State ex rel. Counsel for Dis. v. Council ( 2014 )

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STATE EX REL. COUNSEL FOR DIS. v. COUNCIL 33
Cite as 289 Neb. 33
CONCLUSION
We reverse the district court’s dismissal of McDougle’s peti-
tion for review and remand the cause for further proceedings.
R eversed and remanded for
further proceedings.
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator, v.
Brenda J. Council, respondent.
___ N.W.2d ___
Filed September 12, 2014. No. S-13-379.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. ____. The 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.
3. Disciplinary Proceedings: Appeal and Error. When no exceptions to the ref-
eree’s findings of fact are filed, the Nebraska Supreme Court may consider the
referee’s findings final and conclusive.
4. Disciplinary Proceedings. 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 offender generally, and (6)
the offender’s present or future fitness to continue in the practice of law.
5. ____. In determining the proper discipline of an attorney, 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.
6. ____. Each attorney discipline case must be evaluated individually in light of its
particular facts and circumstances. In addition, the propriety of a sanction must
be considered with reference to the sanctions imposed in prior similar cases.
7. ____. Multiple acts of attorney misconduct are deserving of more serious sanc-
tions and are distinguishable from isolated incidents.
8. Disciplinary Proceedings: Presumptions. In an attorney discipline case, miti-
gating factors may overcome the presumption of disbarment in misappropriation
and commingling cases where such factors are extraordinary and substantially
outweigh any aggravating circumstances. Absent such mitigating circumstances,
the appropriate sanction is disbarment.
Original action. Judgment of disbarment.
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John W. Steele, Assistant Counsel for Discipline, for relator.
Vince Powers, of Vince Powers & Associates, for
respondent.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Cassel, JJ.
P er Curiam.
I. NATURE OF CASE
The Counsel for Discipline of the Nebraska Supreme Court,
relator, brought formal charges against Brenda J. Council,
respondent, based on the conduct underlying her convictions
for abuse of public records and wire fraud. A court-appointed
referee found that respondent had violated her oath of office
as an attorney and Neb. Ct. R. of Prof. Cond. § 3-508.4
(misconduct) and recommended that she be suspended from
the practice of law for 1 year, followed by 2 years’ proba-
tion. Relator takes exception to the recommended sanction as
being too lenient. We find that because respondent’s miscon-
duct involved misappropriation, misrepresentation, the viola-
tion of Nebraska law, and abuse of public office, she should
be disbarred.
II. FACTS
In 1977, respondent was admitted to practice law in Nebraska.
Between 1982 and 2005, she was elected or appointed to vari-
ous public offices, including the Omaha Board of Education,
the Omaha City Council, and the Commission of Industrial
Relations. In 2005, respondent went into private practice in
Omaha, Nebraska. She maintained this practice at all times
relevant to these disciplinary proceedings.
Between 2009 and 2013, respondent served as a state sena-
tor for the 11th legislative district. After her initial election,
her campaign committee, designated the “Committee to Elect
Brenda Council” (campaign committee), remained in existence.
The campaign committee had a separate bank account for
which respondent held a debit card.
Between January 2010 and July 2012, respondent took
out more than $63,000 in cash advances using the campaign
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committee’s debit card and spent those funds for gambling.
She also made various deposits into the campaign commit-
tee’s account in an attempt to “repay those campaign funds.”
Respondent did not report the withdrawals or the subsequent
deposits on her campaign statements filed with the Nebraska
Accountability and Disclosure Commission (NADC).
For failing to report the cash advances and deposits and for
filing false reports with the NADC, respondent was charged
with two counts of abuse of public records (Class II misde-
meanor), pursuant to Neb. Rev. Stat. § 28-911(1)(d) (Reissue
2008). She pled guilty to these charges. The county court found
her guilty and ordered her to pay a fine of $500.
In April 2013, relator brought formal charges against
respond­ nt. Relator alleged that respondent’s conduct surround-
e
ing the misuse of campaign funds violated respondent’s oath of
office as an attorney and § 3-508.4 (misconduct). Respondent
admitted to the charges, but she affirmatively alleged that she
had repaid “the majority of the funds” and was “undergoing
Counseling for her gambling addictions.”
