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

Nebraska Advance Sheets
STATE EX REL. COUNSEL FOR DIS. v. PFANSTIEL 129
Cite as 287 Neb. 129
State ofNebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator, v.
Christopher A. P fanstiel, respondent.
___ N.W.2d ___
Filed December 27, 2013. No. S-13-833.
Original action. Judgment of public reprimand.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
P er Curiam.
INTRODUCTION
Respondent, Christopher A. Pfanstiel, was admitted to the
practice of law in the State of Nebraska on January 17, 2000.
At all relevant times, he was engaged in the private practice of
law in Omaha, Nebraska. On September 25, 2013, the Counsel
for Discipline of the Nebraska Supreme Court filed formal
charges consisting of one count against respondent. In the one
count, it was alleged that by his conduct, respondent had vio-
lated his oath of office as an attorney, Neb. Rev. Stat. § 7-104
(Reissue 2012), Neb. Ct. R. § 3-318 of the disciplinary rules,
and Neb. Ct. R. of Prof. Cond. §§ 3-503.3(a) (candor toward
tribunal) and 3-508.4(a) and (d) (misconduct).
On November 8, 2013, respondent filed a conditional admis-
sion pursuant to Neb. Ct. R. § 3-313 of the disciplinary rules,
in which he conditionally admitted that he violated his oath of
office as an attorney and §§ 3-318, 3-503.3(a), and 3-508.4(a)
and (d). Respondent knowingly chose not to challenge or
contest the truth of the matters conditionally admitted and
waived all proceedings against him in connection therewith in
exchange for a public reprimand.
The proposed conditional admission included a declaration
by the Counsel for Discipline, stating that respondent’s request
for public reprimand is appropriate.
Upon due consideration, we approve the conditional admis-
sion and order that respondent be publicly reprimanded.
Nebraska Advance Sheets
130 287 NEBRASKA REPORTS
FACTS
The formal charges state that on January 20, 2012, respond­
ent was personally sued in the county court for Douglas
County to collect on a plumbing bill incurred by respondent in
the amount of $1,158.96. See Credit Bureau Services, Inc. v.
Christopher A. Pfanstiel, case No. CI 12-1712. Respondent was
personally served with summons on January 25.
On January 30, 2012, respondent filed a motion to dismiss,
alleging that the county court for Douglas County lacked
jurisdiction because the plumbing services were contracted for
and provided with respect to property owned by respondent in
Saunders County. Respondent scheduled his motion to be heard
on February 9 and sent notice to the attorneys representing
Credit Bureau Services, Inc.
On February 3, 2012, an attorney representing Credit Bureau
Services (the first attorney) filed a motion to continue the hear-
ing of respondent’s motion to February 23, and a copy of the
motion to continue was mailed to respondent. On February
7, the county court issued an order continuing the hearing on
respondent’s motion to dismiss to February 23.
On February 23, 2012, respondent’s motion to dismiss came
on for hearing before the county court. Respondent failed to
attend the hearing, and the court overruled the motion.
On March 14, 2012, a second attorney representing Credit
Bureau Services (the second attorney) filed a motion for
default judgment against respondent. On that day, the court
entered default judgment against respondent in the amount of
$1,158.96. Notice of the default judgment was mailed by the
county court to respondent’s residence in Omaha.
On March 16, 2012, respondent filed a motion to vacate
the default judgment claiming that he had not received a
copy of the first attorney’s motion to continue or the county
court’s order rescheduling his motion to dismiss to February
23, and thus he did not appear for the hearing on February
23. Respondent requested that the default judgment be vacated
and that his motion to dismiss be scheduled for a hearing.
Respondent scheduled the hearing on his motion to vacate for
April 12 and mailed a copy of the motion and notice to the
second attorney.
Nebraska Advance Sheets
STATE EX REL. COUNSEL FOR DIS. v. PFANSTIEL 131
Cite as 287 Neb. 129
On April 12, 2012, respondent’s motion to vacate the
default judgment came on for hearing. Respondent did not
attend the hearing, and the county court denied respond­
ent’s motion.
On April 16, 2012, respondent filed an amended motion
to vacate the default judgment, and a hearing on the motion
was set for May 10. On May 10, the county court vacated
the default judgment previously entered against respondent,
and respondent was granted 10 days to file an answer to
the complaint. On May 15, respondent filed his answer and
counterclaim.
Also on May 15, 2012, respondent again filed his motion
to dismiss, alleging that the county court lacked jurisdiction.
A hearing was set on the motion to dismiss for June 28. At
the hearing on June 28, the court denied respondent’s motion
to dismiss.
On June 28, 2012, the first attorney filed a motion for
sanctions against respondent based on respondent’s failing
to attend the hearings on the two motions that respondent
had filed in the pending case. The hearing on the motion
for sanctions was held on September 27, at which time
respondent was sanctioned and ordered to pay $700 to Credit
Bureau Services.
