State ex rel. Counsel for Dis. v. Ubbinga , 295 Neb. 995 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/03/2017 08:08 AM CST
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. UBBINGA
Cite as 295 Neb. 995
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Lori A nne Ubbinga, respondent.
___ N.W.2d ___
Filed March 3, 2017. No. S-16-373.
Original action. Judgment of suspension.
Kent L. Frobish, Assistant Counsel for Discipline, for relator.
No appearance for respondent.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Per Curiam.
INTRODUCTION
On April 11, 2016, formal charges containing one count
were filed by the office of the Counsel for Discipline of the
Nebraska Supreme Court, relator, against Lori Anne Ubbinga,
respondent. Respondent filed an answer to the formal charges
on July 5. A referee was appointed, and the referee held
a hearing on the charges. Respondent did not appear at
the hearing.
The referee filed a report on December 2, 2016. With
respect to the formal charges, the referee concluded that
respondent’s conduct had violated the following provisions
of the Nebraska Rules of Professional Conduct: Neb. Ct.
R. of Prof. Cond. §§ 3-501.1 (competence); 3-501.3 (dil-
igence); 3-501.4(a) and (b) (communications); 3-501.15(d)
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(safekeeping property); 3-501.16(d) (declining or terminat-
ing representation); 3-508.1(a) and (b) (bar admission and
disciplinary matters); and 3-508.4(a), (c), and (d) (miscon-
duct). The referee further found that respondent had violated
her 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 discipline to be imposed, the referee
recommended a 1-year suspension and that upon reinstate-
ment, if applied for and accepted, respondent be placed on
monitored probation for a period of 2 years. Neither relator
nor respond­ent filed exceptions to the referee’s report. Relator
filed a 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.
STATEMENT OF FACTS
Respondent was admitted to the practice of law in the State
of Nebraska on September 20, 2001. At all times relevant to
these proceedings, she was engaged in the practice of law in
Homer, Nebraska.
On April 11, 2016, relator filed formal charges against
respondent. The formal charges contain one count generally
regarding respondent’s failure to communicate with a client and
respondent’s failure to perform the legal work for the client for
which respondent had been paid. The formal charges alleged
that by her conduct, respondent violated her oath of office as
an attorney and professional conduct rules §§ 3-501.1; 3-501.3;
3-501.4(a) and (b); 3-501.15(d); 3-501.16(d); 3-508.1(a) and
(b); and 3-508.4(a), (c), and (d).
Because respondent failed to file an answer or other plead-
ing within 30 days of being served with summons and a copy
of the formal charges, relator filed a motion for judgment on
the pleadings on June 22, 2016. On June 30, respondent sent
an email to relator in which she requested additional time to
respond to the motion and formal charges. Relator responded,
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stating that it would not object to respondent’s filing her
answer out of time, so long as it was filed by July 5. On July
5, respondent filed a motion for extension of time to respond,
which this court sustained, and, accordingly, her answer was
filed. In her answer to the formal charges, respondent admitted
some of the factual allegations and denied others. She denied
the violations alleged in the formal charges.
A referee was appointed on August 5, 2016. On August
25, relator sent a letter to respondent asking to schedule a
time to take her deposition. Respondent did not respond. On
August 29, relator left a voicemail message asking respondent
to call.
On August 30, 2016, a prehearing conference was held by
telephone with the referee, respondent, and relator. A progres-
sion schedule was established, whereby discovery was to be
completed by October 7 and a hearing was set for October 25.
On September 8, 2016, relator sent an email to respondent
asking her to advise relator when she would be available for
her deposition. Respondent did not reply. On September 12,
relator left a voicemail message for respondent and sent an
email to respondent stating that relator had scheduled her
deposition for September 22. Respondent did not respond to
the email. Relator placed a followup call to respondent on
September 15 and left a voicemail message.
Because respondent had failed to respond to relator’s emails
and voicemail messages, relator had the sheriff personally
serve a subpoena duces tecum on respondent, which changed
the date of respondent’s deposition to September 29, 2016.
On September 26, respondent contacted relator and requested
that the date of the deposition be rescheduled because she had
a funeral to attend on September 29. Relator rescheduled the
deposition for October 4, and respondent’s deposition was
taken on October 4.
