State ex rel. Counsel for Dis. v. Argyrakis ( 2020 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
Cite as 305 Neb. 396
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator, v.
Evangelos A. Argyrakis, respondent.
___ N.W.2d ___
Filed March 27, 2020. No. S-19-059.
1. Disciplinary Proceedings. Because attorney discipline cases are origi-
nal proceedings before the Nebraska Supreme Court, the court reviews a
referee’s recommendations de novo on the record, reaching a conclusion
independent of the referee’s findings.
2. Disciplinary Proceedings: Rules of the Supreme Court. Under Neb.
Ct. R. § 3-304, the Nebraska Supreme Court may impose one or more
of the following disciplinary sanctions: (1) disbarment; (2) suspension;
(3) probation, in lieu of or subsequent to suspension, on such terms
as the court may designate; (4) censure and reprimand; or (5) tempo-
rary suspension.
3. 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 respondent generally, and (6) the respondent’s present
or future fitness to continue in the practice of law.
4. ____. Each attorney discipline case must be evaluated in light of its
particular facts and circumstances.
5. ____. For purposes of determining the proper discipline of an attor-
ney, 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. ____. In attorney discipline cases, the propriety of a sanction must
be considered with reference to the sanctions imposed in prior simi-
lar cases.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
Cite as 305 Neb. 396
Original action. Judgment of disbarment.
Julie L. Agena, Assistant Counsel for Discipline, for relator.
Evangelos A. Argyrakis, pro se.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
NATURE OF CASE
The issue in this attorney discipline proceeding is what
discipline should be imposed on Evangelos A. Argyrakis for
violating the Nebraska Rules of Professional Conduct.
Argyrakis pleaded no contest to knowing and intentional
abuse, neglect, or exploitation of a vulnerable adult or senior
adult, a Class IIIA felony. At the plea hearing, when asked for
a factual basis for the plea, the prosecutor said that if the mat-
ter proceeded to trial, the State would show that Argyrakis,
in the course of a verbal argument, repeatedly punched his
83-year-old father in the face, resulting in observable inju-
ries. Neither Argyrakis nor his counsel objected to the fac-
tual basis.
The referee recommended disbarment, and after our review,
we conclude that disbarment is the proper sanction.
BACKGROUND
Procedural History.
Argyrakis was admitted to the practice of law in Nebraska
on September 14, 1992. At all times relevant to these pro-
ceedings, he was licensed to practice law in the State of
Nebraska.
Argyrakis was initially charged in the district court for
Douglas County with strangulation, a Class IIIA felony. The
information, filed May 10, 2018, identified the victim as
Argyrakis’ father and alleged that the crime took place on
April 8.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
Cite as 305 Neb. 396
On June 25, 2018, the relator hand-delivered to Argyrakis a
letter notifying him that he was under investigation in connec-
tion with the pending criminal case and asking him to provide
a written response within 15 working days. A few days later,
Argyrakis sent an email to the relator in which he stated that
“[t]his matter was a domestic dispute where I was not the
aggressor.” He requested that the relator await the conclusion
of the criminal proceedings before continuing the investiga-
tion. The relator notified Argyrakis that any further action
would be withheld until the criminal case was resolved, but
also asked that Argyrakis advise the relator as to the status of
the case.
On September 24, 2018, Argyrakis pleaded no contest to an
amended information charging him with knowing and inten-
tional abuse, neglect, or exploitation of a vulnerable adult or
senior adult, a Class IIIA felony. The amended information
again identified the victim as Argyrakis’ father and alleged
that the crime was committed on April 8. He was sentenced to
3 years’ probation, with terms that included chemical testing
and a mental health evaluation. Argyrakis failed to report the
plea and sentencing to the relator.
