61-62, 870 N.W.2d at 242.
- 931 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906(d) Protection of Public
[21,22] The goal of attorney discipline proceedings is not
as much punishment as a determination of whether it is in the
public interest to allow an attorney to keep practicing law.55
Providing for the protection of the public requires the imposi-
tion of an adequate sanction to maintain public confidence in
the bar.56
(e) Attitude of Respondent
The referee found that although Nimmer had not admit-
ted his violations, he conceded that “he may have exercised
poor judgment.” The referee thus concluded, “It appears that
[Nimmer] is open to the need to seriously correct his practices
regarding his trust account management, but a period of sus-
pension is necessary to impress upon him the critical need to
do so.”
[23] An attorney’s admission of responsibility for his or
her actions reflects positively upon his or her attitude and
character and is to be considered in determining the appropri-
ate discipline.57 But while we consider and give weight to the
referee’s observations, our de novo review of the record sug-
gests that, rather than displaying remorse for his actions and
an openness to changing the behavior that prompted this disci-
plinary proceeding, Nimmer has generally refused to acknowl-
edge the wrongful nature of his conduct in commingling client
and personal funds.
Nimmer has challenged this court’s authority to discipline
him and repeatedly tried to prevent consideration and review
of his client trust account records. While lawyers facing dis-
ciplinary charges should not be discouraged in any way from
mounting a vigorous defense, some of the legal positions
55
Trembly, supra note 17.
56
Id.
57
State ex rel. Counsel for Dis. v. Petersen, 271 Neb. 262, 710 N.W.2d 646(2006).
- 932 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906advanced by Nimmer in this proceeding border on the frivo-
lous and reflect an attitude which bears negatively on his
willingness to conform his conduct to the Nebraska Rules of
Professional Conduct.
(f) Present or Future Fitness
to Practice Law
The referee observed that Nimmer “conducted himself dur-
ing the proceedings appropriately and with knowledge of the
law and procedure” and thus found “no evidence to suggest
that Nimmer is not fit to practice law.” Although we con-
sider and give weight to the fact that the referee heard and
observed Nimmer’s conduct during these proceedings, we
cannot ignore that Nimmer’s actions in using his client trust
account as a personal checking account demonstrated contin-
ued indifference to the fundamental rule against commingling,
which we conclude bears negatively on his future fitness to
practice law.
(g) Aggravating Factors
We agree with the referee that the record supports several
aggravating factors. Nimmer has already been publicly repri-
manded by this court for a violation of the Nebraska Rules of
Professional Conduct in a prior disciplinary proceeding.58
[24] Moreover, the extended period of time over which
Nimmer engaged in commingling, and the large number of
personal checks Nimmer wrote on his client trust account,
are additional aggravating factors. Nimmer did more than
commingle on one or two occasions—he engaged in a pat-
tern of conduct that spanned nearly a decade and involved
hundreds of checks totaling thousands of dollars. Because
cumulative acts of attorney misconduct are distinguishable
from isolated incidents, they justify more serious sanctions.59
58
See Nimmer, supra note 10.
59
State ex rel. Counsel for Dis. v. Walocha, 283 Neb. 474, 811 N.W.2d 174(2012).
- 933 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906Cumulative acts of misconduct can, and often do, lead to
disbarment.60
(h) Mitigating Factors
[25] The referee found “the central mitigating fact in this
case is that Nimmer did not misappropriate any client funds.”
We have defined misappropriation as any unauthorized use of
client funds entrusted to an attorney, including not only steal-
ing, but also unauthorized temporary use for the attorney’s
own purpose, whether or not the attorney derives any personal
gain or benefit therefrom.61
Nimmer was not charged with misappropriation of client
funds, but we do not agree this is a mitigating factor. We
note that after the years of commingling that occurred here,
it would be difficult to discern whether any client funds were
misappropriated. Sometimes an attorney can “so inextricably
com[m]ingle[] client and personal funds” in his or her trust
account that “it is impossible to know which or whose funds
were being used at any particular time.”62
[26] Here, we understand the referee’s observation that
Nimmer “did not misappropriate any client funds” to mean
the referee saw no evidence that Nimmer’s client trust account
was overdrawn or that clients suffered documented financial
loss. But we have been clear that lack of financial harm to cli-
ents is not a mitigating factor in commingling cases:
[A] lawyer’s poor accounting procedures and sloppy
office management are not excuses or mitigating circum-
stances in reference to commingled funds. The fact that
the client did not suffer any financial loss . . . does not
provide a reason for imposing a less severe sanction.”63
60
Id.61
Crawford, supra note 29.