On October 5, 2016, relator and respondent exchanged
emails regarding witnesses, exhibits, and a stipulation of facts.
Relator sent a proposed stipulation of facts for respondent’s
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review and consideration. Respondent did not respond to rela-
tor’s proposed stipulation of facts. Respondent sent an email
in which she asked relator if she could send her witness and
exhibit lists at a later date. Respondent did not provide relator
or the referee with respondent’s list of witnesses or exhibits
before the hearing.
According to the referee’s report, on October 25, 2016, at
approximately 6:10 a.m., respondent left a voicemail message
with the referee stating that she was ill and would not be able
to attend the hearing on the formal charges scheduled for that
day. Respondent stated that relator “‘could put on what he
needs to put on and that maybe I could submit something in
writing in maybe a week or so.’” Respondent further stated
that the referee could call her. She did not request a continu-
ance of the hearing.
At approximately 7:35 a.m., respondent left a voicemail
message with relator indicating that she was ill and would not
be attending the hearing. According to the referee’s report,
respondent stated in the message that she would like a contin-
uance “but understood that [relator] was ready to proceed with
the hearing and she did not want to interfere with that so she
said go ahead and make your record.” She further stated that
she would request permission to submit something in writing
to the referee on a later date. Respondent did not submit any
such writing to the referee.
At approximately 8 a.m., the referee called relator and com-
municated the content of respondent’s voicemail. Relator stated
that he wanted to proceed with the hearing, and the referee
advised relator that he would allow relator to make his request
as to how he wanted to proceed on the record.
At approximately 10 a.m., relator appeared at the hearing
with his witness. Respondent did not appear. Relator stated on
the record that he wished to proceed with the hearing, to offer
exhibits, and to have his witness testify. Relator stated that he
would not object if respondent submitted something in writ-
ing later.
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At approximately 10:10 a.m., before allowing relator to put
on evidence, the referee called respondent and left a voicemail
message asking her to call him. Respondent did not return the
referee’s call. Thereafter, relator called respondent, but she did
not answer. The referee stated that he would proceed with the
hearing on the formal charges. The hearing was held at approx-
imately 10:30 a.m. on October 25, 2016. Respondent did not
appear. At the hearing, relator offered and the referee received
32 exhibits, and relator called one witness, respondent’s client,
to testify.
After the hearing was completed, relator rested its case
“[s]ubject to whatever [respondent] does.” The referee did not
close the record and stated that as a matter of due process,
he wanted to give respondent some opportunity to review the
record, appear, and testify.
On October 26, 2016, the referee filed a posthearing order
which he emailed to respondent and relator. The order stated
in part that copies of the transcript and exhibits received at
the hearing were being sent to respondent and that respondent
would have 10 days to review them. The order further stated
that at the end of the 10 days, the referee would contact the
parties to schedule a date, time, and place for respondent to
appear and present evidence.
On November 4, 2016, the referee mailed and emailed to
the parties copies of the transcript and exhibits which had been
received at the hearing. The referee advised that he would
contact the parties on November 14 to schedule a time and
place for respondent to present evidence. On November 14
at approximately 9 a.m., the referee called respondent at her
home and cell phone numbers. No one answered his call at
respondent’s home number; no answering machine picked up.
The referee left a voicemail message on the cell phone number
asking respondent to call back. Respondent did not return the
referee’s call. At approximately 9:30 a.m., the referee called
respondent’s cell phone and left another message. At approxi-
mately 9:35 a.m., the referee called relator and advised him
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that respondent had not returned the referee’s calls. Relator
then made a motion for the referee to close the record of the
hearing on the formal charges. The referee sustained relator’s
motion. The relator then set a schedule for the parties’ briefing.
Relator submitted a brief, but respondent did not.
On December 2, 2016, the referee filed his report and rec-
ommendation. The substance of the referee’s findings may
be summarized as follows: In December 2014, a client hired
respondent to represent him in a child visitation case. The cli-
ent had been represented at trial by a different lawyer. After
the trial, the court filed a decree on December 22, awarding
sole custody of the three minor children to the children’s
mother. The client was granted supervised visitation during
the first 3 months following the decree to begin with super-
vised visitation every other weekend from noon to 5 p.m. on
Saturday and noon to 5 p.m. on Sunday. The client was also
granted supervised visitation each Wednesday from 5 to 7 p.m.