While the disciplinary proceedings were pending, respond­
ent was charged in federal district court with wire fraud, a
felony, under 18 U.S.C. § 1343 (2012) for her misuse of cam-
paign funds. Pursuant to a plea agreement, she entered a plea
of guilty and was sentenced to 3 years’ probation, a $500 fine,
and a $100 “felony assessment.”
After learning of respondent’s conviction for wire fraud,
the Committee on Inquiry for the Second Disciplinary District
requested that we temporarily suspend respondent from the
practice of law in Nebraska pending resolution of the disci-
plinary proceedings. Respondent voluntarily consented to the
entry of an order imposing a temporary suspension, which we
entered on September 25, 2013.
Respondent consented to and relator filed additional formal
charges that made reference to respondent’s conviction for wire
fraud. As before, relator alleged that respondent’s conduct sur-
rounding the misuse of campaign funds violated respondent’s
oath of office as an attorney and § 3-508.4 (misconduct).
Respondent again admitted the allegations.
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On December 18, 2013, a hearing was held before a court-
appointed referee. Based on the evidence adduced at the hear-
ing, the referee found that respondent had violated her oath of
office as an attorney and § 3-508.4 (misconduct). The referee
recommended that respondent be suspended for 1 year, with
credit for the length of her temporary suspension. He also rec-
ommended that following the period of suspension, respondent
should complete 2 years’ probation, the terms of which would
include yearly audits of her trust account.
The referee explicitly considered and dismissed disbarment
as an appropriate sanction for respondent’s violations, because
(1) her acts of misconduct “have had no impact upon the
Respondent’s service to the legal profession,” (2) she had
no prior violations, (3) her actions following the misconduct
“mitigate[d] the seriousness of the misconduct,” (4) “[s]ociety
is addressing the moral grounds of the misconduct,” and (5)
she is fit to continue practicing law. The referee opined that
“we all lose if our sanction prevents the Respondent from serv-
ing her clients in her community as an attorney.”
III. STANDARD OF REVIEW
[1] A proceeding to discipline an attorney is a trial de novo
on the record.1
IV. EXCEPTIONS
Neither party takes exception to the referee’s factual find-
ings. However, relator takes exception to the referee’s recom-
mended sanction.
V. ANALYSIS
[2] The basic issues in a disciplinary proceeding against an
attorney are whether we should impose discipline and, if so,
the appropriate discipline under the circumstances.2 We address
each issue in turn.
1
State ex rel. Counsel for Dis. v. Cording, 285 Neb. 146, 825 N.W.2d 792
(2013).
2
State ex rel. Counsel for Dis. v. Palik, 284 Neb. 353, 820 N.W.2d 862
(2012).
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1. Grounds for Discipline
[3] The referee determined that respondent had violated her
oath of office as an attorney and § 3-508.4 (misconduct). As
noted previously, neither party took exception to that finding
or any other factual finding in the referee’s report. When no
exceptions to the referee’s findings of fact are filed, we may
consider the referee’s findings final and conclusive.3 We do so
in the instant case.
Based upon the undisputed findings of fact in the referee’s
report, we conclude that the formal charges and the additional
formal charges against respondent are supported by clear and
convincing evidence. We specifically conclude that by her con-
duct, respondent violated her oath of office as an attorney and
§ 3-508.4 (misconduct). We limit the remainder of our discus-
sion to the appropriate discipline.
2. Appropriate Discipline
The referee recommended that respondent be suspended
from the practice of law in Nebraska for 1 year, with credit
for the length of her temporary suspension, and that following
the period of suspension, respondent should complete 2 years’
probation. Respondent argues that relator waived any objec-
tion to this recommendation, because at the hearing before the
referee, relator did not object to respondent’s arguments for
a 1-year suspension. We do not agree that relator waived the
right to object.
Relator did not waive the right to object to the referee’s
recommendation, because relator did not have the opportunity
to object to that recommendation at the hearing. At the time
of the hearing, the referee had not made a recommendation as
to what sanction respondent should receive. Relator could not,
by his failure to object to respondent’s arguments for a 1-year
suspension, waive the right to take exception to the referee’s
recommendation, which at that time, had not yet been made.
And we point out that this court is not required to accept
the recommendations of the referee as to the discipline to be
3
Cording, supra note 1.