On or about January 5, 2013, respondent moved his office
from its location on 130th Street in Omaha to a location on
Pacific Street in Omaha. Respondent did not file a change of
address with the county court for Douglas County, nor did he
send a change of address notice to the attorneys representing
Credit Bureau Services.
On January 23, 2013, respondent filed a motion to recon-
sider the sanction entered against him on September 27, 2012.
Respondent set the hearing on his motion to reconsider for
January 28, 2013. The formal charges state that in his motion
to reconsider, respondent incorrectly stated that his office
address was at the location on 130th Street in Omaha.
The formal charges state that on January 28, 2013, respond­
ent filed his affidavit with the county court in which he
alleged that the first attorney “‘has continually failed and/or
refused to send proper and timely notices of hearings set by
Nebraska Advance Sheets
132 287 NEBRASKA REPORTS
[Credit Bureau Services] to [respondent].’” Respondent further
alleged that the first attorney “‘abuses the court system and
good faith certifications, claiming that she has sent proper and
timely notice to [respondent], when she has not sent proper
and timely notices to [respondent].’” On March 1, the court
issued an order denying respondent’s motion to reconsider the
sanction order.
The county court issued an order and notice of pretrial hear-
ing, setting the pretrial hearing for April 4, 2013. According
to the formal charges, the order stated, “‘Failure to appear
will cause a default judgment to be entered against you, or
any other final disposition that is just and proper. YOU MUST
ATTEND THIS HEARING.’” On March 18, the first attorney
mailed a copy of the order and notice of pretrial hearing to
respondent at the 130th Street location. Respondent failed to
attend the pretrial hearing on April 4, and the default judgment
was entered against him.
On April 19, 2013, respondent filed a motion to reconsider
the default judgment. Respondent set the motion for hearing on
May 9. The formal charges state the in the motion, respond­
ent incorrectly stated that his office address was at the 130th
Street location.
At the hearing on May 9, 2013, respondent offered his affi-
davit in support of his motion to reconsider the default judg-
ment entered against him in April. According to the formal
charges, respondent stated in his affidavit:
“‘[Respondent] believes that [the first attorney’s] pat-
tern and intentions are quite clear that while she certi-
fies to the Court that she mails notice of all hearings
to [respond­nt] via United States Mail, postage pre-
e
paid, she does not in fact mail said notice to [respond­
ent], allowing her unfair advantage, and further costing
both parties more time and expense; and further cost-
ing this Court more time and attention to unnecessary
hearings/issues.’”
The formal charges state that respondent had no evidence to
support his allegation that the first attorney falsified the cer-
tificates of service and that she did not in fact mail the notices
to respondent.
Nebraska Advance Sheets
STATE EX REL. COUNSEL FOR DIS. v. PFANSTIEL 133
Cite as 287 Neb. 129
During the hearing on May 9, 2013, respondent disclosed
that he had filed a disciplinary grievance against the first
attorney.
The formal charges allege that respondent’s actions con-
stitute violations of his oath of office as an attorney as pro-
vided by Nebraska statute § 7-104, disciplinary rule § 3-318,
and professional conduct rules §§ 3-503.3(a) and 3-508.4(a)
and (d).
ANALYSIS
Section 3-313, which is a component of our rules governing
procedures regarding attorney discipline, provides in perti-
nent part:
(B) At any time after the Clerk has entered a Formal
Charge against a Respondent on the docket of the Court,
the Respondent may file with the Clerk a conditional
admission of the Formal Charge in exchange for a stated
form of consent judgment of discipline as to all or
part of the Formal Charge pending against him or her
as determined to be appropriate by the Counsel for
Discipline or any member appointed to prosecute on
behalf of the Counsel for Discipline; such conditional
admission is subject to approval by the Court. The con-
ditional admission shall include a written statement that
the Respondent knowingly admits or knowingly does
not challenge or contest the truth of the matter or mat-
ters conditionally admitted and waives all proceedings
against him or her in connection therewith. If a tendered
conditional admission is not finally approved as above
provided, it may not be used as evidence against the
Respondent in any way.
Pursuant to § 3-313, and given the conditional admis-
sion, we find that respondent knowingly does not challenge
or contest the matters conditionally admitted. The charges
against respond­nt essentially allege that respondent failed
e
to advise the first attorney of his change of address, but
nevertheless, complained to the court and the Counsel for
Discipline that the first attorney was falsifying her certifi-
cates of service. We determine that by his admitted conduct,
Nebraska Advance Sheets
134 287 NEBRASKA REPORTS
respondent violated disciplinary rule § 3-318, conduct rules
§§ 3-503.3(a) and 3-508.4(a) and (d), and his oath of office as
an attorney licensed to practice law in the State of Nebraska.
Respondent has waived all additional proceedings against him
in connection herewith. Upon due consideration, the court
approves the conditional admission and enters the orders as
indicated below.
CONCLUSION
Respondent is publically reprimanded. Respondent is
directed to pay costs and expenses in accordance with Neb.
Ct. R. §§ 3-310(P) and 3-323(B) within 60 days after the
order imposing costs and expenses, if any, is entered by
the court.
Judgment of public reprimand.