Supervision was to be provided by the children’s mother, the
children’s maternal grandmother, or any other third person
agreed to by the parties. At the client’s sole discretion and
cost, such supervision could be provided by a neutral third-
party agency.
The client contacted respondent regarding the decree and
the visitation ordered by the court. Respondent and the client
agreed they would not appeal from the decree.
The dispute between the client and the children’s mother
was over the supervised visitation of the children. The cli-
ent insisted upon exercising his visitation in his home with a
neutral third-party agency, and the children’s mother would
not agree.
At the hearing on the formal charges, the client testified
that he hired respondent to help him with his visitation issue.
The client expected that respondent would talk to the attorney
for the children’s mother in order to facilitate visitation and to
obtain contact information so the client could talk to his chil-
dren. The client further testified that he told respondent that
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if visitation could not be quickly resolved, he wanted respond­
ent to file a contempt motion against the children’s mother.
The client testified that respondent was willing to file such a
contempt motion.
In his report, the referee noted that the client’s testimony
as to the amount he paid respondent is not consistent with
Facebook messages between the client and respondent, in
which the client stated to respondent: “‘Well I gave you 1200
total and you sent 4 e-mails so I believe you earned the 200,
but I think its fare [sic] to say I deserve $1,000 back.’”
With respect to attorney fees, the client testified that he
made an initial payment of $500 cash to respondent, and in
January 2015, he gave respondent a $1,000 check. It was the
client’s understanding that it would only cost him $1,500 for
respondent to represent him in the visitation matter and for
some unrelated matters.
In contrast, respondent testified that the client first con-
tacted her in November 2014, that he had contacted her mul-
tiple times via Facebook, and that she informed him that he
needed to pay her some attorney fees. Respondent testified
their first meeting in person was in December 2014, and she
quoted him a fee of $2,500 for representing him in various
matters. She testified that although the original agreement was
for $2,500, the client paid her only $1,000. Respondent also
testified that the client paid her $200 as a filing fee for another
case, but that she did not file anything.
With respect to representation, the client testified that
respond­ent represented him from January to May 2015. The
referee found that on January 8, 2015, the client sent a
Facebook message to respondent stating that he wanted to
exercise his visitation because it had been a year since he had
seen his children. On January 9, the client met with respond­
ent and paid her $200. The client asked that respondent assist
him in arranging for his visitation through the attorney for the
mother’s children, and respondent stated she would email the
attorney to make the arrangements. The client testified that
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he asked respondent several times to file a contempt motion
against the children’s mother, but that respondent did not
do so.
Because the client did not hear from respondent, on January
12, 2015, he sent respondent two messages asking if she had
heard from the other attorney. On January 13, respondent sent
the client a message stating she would call the other attorney
again that morning. The client asked respondent if he could
file a contempt motion if the other attorney did not respond,
and respondent replied that she would file an appearance in the
case and that a contempt motion could be filed.
On February 6, 2015, respondent spoke by telephone with
the attorney for the children’s mother regarding the client’s
visitation with the children. Respondent suggested that visita-
tion begin on February 14, but no agreement was reached dur-
ing that call. On February 9, the other attorney sent respond­
ent an email informing her that visitation on February 14
would not work, and instead proposed that visitation occur on
February 21 if the client would agree that the children’s mater-
nal grandmother would supervise the visit at her house. The
attorney asked respondent to let him know if respondent’s cli-
ent would agree to this visitation. Respondent did not respond
to the other attorney until February 20.
The client did not want to exercise visitation at the maternal
grandmother’s house, so he asked respondent to help make
arrangements for a third party to supervise the visit at his
house. By February 20, 2015, respondent was unable to make
these arrangements for the client’s supervision on February 21.
On February 20 at 2:44 p.m., respondent sent an email to the
other attorney stating that the client would exercise his visita-
tion at his house with a third-party counselor, even though
she had been unable to make arrangements for a third party to
supervise the visit. At 4:41 p.m., the other attorney responded,
stating that visitation could not be arranged on such short
notice and that because he had not heard from respondent in
answer to his February 9 email, he assumed the client did not
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want to exercise visitation on February 21. The other attorney
reiterated the children’s mother’s position that the first visita-
tion should occur at the children’s mother’s house. He also
asked for 1 week’s notice for future visitations.