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imposed.4 Our consideration of the discipline to be imposed is
de novo.5
Having settled this preliminary matter regarding relator’s
exception, we now proceed to determine the appropriate sanc-
tion for respondent’s misconduct. Under Neb. Ct. R. § 3-304(A),
we may impose one or more of the following disciplinary sanc-
tions: “(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 suspen-
sion by the Court.”
[4,5] 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 repu-
tation 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.6 In
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.7
[6] Each attorney discipline case must be evaluated indi-
vidually in light of its particular facts and circumstances.8 In
addition, the propriety of a sanction must be considered with
reference to the sanctions imposed in prior similar cases.9
(a) Respondent’s Conduct
Respondent’s actions are not disputed. Over the course
of approximately 21⁄2 years, she intentionally and repeatedly
4
See State ex rel. Counsel for Dis. v. Switzer, 275 Neb. 881, 750 N.W.2d
681 (2008).
5
See id.
6
Palik, supra note 2.
7
See id. at 359, 820 N.W.2d at 867.
8
State ex rel. Counsel for Dis. v. Beltzer, 284 Neb. 28, 815 N.W.2d 862
(2012).
9
Id.
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used the debit card linked to her campaign committee’s bank
account to take out cash advances for the purpose of gam-
bling. After using the funds to gamble, she would “replace”
the money that she had withdrawn by depositing money back
into the campaign committee’s bank account. Respondent did
not report the withdrawals or the subsequent deposits to her
campaign treasurer or the NADC. These are criminal actions,
for which respondent was prosecuted in both state court and
federal court.
Three particular aspects of respondent’s actions are trouble-
some: (1) She misappropriated funds that others had entrusted
to her for a specific purpose; (2) to conceal her actions, she
engaged in misrepresentation and violated Nebraska law; and
(3) her misconduct was intentional and recurring.
(i) Misappropriation and
Conversion of Funds
Respondent’s unauthorized use of campaign funds for her
own purpose constituted misappropriation and conversion. For
purposes of attorney discipline proceedings, “misappropriation”
is defined as “any unauthorized use” of 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 benefit therefrom.”10
It is a “serious offense involving moral turpitude” and “‘vio-
lates basic notions of honesty and endangers public confidence
in the legal profession.’”11 “[C]onversion” is the “misappro-
priation” of another’s property “to the attorney’s own use or
some other improper use.”12
Respondent withdrew more than $63,000 from the campaign
committee’s bank account for an unauthorized and improper
use—gambling. The funds which respondent withdrew for
gambling were legally held by her campaign committee and
10
See State ex rel. Counsel for Dis. v. Carter, 282 Neb. 596, 606, 808
N.W.2d 342, 351 (2011).
11
See State ex rel. NSBA v. Veith, 238 Neb. 239, 247, 470 N.W.2d 549, 555
(1991).
12
See id. at 245, 470 N.W.2d at 554 (emphasis in original).
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had been contributed to the committee for the explicit purpose
of supporting her candidacy. The evidence shows that respond­
ent withdrew and used those funds with the knowledge that she
was using “campaign funds” for a purpose other than that for
which they were intended. This constituted misappropriation
and conversion.
Respondent’s later repayment of the campaign funds does
not excuse her misappropriation and conversion of those funds.
“A restitution of funds wrongfully converted by a lawyer,
after he [or she] is faced with legal accountability, is not an
exoneration of his [or her] professional misconduct.”13 And
the fact that the campaign committee ultimately did not suf-
fer a financial loss is not a “reason for imposing a less severe
sanction.”14 We cannot overlook respondent’s misappropriation
and conversion of campaign funds simply because she later
repaid those funds.
Respondent emphasizes that “the money that was gambled
was not clients’ money but rather campaign contributions.”15
But we do not see the significance of this fact. In the case of
both campaign contributions and client trust funds, individuals
entrust their money to another for a specific, mutually under-
stood purpose. In either case, using the funds for other than the
specified purpose is a misuse and misappropriation of those
funds. Given these similarities, we see no meaningful distinc-
tion between respondent’s misappropriation of campaign funds
and the misappropriation of client trust funds. Indeed, we have
previously rejected the distinction between client and nonclient
funds in cases of misappropriation.16
Neither is it significant that respondent’s misconduct
occurred outside of her representation of clients. “[A] lawyer
13
State ex rel. Nebraska State Bar Assn. v. Bremers, 200 Neb. 481, 484, 264
N.W.2d 194, 197 (1978).
