State ex rel. Counsel for Dis. v. Wolfe , 301 Neb. 117 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    09/28/2018 08:13 AM CDT
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    STATE EX REL. COUNSEL FOR DIS. v. WOLFE
    Cite as 
    301 Neb. 117
    State     of    Nebraska ex rel. Counsel for Discipline
    of the     Nebraska Supreme Court, relator,
    v. Tobin D. Wolfe, respondent.
    ___ N.W.2d ___
    Filed September 21, 2018.   No. S-18-437.
    Original action. Judgment of suspension.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Per Curiam.
    INTRODUCTION
    On May 2, 2018, formal charges containing 10 counts
    were filed by the office of the Counsel for Discipline of the
    Nebraska Supreme Court, relator, against respondent, Tobin D.
    Wolfe. Respondent filed an answer to the charges on May 23.
    A referee was appointed on June 4. The referee conducted a
    hearing on July 24.
    The referee filed a report on August 14, 2018. With respect
    to the 10 charges, the referee concluded that through respond­
    ent’s conduct, he had breached the following provisions of the
    Nebraska Court Rules of Professional Conduct: Neb. Ct. R.
    of Prof. Cond. §§ 3-501.1 (competence), 3-501.3 (diligence),
    3-501.4 (communication), 3-501.5(f) (timely accounting for
    fees), 3-501.16(d) (refunding fees on termination of repre-
    sentation), 3-508.1(b) (responding to bar admission and dis-
    ciplinary matters), and 3-508.4 (misconduct) (rev. 2016). The
    referee further found that respondent had violated his oath of
    office as an attorney licensed to practice law in the State of
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    STATE EX REL. COUNSEL FOR DIS. v. WOLFE
    Cite as 
    301 Neb. 117
    Nebraska. See 
    Neb. Rev. Stat. § 7-104
     (Reissue 2012). With
    respect to the discipline to be imposed, the referee recom-
    mended suspension of respondent’s license to practice law
    for a period of 2 years, commencing from the date of tempo-
    rary suspension, November 6, 2017, followed by a period of
    supervision of 2 years upon readmission. Respondent agreed
    to the proposed sanction. Neither relator nor respondent filed
    exceptions to the referee’s report. The parties filed a joint
    motion for judgment on the pleadings under Neb. Ct. R.
    § 3-310(L) (rev. 2014) of the disciplinary rules. We grant the
    motion for judgment on the pleadings and impose discipline
    as indicated below.
    FACTS
    Respondent was admitted to the practice of law in the State
    of Nebraska on April 23, 2013. At all times relevant to these
    proceedings, he has practiced in Lincoln, Nebraska.
    The substance of the referee’s findings may be summarized
    as follows: Respondent has practiced law since 2013, includ-
    ing family law, and on November 6, 2017, his license to prac-
    tice law in Nebraska was temporarily suspended until further
    order of this court. The violations arise from respondent’s
    conduct with respect to 10 clients who filed grievances with
    the Counsel for Discipline between April 3 and December 6,
    2017. The pertinent facts are not in dispute in this case and
    were admitted in respondent’s answer or acknowledged in
    his testimony.
    The referee held a hearing at which respondent testi-
    fied and evidence was adduced. In a report filed August 14,
    2018, the referee found that through respondent’s conduct,
    he had breached provisions of the Nebraska Court Rules of
    Professional Conduct as follows:
    • With respect to count I, respondent engaged in misconduct
    under § 3-508.4 by failing to provide a full accounting on
    request under § 3-501.5(f), and failing to properly and timely
    respond to the Counsel for Discipline under § 3-508.1(b).
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    STATE EX REL. COUNSEL FOR DIS. v. WOLFE
    Cite as 
    301 Neb. 117
    • With respect to count II, respondent engaged in misconduct
    under § 3-508.4 by failing to provide a full accounting under
    § 3-501.5(f), failing to timely refund unearned fees under
    § 3-501.16, failing to properly communicate with his cli-
    ent as required by § 3-501.4, and failing to properly and
    timely respond to the Counsel for Discipline in violation of
    § 3-508.1(b).
    • With respect to count III, respondent engaged in misconduct
    under § 3-508.4 by failing to properly communicate with his
    client in violation of § 3-501.4, and failing to timely respond
    to the Counsel for Discipline in violation of § 3-508.1(b).
