State ex rel. Counsel for Dis. v. Pearson , 310 Neb. 256 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/19/2021 09:08 AM CST
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310 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. PEARSON
Cite as 310 Neb. 256State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Gary R. Pearson, respondent.
___ N.W.2d ___
Filed October 1, 2021. No. S-20-741.
Original action. Judgment of suspension.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
INTRODUCTION
On October 13, 2020, formal charges containing three counts
were filed by the office of the Counsel for Discipline of the
Nebraska Supreme Court, the relator, against the respondent,
Gary R. Pearson. The respondent filed an answer to the formal
charges on November 23 and an amended answer on December
21. A referee was appointed on December 4. On February 19,
2021, the relator filed amended formal charges consisting of
four counts, to which the respondent filed an answer on March
1. The referee conducted a hearing on April 1.
The referee filed a report on July 6, 2021. With respect to the
four charges, the referee concluded that through the respond­
ent’s conduct, he had breached the following provisions of
the Nebraska Rules of Professional Conduct: Neb. Ct. R. of
Prof. Cond. §§ 3-501.1 (rev. 2017) (competence), 3-501.5(a)
(charging unreasonable fee), 3-501.15 (safekeeping funds),
3-503.3(a)(1) (rev. 2016) (candor toward tribunal); 3-508.1(a)
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STATE EX REL. COUNSEL FOR DIS. v. PEARSON
Cite as 310 Neb. 256(false statements in disciplinary matters), and 3-508.4(a) and
(c) (rev. 2016) (misconduct). The referee further found that
the respondent 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 dis-
cipline to be imposed, the referee recommended suspension
of the respondent’s license to practice law for a period of
at least 1 year and up to 2 years. Neither the relator nor the
respondent filed exceptions to the referee’s report. The rela-
tor moved for judgment on the pleadings under Neb. Ct. R.
§ 3-310(L) (rev. 2019) of the disciplinary rules. We grant the
motion for judgment on the pleadings and impose discipline as
indicated below.
FACTS
The respondent was admitted to the practice of law in the
State of Nebraska on July 2, 1976. At all times relevant to these
proceedings, he has practiced law in Lincoln, Nebraska.
The substance of the referee’s findings may be summarized
as follows: The respondent practiced law since 1976, including
handling estate matters. The violations arise from the respond­
ent’s charging and collecting excessive fees in several estate
matters over a 2-year period and, in at least one instance, mak-
ing false statements in court pleadings and to the relator related
to the excessive fees. He also improperly maintained his trust
account. Most facts are not in dispute in this case and were
stipulated by the respondent and the relator at trial, or acknowl-
edged in the respondent’s testimony.
The referee held a hearing at which the respondent testified
and evidence was adduced. In a report filed July 6, 2021, the
referee found that by clear and convincing evidence, through
the respondent’s conduct, he had breached provisions of the
Nebraska Rules of Professional Conduct as follows:
•  With respect to count I, the “Wysong Matter,” the respond­
ent engaged in misconduct under § 3-508.4(a) and (c) by
violating §§ 3-501.1 (competence), 3-501.5(a) (unreasonable
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STATE EX REL. COUNSEL FOR DIS. v. PEARSON
Cite as 310 Neb. 256fee), 3-503.3(a)(1) (candor toward tribunal), and 3-508.1(a)
(false statements in disciplinary matter).
•  With respect to count II, the “Truax Matter,” the respondent
engaged in misconduct under § 3-508.4(a) by charging and
collecting an unreasonable fee in violation of § 3-501.5(a).
•  With respect to count III, the “Jaunzemis Matter,” the
respondent engaged in misconduct under § 3-508.4(a) and
(c) by charging and collecting an unreasonable fee under
§ 3-501.5(a).
•  With respect to count IV, the “Trust Account Matter,” the
respondent engaged in misconduct under § 3-508.4(a) by not
safekeeping client funds in violation of § 3-501.15(b).
The referee further found that, with regard to each of the
counts enumerated above, the respondent had violated his oath
of office as an attorney licensed to practice law in the State of
Nebraska. See § 7-104.