14
See Carter, supra note 10, 282 Neb. at 607, 808 N.W.2d at 351.
15
Brief for respondent at 24.
16
See, State ex rel. Counsel for Dis. v. Bouda, 282 Neb. 902, 806 N.W.2d
879 (2011); State ex rel. NSBA v. Rosno, 245 Neb. 365, 513 N.W.2d 302
(1994); State ex rel. Nebraska State Bar Assn. v. McConnell, 210 Neb. 98,
313 N.W.2d 241 (1981).
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is bound by the [rules governing the legal profession] in every
capacity in which the lawyer acts, whether he [or she] is acting
as an attorney or not.”17
(ii) Misrepresentation and
Violation of State Law
Respondent actively concealed her misappropriation
and conversion of campaign funds. Under Neb. Rev. Stat.
§ 49-1455(1)(b) (Reissue 2010), the campaign statement of
a committee must disclose “the total amount of expenditures
made during the period covered by the campaign statement.”
In repeated violation of this statute, when preparing and filing
campaign statements, respondent did not report her personal
use of funds from the campaign committee’s bank account.
Respondent testified that she knew it was “wrong” not to
report the expenditures for gambling but that she feared com-
pliance with the reporting requirements “would reveal . . . that
[she] was gambling.” Because of this fear, respondent delib-
erately remained silent as to the cash advances, despite her
legal duty to disclose all campaign expenditures.18 Under such
circumstances, her silence was equivalent to false representa-
tion.19 “‘[A] partial and fragmentary disclosure, accompanied
with the wil[l]ful concealment of material and qualifying facts,
is not a true statement, and is as much a fraud as an actual mis-
representation, which, in effect, it is.’”20
In addition to being fraudulent in their omissions, the cam-
paign reports filed by respondent also contained affirmative
misrepresentations. Respondent admitted that when she filed
the campaign reports with the NADC, she knew they “didn’t
reflect deposits and withdrawals that were made.” Nonetheless,
when she submitted the campaign reports, she gave her assur-
ance that, to the best of her knowledge, the information repre-
sented therein was true. By doing so, respondent deliberately
17
State ex rel. Nebraska State Bar Assn. v. Michaelis, 210 Neb. 545, 560,
316 N.W.2d 46, 54 (1982).
18
See § 49-1455(1)(b).
19
See State ex rel. NSBA v. Douglas, 227 Neb. 1, 416 N.W.2d 515 (1987).
20
Id. at 25, 416 N.W.2d at 530.
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misrepresented that she had no knowledge of unreported
expenditures when she actually did and, effectively, engaged
in fraud. “‘[O]ne who responds to an inquiry is guilty of fraud
if he [or she] denies all knowledge of a fact which he [or she]
knows to exist.’”21
(iii) Intentional and
Recurring Conduct
The evidence shows that respondent’s misconduct was inten-
tional and recurring. By respondent’s own admission, her use
of the debit card linked to her campaign committee’s bank
account was intentional and part of a routine. Indeed, she used
the debit card to obtain cash advances for gambling over 100
times. She testified that she intended “to use campaign funds”
when she made the cash advances and that she knew the money
should not have been used for gambling.
As for respondent’s misrepresentations to the NADC, she
testified that she made a conscious decision not to disclose the
cash advances. She filed three separate reports with the NADC,
none of which disclosed her withdrawal of campaign funds or
the subsequent deposits.
(iv) Conclusion as to
Respondent’s Conduct
Respondent’s misconduct was intentional and repeated and
occurred over the course of 21⁄2 years. She misappropriated
and converted funds entrusted to her by others for a specific
purpose and then attempted to conceal her actions through mis-
representation and in violation of Nebraska law.
(b) Aggravating and Mitigating
Circumstances
(i) Aggravators
The fact that respondent engaged in the aforementioned
misconduct while holding elected public office greatly aggra-
vates her misconduct. Like any public officer, respondent was
21
Id. at 26, 416 N.W.2d at 531.