62
See Disciplinary Proceedings Against Mulligan, supra note 52, 365 Wis.
2d at 63-64, 870 N.W.2d at 243.
63
Crawford, supra note 29, 285 Neb. at 365, 827 N.W.2d at 245.
- 934 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906Fortunately, there was no evidence that Nimmer’s clients suf-
fered a financial loss as a result of his commingling of funds.
However, we must respectfully disagree with the referee that
this should be considered a mitigating factor. And we see
nothing in the record, or the briefing, that suggests any other
mitigating factor.
(i) Other Cases
In State ex rel. Counsel for Dis. v. Davis,64 we suspended
an attorney for 1 year after finding by clear and convincing
evidence that she used her client trust account as a business
and personal checking account and failed to promptly deliver
trust account funds to a client’s health care provider. That
case, however, involved several mitigating factors includ-
ing: the attorney suffered from depression and anxiety, the
attorney was an alcoholic and agreed to undergo treatment,
the attorney had no prior disciplinary actions, and the referee
received multiple letters from the community attesting to the
attorney’s good character and reputation.65
In State ex rel. NSBA v. Veith,66 we disbarred an attor-
ney after finding by clear and convincing evidence that he
commingled, and misappropriated, client funds. In doing
so, we disagreed with the referee’s recommended discipline
of an 8-month suspension.67 And we found disbarment was
appropriate even though the attorney had reimbursed his
clients.68
In State ex rel. NSBA v. Malcom,69 we disbarred an attor-
ney after finding by clear and convincing evidence that he
64
Davis, supra note 38.
65
Id.66
State ex rel. NSBA v. Veith, 238 Neb. 239, 470 N.W.2d 549 (1991).
67
Id.68
Id.69
State ex rel. NSBA v. Malcom, 252 Neb. 263, 561 N.W.2d 237 (1997).
- 935 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906commingled and misappropriated client funds on 10 occa-
sions. We explained that the attorney’s excuse that the mis-
conduct was inadvertent did not overcome the presumption
of disbarment.70
(j) Appropriate Sanction
[27,28] Absent mitigating circumstances, this court has
repeatedly held that disbarment is the appropriate discipline
in cases of misappropriation or commingling of client funds.71
Mitigating factors may overcome the presumption of disbar-
ment in misappropriation and commingling cases where they
are extraordinary and substantially outweigh any aggravating
circumstances.72 In this case, we do not find any such mitigat-
ing factors.
For a period of nearly 10 years, Nimmer engaged in a pat-
tern of commingling personal funds with client funds and
using his client trust account as a personal checking account.
His violations were serious, and there is no evidence of
any mitigating factors in the record that explain or excuse
his misconduct.
Nimmer has been disciplined for misconduct previously, and
his prolonged and persistent violation of the rule against com-
mingling reflects a general failure, or unwillingness, to fully
comprehend the serious nature of his conduct. After balancing
the relevant factors in comparison to other cases, and consider-
ing the need to protect the public, the need to deter others, the
reputation of the bar as a whole, Nimmer’s fitness to practice
law, and the aggravating circumstances, we conclude the only
appropriate sanction here is disbarment.
70
Id.71
See, e.g., State ex rel. Counsel for Dis. v. Thebarge, 289 Neb. 356, 854
N.W.2d 914 (2014); State ex rel. Counsel for Dis. v. Council, 289 Neb. 33,
853 N.W.2d 844 (2014); Crawford, supra note 29; State ex rel. NSBA v.
Howze, 260 Neb. 547, 618 N.W.2d 663 (2000); Malcom, supra note 69.
72
Council, supra note 71.
- 936 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. NIMMER
Cite as 300 Neb. 906IV. CONCLUSION
There is clear and convincing evidence that Nimmer vio-
lated the Nebraska Rules of Professional Conduct and his oath
of office by commingling client and personal funds. It is the
judgment of this court that Nimmer is disbarred from the prac-
tice of law in the State of Nebraska, effective immediately. He
is directed 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.
Judgment of disbarment.