On February 23, 2015, the client sent a message to respond­
ent asking about his visitation. Respondent replied that she
had sent an email to the other attorney on February 20, but
she did not receive a response. Respondent stated she would
forward the email to the client that evening, but the client did
not get a copy of the email. The client responded that if the
children’s mother denied his visitation, he wanted to file a
motion for contempt.
On February 24, 2015, the client sent respondent two
Facebook messages asking about the February 20 email
respond­ent sent to the other attorney and about future visi-
tation. On February 25, respondent sent the client a mes-
sage stating that the other attorney had not responded to her
email and that she would forward her February 20 email
to him later that day. She did not forward the email to the
client. The client stated that he believed they should file a
contempt motion. On February 26, respondent emailed the
client implying that she had not received a response from the
other attorney regarding her February 20 email. Respondent
told the client that she would send another request to the
other attorney and that if she did not receive a response, she
would file a motion for contempt. The referee stated in his
report that respondent’s statements that she did not receive a
response from the other attorney regarding her February 20
email were false and that respondent knew they were false
when she made them.
At no time between February 20 and 26, 2015, did respond­
ent seek to arrange for the client’s visitation for February
28. On February 26, respondent sent an email to the other
attorney “complaining that it was his fault that [the client]
did not have visitation on February 14 or February 21.” She
stated that the client would exercise visitation on March 7
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at his house with a third-party supervisor. Respondent sent
a copy of this email to the client. On February 26, the other
attorney responded and reiterated the children’s mother’s
position that the initial visitation must be in a familiar envi-
ronment supervised by a person the children know and trust.
The other attorney asked respondent to let him know if the
client changed his mind; otherwise, the other attorney stated
he would wait for whatever action respondent and the client
would take.
On March 2, 2015, respondent sent an email to the other
attorney indicating that the client had not changed his mind
about visitation at his house with a third-party supervisor.
Respondent did not renew her request for visitation for March
7; however, she stated that she was going to file a motion
for contempt. The other attorney did not respond to this
email. After March 2, there were no further telephone calls,
emails, or other correspondence between respondent and the
other attorney.
On March 3, 2015, the client sent a message to respondent
asking if she was going to file a motion for contempt. On
March 4, respondent told the client she would file a motion for
contempt, but she wanted to wait for the children’s mother to
refuse visitation one more time. On March 6, the client sent a
message to respondent stating that if he did not get visitation
on March 7, he wanted respondent to file a motion for con-
tempt on March 9.
On March 9, 2015, the client sent a message to respond­
ent asking if she was going to file the contempt motion that
day. Respondent replied, stating, “‘[Y]es filing a contempt.’”
Respondent did not file a motion for contempt on March 9.
On March 10, the client sent respondent a message asking if
the contempt motion had been filed. Respondent responded
that the motion would be filed the next day. On March 11, the
client sent a message to respondent asking again if the con-
tempt motion had been filed. Respondent did not respond. At
11:10 a.m., on March 12, the client sent respondent another
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message, again asking if the contempt motion had been filed.
Respondent did not respond.
At 2:27 p.m. on March 12, 2015, the client sent a message
to respondent stating that he spoke to the clerk of the court and
learned that respondent had not filed any pleading in his case
involving the children’s mother. The client directed respond­
ent to send him an invoice and refund his money so he could
hire another lawyer. At 2:59 p.m., respondent sent the client
a message stating, “‘Sorry you feel that way. I will get your
file together.’”
On March 13, 2015, the client and respondent exchanged
several messages. Respondent stated, “‘I will get your file
together and invoice sent to you next week.’” After further
messages, the client agreed to let respondent continue with his
case so long as the contempt motion was filed. Respondent
stated, “‘I will have your contempt ready to file Monday.’”
On Monday, March 16, 2015, the client sent a message
to respondent asking if the contempt motion had been filed.