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a “‘fiduciary toward the public.’”22 She was “charged with
a public trust.”23 And as a lawyer holding public office, she
“assume[d] legal responsibilities going beyond those of other
citizens.”24 By misappropriating the funds entrusted to her as
a public officer and covering up that misappropriation with
misrepresentations, respondent violated the public trust and
abused her office. Such abuse of public office by an attor-
ney “can suggest an inability to fulfill the professional role
of lawyers.”25
Respondent’s active concealment of her misappropriation
of campaign funds is an additional aggravating factor.26 One
of the “essential eligibility requirements for admission to the
practice of law in Nebraska” is “‘[t]he ability to conduct
oneself with a high degree of honesty, integrity, and trust-
worthiness in all professional relationships and with respect
to all legal obligations.’”27 As such, this court “does not look
kindly upon acts which call into question an attorney’s honesty
and trustworthiness.”28
[7] The number of individual acts of misconduct commit-
ted by respondent aggravates her behavior. Multiple acts of
attorney misconduct are deserving of more serious sanctions
and are distinguishable from isolated incidents.29 Respondent
used the debit card linked to her campaign committee’s bank
account over 100 times to obtain funds for gambling. Each of
these withdrawals was a distinct misappropriation and conver-
sion of campaign funds. Respondent also filed three separate
campaign reports with the NADC, each of which was an act
of misrepresentation.
22
See id.
23
See id. at 27, 416 N.W.2d at 531.
24
See § 3-508.4, comment 5.
25
See id.
26
See Carter, supra note 10.
27
State ex rel. Counsel for Dis. v. Crawford, 285 Neb. 321, 367, 827 N.W.2d
214, 246 (2013) (alteration in original).
28
See id.
29
State ex rel. NSBA v. Malcom, 252 Neb. 263, 561 N.W.2d 237 (1997).
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(ii) Mitigators
Respondent admitted to her misconduct and took respon-
sibility for her actions. She pleaded guilty to the criminal
charges in both state court and federal court, and admitted
the allegations in the formal charges and additional formal
charges. She was cooperative throughout these proceedings
and demonstrated remorse. All of these are relevant mitigat-
ing factors.30
Respondent has an extensive history of political, commu-
nity, and volunteer service. At the referee hearing, several
individuals attested to respondent’s service to the community,
including a member of the Public Service Commission, a
former mayor of Omaha, a former president of the Omaha
School Board, and the executive director of the Peter Kiewit
Foundation. Respondent characterized her legal practice as
providing legal services in an area where “[t]here are not a
lot of others doing it.” She testified that she wants to “con-
tinue to be of service, particularly to the residents of North
Omaha.” “Continuing commitment to the legal profession and
the community” is a mitigating factor in an attorney disci-
pline case.31
The fact that respondent is actively seeking help for her
gambling addiction is a mitigating factor.32 Respondent testified
that through continued participation in Gamblers Anonymous,
she was “confident” that she would “refrain from gambling” in
the future.
(c) Sanctions Imposed
in Similar Cases
This court has frequently imposed the sanction of disbar-
ment “in cases of embezzlement or like defalcation by lawyers,
and that sanction has not depended upon whether the funds
30
See, State ex rel. Counsel for Dis. v. Pierson, 281 Neb. 673, 798 N.W.2d
580 (2011); State ex rel. Counsel for Dis. v. Petersen, 271 Neb. 262, 710
N.W.2d 646 (2006).
31
See State ex rel. Counsel for Dis. v. Swan, 277 Neb. 728, 737, 764 N.W.2d
641, 647 (2009).
32
See State ex rel. Counsel for Dis. v. Downey, 276 Neb. 749, 757 N.W.2d
381 (2008).
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taken were those of a client.”33 We have disbarred numerous
attorneys for the misappropriation and conversion of client
funds as well as nonclient funds.34
[8] However, we have not “adopted a ‘bright line rule’ that
misappropriation of funds will always result in disbarment.”35
Mitigating factors may “overcome the presumption of disbar-
ment in misappropriation and commingling cases” where they
are “extraordinary” and “substantially outweigh” any aggravat-
ing circumstances.36 Absent such mitigating circumstances, the
appropriate sanction is disbarment.37
Of the cases in which misappropriation and conversion did
not result in disbarment, a majority of those were from the
1980’s.38 In 1991, however, we recognized and moved away
from a “trend in recent years toward lighter sanctions” for
misappropriation.39
Since 1991, we have ordered disbarment in all cases involv-
ing the misappropriation of client funds except two.40 In State
33
See McConnell, supra note 16, 210 Neb. at 100, 313 N.W.2d at 242.
