State ex rel. Counsel for Dis. v. Simon ( 2013 )

Nebraska Advance Sheets
78 287 NEBRASKA REPORTS
State of Nebraska ex rel. Counsel for Discipline of
the Nebraska Supreme Court, relator, v.
Lennox J. Simon, respondent.
___ N.W.2d ___
Filed December 20, 2013. No. S-13-726.
Original action. Judgment of disbarment.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller‑Lerman, and Cassel, JJ.
P er Curiam.
INTRODUCTION
The District of Columbia Court of Appeals disbarred
respond­nt, Lennox J. Simon. The Counsel for Discipline of
e
the Nebraska Supreme Court, relator, filed a motion for recip-
rocal discipline against respondent. We grant the motion for
reciprocal discipline and impose the same discipline as the
District of Columbia Court of Appeals.
FACTS
Respondent was admitted to the practice of law in the State
of Nebraska on May 17, 1985. Respondent was also admitted
to the practice of law in the District of Columbia. On June
28, 2013, respondent was suspended from the practice of
law in the State of Nebraska for nonpayment of his Nebraska
State Bar Association dues. Respondent had been an inac-
tive member of the Nebraska bar for many years prior to
his suspension.
On August 1, 2013, the District of Columbia Court of
Appeals issued an order which disbarred respondent. See In
re Simon, 73 A.3d 107 (D.C. 2013). Respondent’s case before
the District of Columbia Court of Appeals generally involved
his misappropriation of funds from the estate of an incapaci-
tated person.
On August 22, 2013, relator filed a motion for reciprocal
discipline pursuant to Neb. Ct. R. § 3‑321 of the disciplinary
rules. On August 28, we filed an order to show cause as to
why we should not impose reciprocal discipline. Respondent
did not respond to the order to show cause. On September 23,
Nebraska Advance Sheets
STATE EX REL. COUNSEL FOR DIS v. SIMON 79
Cite as 287 Neb. 78
relator filed a response to the order to show cause, in which
relator requested that we impose the same discipline as the
District of Columbia Court of Appeals and enter an order
disbarring respondent from the practice of law in the State of
Nebraska. Relator also noted that respondent failed to respond
to the order to show cause and to make a showing as to why he
should not be disbarred.
ANALYSIS
The basic issues in a disciplinary proceeding against an
attorney are whether discipline should be imposed and, if so,
the type of discipline appropriate under the circumstances.
State ex rel. Counsel for Dis. v. Kleinsmith, 285 Neb. 312,
826 N.W.2d 860 (2013). In a reciprocal discipline proceed-
ing, a judicial determination of attorney misconduct in one
jurisdiction is generally conclusive proof of guilt and is not
subject to relitigation in the second jurisdiction. Id. Based
on the record before us, we find that respondent has engaged
in misconduct.
Neb. Ct. R. § 3‑304 of the disciplinary rules provides that
the following may be considered as discipline for attorney
misconduct:
(A) Misconduct shall be grounds for:
(1) Disbarment by the Court; or
(2) Suspension by the Court; or
(3) Probation by the Court in lieu of or subsequent to
suspension, on such terms as the Court may designate; or
(4) Censure and reprimand by the Court; or
(5) Temporary suspension by the Court; or
(6) Private reprimand by the Committee on Inquiry or
Disciplinary Review Board.
(B) The Court may, in its discretion, impose one or
more of the disciplinary sanctions set forth above.
Section 3‑321 of the disciplinary rules provides in part:
(A) Upon being disciplined in another jurisdiction, a
member shall promptly inform the Counsel for Discipline
of the discipline imposed. Upon receipt by the Court of
appropriate notice that a member has been disciplined
in another jurisdiction, the Court may enter an order
Nebraska Advance Sheets
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imposing the identical discipline, or greater or lesser dis-
cipline as the Court deems appropriate, or, in its discre-
tion, suspend the member pending the imposition of final
discipline in such other jurisdiction.
In imposing attorney discipline, we evaluate each case in
light of its particular facts and circumstances. State ex rel.
Counsel for Dis. v. Walocha, 283 Neb. 474, 811 N.W.2d 174
(2012). Respondent did not respond to the order to show cause
filed on August 28, 2013, as to why we should or should not
enter an order imposing the identical or greater or lesser disci-
pline as imposed by the District of Columbia Court of Appeals,
as we deem appropriate.
The order of the District of Columbia Court of Appeals
disbarred respondent. Our record includes a “Report and
Recommendation of the Board on Professional Responsibility,”
which found that respondent’s misappropriation of funds was
“reckless.” The foregoing report was supported by an addi-
tional 42‑page report entitled “Report and Recommendation of
the Ad Hoc Hearing Committee,” which described respondent’s
misconduct in detail. We take the determination of misconduct
as found in In re Simon, 73 A.3d 107 (D.C. 2013), to be estab-
lished herein. Accordingly, we grant the motion for reciprocal
discipline and enter a judgment of disbarment.
CONCLUSION
The motion for reciprocal discipline is granted. It is the
judgment of this court that respondent should be and is dis-
barred. Respondent shall forthwith comply with all terms of
Neb. Ct. R. § 3‑316 of the disciplinary rules, and upon failure
to do so, he shall be subject to punishment for contempt of
this court. Respondent is directed to pay costs and expenses in
accordance with Neb. Rev. Stat. §§ 7‑114 and 7‑115 (Reissue
2012) and Neb. Ct. R. §§ 3‑310(P) and 3‑323(B) of the disci-
plinary rules within 60 days after an order imposing costs and
expenses, if any, is entered by this court.
Judgment of disbarment.