    • With respect to count IV, respondent engaged in misconduct
    under § 3-508.4 by failing to properly communicate with his
    client as required by § 3-501.4, failing to handle a matter
    with the requisite level of competence and diligence required
    by §§ 3-501.1 and 3-501.3, and failing to timely respond to
    the Counsel for Discipline as required by § 3-508.1(b).
    • With respect to count V, respondent engaged in misconduct
    under § 3-508.4 by failing to properly communicate with his
    clients in violation of § 3-501.4, failing to handle a matter
    with the requisite level of competence and diligence required
    by §§ 3-501.1 and 3-501.3, and failing to timely respond to
    the Counsel for Discipline as required by § 3-508.1(b).
    • With respect to count VI, respondent engaged in misconduct
    under § 3-508.4 by failing to properly communicate with his
    client in violation of § 3-501.4.
    • With respect to count VII, respondent engaged in misconduct
    under § 3-508.4 by failing to properly communicate with his
    client in violation of § 3-501.4.
    • With respect to count VIII, respondent engaged in miscon-
    duct under § 3-508.4 by failing to properly communicate with
    his client in violation of § 3-501.4, failing to timely furnish
    an accounting for fees and costs as required by § 3-501.5(f),
    and failing to return the client’s file upon termination when
    requested.
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    STATE EX REL. COUNSEL FOR DIS. v. WOLFE
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    301 Neb. 117
    • With respect to count IX, respondent engaged in misconduct
    under § 3-508.4 by failing to properly communicate with
    his client in violation of § 3-501.4 and failing to timely
    furnish an accounting for fees and costs as required by
    § 3-501.5(f).
    • With respect to count X, respondent engaged in misconduct
    under § 3-508.4 by failing to properly communicate with his
    client in violation of § 3-501.4, failing to provide competent
    representation required by § 3-501.1, and failing to act with
    reasonable diligence as required by § 3-501.3.
    The referee further found that with regard to each of the counts
    enumerated above, 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 respondent’s license to practice
    law for a period of 2 years, commencing from the date of tem-
    porary suspension, November 6, 2017, followed by a period of
    supervision of 2 years upon readmission. The referee noted in
    her report that respondent had no prior instances of miscon-
    duct or discipline.
    In mitigation, respondent presented evidence from medi-
    cal providers and testified that he began suffering a major
    depressive episode in late 2016 from a mental health condition
    which had been previously undiagnosed. The referee found
    that respondent established that his symptoms played a sig-
    nificant role in his conduct and found that ongoing treatment
    and adherence to respondent’s health maintenance plan would
    reduce the risk of further misconduct.
    ANALYSIS
    A proceeding to discipline an attorney is a trial de novo
    on the record. State ex rel Counsel for Dis. v. Gast, 
    298 Neb. 203
    , 
    903 N.W.2d 259
     (2017). To sustain a charge in a discipli­
    nary proceeding against an attorney, a charge must be estab-
    lished by clear and convincing evidence. State ex rel. Counsel
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    STATE EX REL. COUNSEL FOR DIS. v. WOLFE
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    301 Neb. 117
    for Dis. v. Island, 
    296 Neb. 624
    , 
    894 N.W.2d 804
     (2017).
    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
    referee, we find that the above-referenced facts have been
    established by clear and convincing evidence. Based on the
    foregoing evidence, we conclude that by virtue of respond­
    ent’s conduct, respondent has violated §§ 3-501.1, 3-501.3,
    3-501.4(a)(3) and (4), 3-501.5(f), 3-501.16(d), 3-508.1(b), and
    3-508.4(a) and (d) of the professional conduct rules. We specif-
    ically conclude that respondent has violated his oath of office
    as an attorney, see § 7-104. Accordingly, we grant the parties
    joint 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. Island,
    
    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
    (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, § 3-310(N) of the disciplinary rules.
    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. State ex rel.
    Counsel for Dis. v. Island, 
    supra.
     For purposes of determining
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    STATE EX REL. COUNSEL FOR DIS. v. WOLFE
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    301 Neb. 117
    the proper discipline of an attorney, this court considers the
    attorney’s acts both underlying the events of the case and
    throughout the proceeding, as well as any aggravating or miti-
    gating 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.
     We have considered prior discipline including rep-
    rimands as aggravators. State ex rel. Counsel for Dis. v. Nich,
    
    279 Neb. 533
    , 
    780 N.W.2d 638
     (2010).
    The evidence in the present case establishes there were
    10 separate grievances involving a wide range of miscon-
    duct, including failing to communicate with clients, failing
    to diligently complete work, failing to properly account for
    fees, failing to return client files following termination, and
    misstatements. When contacted by relator, respondent initially
    failed to respond for approximately 8 months following the
    initial grievance.