34
See, Bouda, supra note 16 (funds of employer); Carter, supra note 10
(client funds); State ex rel. Counsel for Dis. v. Reilly, 271 Neb. 465,
712 N.W.2d 278 (2006) (client funds); Malcom, supra note 29 (client
funds); Rosno, supra note 16 (funds of association for which attorney was
treasurer); State ex rel. NSBA v. Radosevich, 243 Neb. 625, 501 N.W.2d
308 (1993) (client funds); Veith, supra note 11 (client funds); McConnell,
supra note 16 (local bar association funds); Bremers, supra note 13 (client
funds); State ex rel. Nebraska State Bar Assn. v. Ledwith, 197 Neb. 572,
250 N.W.2d 230 (1977) (funds of estate held by attorney as executor).
35
See State ex rel. Counsel for Dis. v. Achola, 266 Neb. 808, 816, 669
N.W.2d 649, 656 (2003).
36
See Malcom, supra note 29, 252 Neb. at 272, 561 N.W.2d at 243.
37
See id.
38
See, State ex rel. NSBA v. Fitzgerald, 227 Neb. 90, 416 N.W.2d 28 (1987);
State ex rel. NSBA v. Miller, 225 Neb. 261, 404 N.W.2d 40 (1987); State
ex rel. NSBA v. Tomek, 214 Neb. 220, 333 N.W.2d 409 (1983).
39
See Veith, supra note 11, 238 Neb. at 251, 470 N.W.2d at 558.
40
See, Beltzer, supra note 8 (suspension); Carter, supra note 10 (disbarment);
Reilly, supra note 34 (disbarment); Malcom, supra note 29 (disbarment);
State ex rel. NSBA v. Gleason, 248 Neb. 1003, 540 N.W.2d 359 (1995)
(suspension); Radosevich, supra note 34 (disbarment); Veith, supra note
11 (disbarment).
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ex rel. NSBA v. Gleason,41 an attorney misappropriated an
unspecified amount of client funds for his personal use. We
concluded that an indefinite suspension was appropriate,
because the attorney suffered from “dual psychological ill-
nesses” and had self-reported his misappropriations to the rela-
tor.42 In State ex rel. Counsel for Dis. v. Beltzer,43 we ordered
a 1-year suspension where the attorney’s misappropriation of
client trust funds involved no concealment and was an isolated
event, he had no disciplinary record, and the record included
multiple letters of support.
The instant case is distinguishable from both of these cases
in which we ordered suspension for the misappropriation of
client funds. Neither Gleason44 nor Beltzer45 involved the
abuse of public office. Respondent did not self-report, as in
Gleason. And, far from being an isolated event as in Beltzer,
respond­ ent’s misconduct spanned 21⁄2 years and involved
numerous, distinct acts of misappropriation. Respondent also
engaged in misrepresentation to conceal her misconduct,
unlike the attorney in Beltzer.
Respondent’s misconduct involved the filing of false cam-
paign reports with the NADC so as to avoid disclosing her
misappropriation of campaign funds. In prior discipline cases,
comparable actions have been considered only in combination
with other acts of misconduct.46
In State ex rel. Counsel for Dis. v. Wintroub,47 we disbarred
an attorney for evading government reporting requirements
and committing ethical violations related to the representa-
tion of clients. In particular, he (1) was involved in “illegally
structuring transactions to avoid federal bank reporting laws,”
41
Gleason, supra note 40.
42
See id. at 1008, 540 N.W.2d at 363.
43
Beltzer, supra note 8.
44
Gleason, supra note 40.
45
Beltzer, supra note 8.
46
See, State ex rel. Counsel for Dis. v. Wintroub, 277 Neb. 787, 765 N.W.2d
482 (2009); Douglas, supra note 19.
47
Wintroub, supra note 46.