With respect to the discipline to be imposed, the referee
recommended suspension of the respondent’s license to prac-
tice law for a period of 1 to 2 years. The referee noted in the
report that the respondent had no prior instances of misconduct
or discipline, but found that the respondent “was not candid
with the Referee.” With respect to the respondent’s attitude,
the referee found that although the respondent “admitted many
of the allegations, he did so reluctantly, tended to minimize or
explain away his conduct as error, oversight or carelessness.”
The referee report acknowledges that the respondent was not
charged with misappropriation of client funds in the “Wysong
Matter,” but “[t]he record, however, would amply support such
a charge had [the relator] seen fit to bring one.”
In mitigation, the referee noted that the respondent was 72
to 73 years old at the time of trial and is an honorably dis-
charged veteran of the U.S. Army who served as a combat
infantry medic during the Vietnam War. The respondent has
been a member in good standing with the Nebraska State Bar
Association since 1976, with no record of prior disciplinary
actions against him. The respondent offered eight letters of
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STATE EX REL. COUNSEL FOR DIS. v. PEARSON
Cite as 310 Neb. 256support attesting to his good character. He was responsive
and cooperative with the relator throughout the disciplinary
investigation.
ANALYSIS
A proceeding to discipline an attorney is a trial de novo
on the record. State ex rel. Counsel for Dis. v. Wolfe, 301
Neb. 117, 918 N.W.2d 244 (2018). To sustain a charge in a
disciplinary proceeding against an attorney, a charge must be
established by clear and convincing evidence. Id. Violation of
a disciplinary rule concerning the practice of law is a ground
for discipline. Id.Based on the record and the undisputed findings of the ref-
eree, we find that the above-referenced facts have been estab-
lished by clear and convincing evidence. Based on the forego-
ing evidence, we conclude that by virtue of the respondent’s
conduct, the respondent has violated §§ 3-501.1, 3-501.5(a),
3-501.15, 3-503.3(a)(1), 3-508.1(a), and 3-508.4(a) and (c). We
specifically conclude that the respondent has violated his oath
of office as an attorney, see § 7-104. Accordingly, we grant the
relator’s motion for judgment on the pleadings.
We have stated that the basic issues in a disciplinary pro-
ceeding against a lawyer are whether discipline should be
imposed and, if so, the type of discipline appropriate under
the circumstances. State ex rel. Counsel for Dis. v. Wolfe,
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 designate; or
(4) Censure and reprimand by the Court; or
(5) Temporary suspension by the Court; or
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STATE EX REL. COUNSEL FOR DIS. v. PEARSON
Cite as 310 Neb. 256(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.
See, also, Neb. Ct. R. § 3-310(N) (rev. 2019).
With respect to the imposition of attorney discipline in an
individual case, we evaluate each attorney discipline case in
light of its particular facts and circumstances. Counsel for Dis.
v. Wolfe, supra. For purposes of determining the proper dis-
cipline of an attorney, this court considers the attorney’s acts
both underlying the events of the case and throughout the pro-
ceeding, 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, this 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 offender generally, and (6) the
­offender’s present or future fitness to continue in the practice
of law. Id.The evidence in the present case establishes there were four
separate grievances involving several types of misconduct,
including incompetence, charging an unreasonable fee, con-
cealing unreasonable fees from clients, making false statements
in court pleadings and to the relator, and maintaining personal
funds in a client trust account.
With respect to the discipline to be imposed, the referee rec-
ommended suspension of the respondent’s license to practice
law for a period of 1 to 2 years. No exceptions have been taken
to this recommendation.
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 the
range of the referee’s recommendation is appropriate, and we
hereby impose an 18-month suspension.
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STATE EX REL. COUNSEL FOR DIS. v. PEARSON
Cite as 310 Neb. 256The respondent shall comply with Neb. Ct. R. § 3-316 (rev.
2014), and upon failure to do so, he shall be subject to punish-
ment for contempt of this court. The respondent is directed
to pay costs and expenses in accordance with Neb. Rev. Stat.
§§ 7-114 and 7-115 (Reissue 2012), § 3-310(P), and Neb. Ct.
R. § 3-323(B) within 60 days after an order imposing costs and
expenses, if any, is entered by this court.
Judgment of suspension.