Respondent responded that it would be done the next day. On
March 17, the client sent a message to respondent asking when
the contempt motion would be filed. Respondent replied that
she was going to “‘call court and get date to put in the order
for hearing.’” Respondent stated she would contact the cli-
ent the next day. On the evening of March 18, the client sent
respondent a message asking if she was going to call him.
Respondent did not respond.
On March 19, 2015, the client and respondent exchanged
several messages. The client asked if the contempt motion
had been filed, and respondent stated she would file it “‘this
week.’” The client reminded respondent that it was Thursday
and that the workweek ended the next day. On March 20,
respondent sent a message to the client stating that the con-
tempt hearing was scheduled for April 20 at 10 a.m.
Between April 6 and 17, 2015, the client sent three messages
to respondent asking about the contempt hearing. Respondent
did not respond to the messages. On April 19, respondent sent
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a message to the client informing him that the hearing on the
motion for contempt set for April 20 had to be continued for
a couple weeks because the notice of hearing was not served
in time.
On April 21, 2015, the client sent a message to respondent
informing her that he checked with the court and learned that
no contempt motion had been filed, nor was there an order set-
ting the hearing date signed by the judge. The client directed
respondent to send him his file so he could hire another lawyer
to take over his case. Respondent replied that she would mail
everything to the client. The referee noted in his report that at
no time in February, March, or April 2015 did respondent file
a motion for contempt to find the children’s mother in con-
tempt for failing to allow the client to exercise his visitation
with his children.
On May 2, 2015, the client sent respondent a message ask-
ing if she had sent his file to him, and respondent did not reply.
On May 7, the client sent a message to respondent stating that
if he did not have his file by Monday, May 11, he would con-
tact the Counsel for Discipline. On May 11, respondent sent
a message to the client stating that his file would be ready on
Wednesday, May 13. She asked if he wanted her to mail the
file to him or if he wanted to pick it up. The client directed
respondent to mail the file to him, and he also asked for a
refund of half the money he had paid respondent. Respondent
did not mail anything to the client.
On May 18, 2015, the client filed a grievance with relator
alleging that respondent had neglected his case and lied to him
about filing the motion for contempt.
On May 20, 2015, respondent sent a message to the client
stating that she would send him a detailed itemization and his
file. The client renewed his request for a refund of the fees he
paid respondent. It was agreed that the client would meet with
respondent at her office on May 26. Early in the morning on
May 26, respondent sent the client a message that she wanted
to meet on May 27 instead. The client responded that meeting
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today would be better for him and suggested meeting later in
the day. Respondent did not respond.
On May 27, 2015, respondent sent the client a message ask-
ing to change their meeting to Saturday, May 30. The client
responded by asking respondent to just mail the documents to
him rather than rescheduling the meeting. Respondent replied
that she could send the documents, but she wanted to see the
client. The client replied, “‘Ok so what do you feel is fare [sic]
money wise that I deserve to get back.’” Respondent stated,
“‘You decide. I don’t need a fight with my medical problems.
If you believe I deserve nothing so be it. I assume you will
withdraw your complaints.’” The client replied that he wanted
$1,000 back and that he would withdraw his complaints if
respondent returned the money.
Respondent and the client did not meet on May 30, 2015,
and respondent did not send the file or refund the money to the
client. The referee noted in his report that as of May 30, 2016,
respondent had not delivered to the client his file, an itemized
statement of her time working on his cases, or a refund of
his payments.
On July 1, 2015, in her initial response to relator regarding
the client’s grievance, respondent stated that she met with the
client on February 9 and that “‘it was decided we would get
a court date for a contempt and see how things shook out.
This was done and court set for April 21 [sic], 2015, service
was not perfected and new date would be provided.’” On July
8, relator sent a letter to respondent asking her to respond to
certain questions and to provide certain documents regard-
ing her representation of the client. In her July 24 response,
respondent claimed that she had prepared the contempt docu-
ments, secured a hearing date, and gave the documents to a
process server who failed to properly serve the documents.
Respondent claimed because the documents were not prop-
erly served, she did not file an application to show cause,
and that is why there was no order for hearing signed by
the judge.
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On July 28, 2015, relator sent respondent a letter asking
her to provide a copy of her transmittal letter to the process
server who was to serve the contempt motion on the children’s
mother, and to include copies of the documents to be served.