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for which he had been convicted of a federal felony; (2)
failed to diligently represent a client; (3) mishandled client
trust funds; (4) accepted fees from a client during suspen-
sion; and (5) acted as a collection agent during suspension.48
In ordering disbarment, we explained that the attorney had an
“obligation to uphold the laws of the United States” and that
his felony conviction thus “violate[d] basic notions of honesty
and endanger[ed] public confidence in the legal profession.”49
We also stated that his other acts of misconduct demonstrated
a “continued indifference to the rule of law” and a “consistent
pattern of ethical violations.”50
In State ex rel. NSBA v. Douglas,51 we suspended a former
attorney general for 4 years for multiple acts of misconduct,
including the filing of a false statement of financial interest
with the NADC. The other acts of misconduct included (1)
engaging in business activities involving deceit and misrepre-
sentation, (2) failing to fully disclose his compensation from
those business activities to a special assistant attorney general,
(3) failing to disclose conflicts of interest arising from those
business activities, and (4) failing to disqualify himself from
investigations in which he had a conflict of interest.52
The instant case is more comparable to Wintroub53 than to
Douglas.54 Although both Wintroub and Douglas involved the
failure to comply with reporting requirements, only Wintroub
also involved the misuse of client funds.
(d) Conclusion as to Discipline
Respondent engaged in the intentional and repeated mis-
appropriation of campaign funds for her personal use and
then employed deception and misrepresentation to conceal her
48
See id. at 788, 765 N.W.2d at 485.
49
Id. at 804, 765 N.W.2d at 495.
50
Id.
51
Douglas, supra note 19.
52
See id.
53
Wintroub, supra note 46.
54
Douglas, supra note 19.
Nebraska Advance Sheets
48 289 NEBRASKA REPORTS
misconduct. On three separate campaign reports, she failed
to report her personal use of funds from the campaign com-
mittee’s bank account, in violation of § 49-1455(1)(b). She
prepared and filed reports which were fraudulent in their
omission and affirmatively misrepresented that, to the best of
her knowledge, the information represented in the reports was
true. For these actions, respondent was convicted of two mis-
demeanors and a federal felony.
The referee determined that “Respondent’s remorse and
acknowledging her responsibility and attacking her addiction
substantially mitigate[d] the seriousness of the misconduct.”
He also placed great emphasis on respondent’s repayment of
the campaign funds and “her commitment to service, her pas-
sion and her dedication to address the most difficult issues
which face our country today.” Consequently, the referee rec-
ommended a 1-year suspension instead of disbarment.
But mitigating factors can “overcome the presumption of
disbarment” in cases involving misappropriation only when
they are “extraordinary” and also “substantially outweigh” the
aggravating circumstances.55 After considering all the circum-
stances of respondent’s misconduct, we cannot conclude that
there are mitigating circumstances which would overcome the
presumption of disbarment for misappropriation. Respondent’s
repayment of the campaign funds, commitment to Gamblers
Anonymous, and service to the community are commendable.
Nonetheless, those facts do not “substantially outweigh” the
aggravating factors—that she engaged in multiple acts of mis-
appropriation, not merely one, and did so while holding elec-
tive public office.
Given the nature of respondent’s actions, which involved
misappropriation, misrepresentation, violation of state law, and
abuse of public office, disbarment is the appropriate sanction.
A 1-year suspension would not adequately reflect the sever-
ity of respondent’s misconduct, deter others from engaging
in similar conduct, or reinforce the high standards56 to which
attorneys and public officers are held.
55
See Malcom, supra note 29, 252 Neb. at 272, 561 N.W.2d at 243.
56
See, § 3-508.4, comment 5; Douglas, supra note 19.
Nebraska Advance Sheets
STATE EX REL. COUNSEL FOR DIS. v. COUNCIL 49
Cite as 289 Neb. 33
VI. CONCLUSION
It is the judgment of this court that respondent be disbarred
from the practice of law in the State of Nebraska, effective
from the date of her temporary suspension on September 25,
2013. Respondent shall comply with Neb. Ct. R. § 3-316
(rev. 2014), and upon failure to do so, she 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) (rev. 2014) and 3-323 within 60 days after
an order imposing costs and expenses, if any, is entered by
this court.
Judgment of disbarment.
Miller-Lerman, J., not participating.