    With respect to the discipline to be imposed, the referee
    recommended suspension of respondent’s license to practice
    law for a period of 2 years, commencing from the date of
    temporary suspension, November 6, 2017, followed by a
    period of supervised probation of 2 years upon readmission.
    The referee compared the level of misconduct to that pre-
    sented in State ex rel. Counsel for Dis. v. Simon, 
    288 Neb. 385
    , 
    848 N.W.2d 642
     (2014). The respondent in Simon had
    nine counts of misconduct and a mental health issue, and this
    court imposed an indefinite suspension with no possibility for
    reinstatement for 14 months, followed by 2 years of probation
    with monitoring.
    We have considered the record, the findings which have
    been established by clear and convincing evidence, and the
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    STATE EX REL. COUNSEL FOR DIS. v. WOLFE
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    applicable law. Upon due consideration, the court finds that
    the referee’s recommendation is appropriate and adopts a
    2-year suspension, commencing from November 6, 2017, fol-
    lowed by a period of monitored probation of 2 years upon
    readmission. See 
    id.
     As noted, no exceptions have been taken
    to this recommendation.
    Respondent shall comply with Neb. Ct. R. § 3-316 (rev.
    2014), and upon failure to do so, he shall be subject to pun-
    ishment for contempt of this court. We also direct respondent
    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.
    At the end of the 2-year suspension, respondent may apply
    to be reinstated to the practice of law, provided that he has
    demonstrated his compliance with § 3-316 and further pro-
    vided that relator has not notified this court that respondent
    has violated any disciplinary rule during his suspension. Upon
    his application for reinstatement, respondent should have the
    burden of establishing that he is fit to practice law under the
    terms of his probation, including that treatment for his depres-
    sion has resulted in a meaningful and sustained recovery. Such
    proof shall include a showing that he has continued treat-
    ment with a qualified mental health doctor, unless such doc-
    tor releases respondent from treatment. Upon reinstatement,
    respondent shall complete 2 years of monitored probation.
    During the period of probation, respondent will be moni-
    tored by an attorney licensed to practice law in the State of
    Nebraska and approved by relator. The monitoring plan shall
    include but not be limited to the following:
    (1) During probation, respondent shall be subject to a treat-
    ment monitoring program by the Nebraska Lawyers Assistance
    Program and a practice monitoring program, which should be
    monitored by a licensed practicing attorney who is acceptable
    to the Counsel for Discipline.
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    STATE EX REL. COUNSEL FOR DIS. v. WOLFE
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    301 Neb. 117
    (2) Respondent should comply with treatment recommen-
    dations of his treating doctor as monitored by the Nebraska
    Lawyers Assistance Program. If at any time the assistance
    program believes that respondent has failed to comply with his
    treatment requirements, it shall report the same to the Counsel
    for Discipline.
    (3) On a monthly basis, respondent shall provide the moni-
    toring attorney with a list of all cases for which respondent is
    then currently responsible, said list to include the following
    information for each case: (a) the date the attorney-client rela-
    tionship began; (b) the type of case (i.e., criminal, dissolution,
    probate, contract, et cetera); (c) the date of the last contact
    with the client; (d) the last date and type of work completed
    on the case; (e) the next type of work and date to be completed
    on the case; and (f) any applicable statute of limitations and
    its date.
    (4) If at any time the monitoring attorney believes respond­
    ent has violated a disciplinary rule or has failed to comply
    with the terms of probation, the monitoring attorney shall
    report the same to relator.
    CONCLUSION
    The motion for judgment on the pleadings is granted. We
    find that respondent violated §§ 3-501.1, 3-501.3, 3-501.4,
    3-501.5(f), 3-501.16(d), 3-508.1(b), and 3-508.4 and his oath
    of office as an attorney, see § 7-104. It is the judgment of
    this court that respondent is suspended from the practice of
    law for a period of 2 years, effective November 6, 2017. It is
    the further judgment of this court that upon completion of the
    period of suspension and reinstatement to the bar, respondent
    shall be placed on monitored probation for 2 years, subject to
    the terms set forth above. Respondent is also directed to pay
    costs and expenses in accordance with §§ 7-114 and 7-115
    and §§ 3-310(P) and 3-323(B) of the disciplinary rules within
    60 days after an order imposing costs and expenses, if any, is
    entered by the court.
    Judgment of suspension.