In her September 8 response, respondent included a copy of
a letter dated March 4, 2015, to a process server, in which
he was instructed to serve the application to show cause on
the children’s mother. Respondent also enclosed a copy of an
application to show cause. She did not include any other docu-
ments in her September 8 response.
The referee determined in his report, with respect to the
allegations set forth in the formal charges, that based on
respondent’s actions, she did not act promptly or diligently;
did not keep the client reasonably informed about the status of
the matter; engaged in conduct involving dishonesty, deceit, or
misrepresentation; failed to provide an accounting to the client;
and failed to deliver the client’s file to him. Accordingly, the
referee found that respondent violated her oath of office as an
attorney and professional conduct rules §§ 3-501.1; 3-501.3;
3-501.4(a) and (b); 3-501.15(d); 3-501.16(d); 3-508.1(a) and
(b); and 3-508.4(a), (c), and (d).
The referee identified certain aggravating factors, including
that respondent failed to cooperate fully with relator and made
false statements to relator. Respondent also failed to cooperate
with the referee and to comply with the referee’s orders. The
referee noted that respondent has not accepted responsibility
for her conduct and has shown no remorse. The referee also
found as an aggravating factor that respondent’s dishonest con-
duct adversely reflects on her fitness to practice law and her
representation of the client “raises questions as to whether the
Respondent is competent to practice law.” The referee further
stated that it is an aggravating factor that respondent’s failure
to properly represent the client resulted in a substantial delay
in his being able to visit his children and that the outcome of
the case would have been different had respondent compe-
tently represented the client.
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The referee identified certain mitigating factors. The ref-
eree noted that there was no evidence presented indicating
that respondent was not in good standing with the Nebraska
State Bar Association. The referee also noted that respondent
had practiced law in Nebraska for 14 years without any prior
disciplinary complaints filed against her or penalties imposed
on her.
With respect to sanctions to be imposed for the foregoing
actions, considering the aggravating and mitigating factors,
the referee recommended that respondent be suspended for a
period of 1 year and that if reinstated, respondent be placed on
monitored probation for a period of 2 years.
ANALYSIS
In view of the fact that neither party filed written exceptions
to the referee’s report, relator filed a motion for judgment on
the pleadings under § 3-310(L). When no exceptions to the
referee’s findings of fact are filed, the Nebraska Supreme Court
may consider the referee’s findings final and conclusive. State
ex rel. Counsel for Dis. v. Boyum, 291 Neb. 696, 868 N.W.2d
326 (2015). Based upon the findings in the referee’s report,
which we consider to be final and conclusive, we conclude
that the formal charges are supported by clear and convinc-
ing evidence, and the motion for judgment on the pleadings
is granted.
A proceeding to discipline an attorney is a trial de novo on
the record. State ex rel. Counsel for Dis. v. Thebarge, 289 Neb.
356, 854 N.W.2d 914 (2014). Violation of a disciplinary rule
concerning the practice of law is a ground for discipline, and
disciplinary charges against an attorney must be established
by clear and convincing evidence. State ex rel. Counsel for
Dis. v. Sundvold, 287 Neb. 818, 844 N.W.2d 771 (2014). See,
also, State ex rel. Counsel for Dis. v. Tighe, 295 Neb. 30, 886
N.W.2d 530 (2016).
Based on the record and the undisputed findings of the
referee, we find that the above-referenced facts have been
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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) and (b); 3-501.15(d); 3-501.16(d); 3-508.1(a) and
(b); and 3-508.4(a), (c), and (d) of the professional conduct
rules. The record also supports a finding by clear and con-
vincing evidence that respondent violated her oath of office
as an attorney, and we find that respondent has violated
said oath.
We have stated that the basic issues in a disciplinary pro-
ceeding against an attorney are whether discipline should be
imposed and, if so, the appropriate discipline under the cir-
cumstances. See State ex rel. Counsel for Dis. v. Boyum,
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, disciplinary rule § 3-310(N).
With respect to the imposition of attorney discipline in an
individual case, each attorney discipline case must be evaluated
in light of its particular facts and circumstances. State ex rel.
Counsel for Dis. v. Boyum, supra. For purposes of 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 fac-
tors. Id.
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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 reputation
of the bar as a whole, (4) the protection of the public, (5) the
attitude of the respondent generally, and (6) the respondent’s
present or future fitness to continue in the practice of law. State
ex rel. Counsel for Dis. v. Tighe, 295 Neb. 30, 886 N.W.2d
530 (2016).
The evidence in the present case establishes, among other
facts, that respondent agreed to represent the client with respect
to the exercise of his visitation with his children. However,
respondent failed to complete such work and failed to com-
municate with the client regarding the actual status of her
work. Respondent failed to provide the client with an account-
ing when asked, and respondent failed to provide the client
with his file. In addition, respondent failed to cooperate with
the relator’s investigation in a timely manner, and respondent
failed to comply with the referee’s orders.
As aggravating factors, we note, as did the referee, that
respondent has not taken responsibility for her actions. The
referee further noted that respondent’s dishonest conduct
adversely reflects on her fitness to practice law and that “the
evidence concerning the Respondent’s representation of [the
client] raises questions as to whether the Respondent is com-
petent to practice law.” As a further aggravator, the referee
noted that respondent’s failure to properly represent the client
resulted in a substantial delay in the client’s being able to visit
his children.
As mitigating factors, we acknowledge, as did the referee,
that respondent was in good standing with the Nebraska State
Bar Association and that respondent had not received any
prior discipline.
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
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respondent should be suspended for a period of 1 year. Upon
reinstatement, if applied for and accepted, respondent shall be
placed on monitored probation for a period of 2 years, and the
monitoring shall be by an attorney licensed to practice law
in the State of Nebraska and who shall be approved by the
Counsel for Discipline. Respondent shall submit a monitor-
ing plan with her application for reinstatement which shall
include, but not be limited to, the following: During the first
6 months of the probation, respondent will meet with and pro-
vide the monitor a weekly list of cases for which respondent
is currently responsible, which list shall include the date the
attorney-client relationship began; the general type of case; the
date of last contact with the client; the last type and date of
work completed on the file (pleading, correspondence, docu-
ment preparation, discovery, court hearing); the next type of
work and date that work should be completed on the case;
any applicable statutes of limitations and their dates; and the
financial terms of the relationship (hourly, contingency, et
cetera). After the first 6 months through the end of probation,
respondent shall meet with the monitor on a monthly basis and
provide the monitor with a list containing the same informa-
tion as set forth above. Respondent shall work with the moni-
tor to develop and implement appropriate office procedures
to ensure that the clients’ interests are protected. Respondent
shall reconcile her trust account within 10 workings days of
receipt of the monthly bank statement and provide the monitor
with a copy within 5 working days. Respondent shall submit
a quarterly compliance report with the Counsel for Discipline,
demonstrating that respondent is adhering to the foregoing
terms of probation. The quarterly report shall include a certifi-
cation by the monitor that the monitor has reviewed the report
and that respondent continues to abide by the terms of the
probation. If at any time the monitor believes respondent has
violated the professional conduct rules or has failed to comply
with the terms of probation, the monitor shall report the same
to the Counsel for Discipline. Finally, respondent shall pay all
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the costs in this case, including the fees and expenses of the
monitor, if any.
CONCLUSION
The motion for judgment on the pleadings is granted.
Respondent is suspended from the practice of law for a period
of 1 year, effective immediately, after which period respondent
may apply for reinstatement to the bar. Should respondent apply
for reinstatement, her reinstatement shall be conditioned upon
respondent’s being on probation for a period of 2 years, includ-
ing monitoring, following reinstatement, subject to the terms
outlined above. Acceptance of an application for reinstatement
is conditioned on the application’s being accompanied by a
proposed monitored probation plan the terms of which are
consistent with this opinion. Respondent shall comply with
Neb. Ct. R. § 3-316 (rev. 2014), and upon failure to do so,
respondent shall be subject to punishment for contempt of this
court. Respondent is also directed to pay costs and expenses in
accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue
2012) and § 3-310(P) and Neb. Ct. R. § 3-323(B) of the disci-
plinary rules within 60 days after an order imposing costs and
expenses, if any, is entered by the court.
Judgment of suspension.