After the Committee on Inquiry of the Second Judicial
District concluded that there were reasonable grounds for
discipline of Argyrakis and that the public interest would
be served by the filing of formal charges, formal charges
were filed against Argyrakis on January 23, 2019. The for-
mal charges alleged that Argyrakis had violated the Nebraska
Rules of Professional Conduct by committing a criminal act
that reflected adversely on his honesty, trustworthiness, or fit-
ness as a lawyer in other respects. Argyrakis filed an answer
to the formal charges in which he admitted allegations regard-
ing the fact of his conviction and sentence, but failed to either
admit or deny whether he violated the Nebraska Rules of
Professional Conduct.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
Cite as 305 Neb. 396
Hearing.
On May 3, 2019, a hearing on the formal charges was com-
menced. Argyrakis represented himself at the hearing.
The relator offered certified copies of documents reflect-
ing the charges, plea agreement, and sentence in the criminal
case. The relator also called Argyrakis to testify. In his testi-
mony, Argyrakis admitted that he pleaded no contest to and
was found guilty of vulnerable adult abuse against his father.
Argyrakis denied that he was convicted of a crime of violence,
because, in his words, he “was not the aggressor.” Argyrakis
also acknowledged that since 2010, he had seen five different
doctors for mental health therapy and medication manage-
ment; that he had undergone two mental health evaluations,
one prior to the April 2018 incident and one after; and that
he was currently taking three different medications for mental
health issues.
After being questioned by counsel for the relator, Argyrakis
made a statement under oath. He stated that during his child-
hood, his father physically and emotionally abused him and
that he witnessed his father physically abusing his mother. He
testified to his belief that he had always represented clients dil-
igently and effectively and that no clients had ever complained
about his services. He also testified that he did not intend to
harm his father, that he had attempted to get help for the cir-
cumstances that led to the incident, and that he did not believe
a similar incident would happen again.
Argyrakis also called Regina Schulze to testify. Schulze,
a licensed independent mental health professional, testified
that she began providing weekly mental health counseling to
Argyrakis in December 2018. Schulze diagnosed Argyrakis
with depressive disorder, panic disorder, and post-traumatic
stress disorder. She testified to her opinion that these issues
contributed to the incident between Argyrakis and his father
and that she did not expect any physical altercations in the
future. On cross-examination, she admitted that she based these
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
Cite as 305 Neb. 396
conclusions solely upon information provided by Argyrakis
and that she had not reviewed any of his prior medical records,
mental health evaluations, or other documentation concerning
his condition.
Following the close of evidence, the referee directed the
parties to file briefs addressing whether Argyrakis was con-
victed of a crime of violence. The referee expressed hesitation
as to whether the crime of abuse of a vulnerable adult would
always constitute a crime of violence. In particular, the referee
observed that the crime could be committed through neglect
or exploitation, and he noted that it was not clear that would
amount to a crime of violence.
On May 9, 2019, the relator filed a motion to reopen the
record. The relator sought to supplement the record with the
transcript of the plea proceedings in Argyrakis’ criminal case.
The relator contended it was relevant to the issue of whether
Argyrakis committed a crime of violence. The referee took the
motion under advisement, but allowed the relator to condition-
ally proceed with the evidence.
When allowed to proceed with evidence, the relator intro-
duced the transcript of the proceeding in which Argyrakis
entered his plea in the criminal case. At that proceeding, the
prosecutor said that the State was pursuing the charge against
Argyrakis on the ground that he physically injured his father.
Further, when asked for the factual basis for the plea, the pros-
ecutor stated that if the matter proceeded to trial, the evidence
would show that during an argument between Argyrakis and
his 83-year-old father, Argyrakis repeatedly punched his father
in the face, causing observable injuries. Neither Argyrakis
nor his counsel objected to the factual basis for the plea, and
Argyrakis stated on the record that he was satisfied with the
representation provided by his counsel.
The referee later granted the motion to reopen the record.
Referee’s Report.
The referee filed a report and recommendation. The ref-
eree found, by clear and convincing evidence, that Argyrakis
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
Cite as 305 Neb. 396
violated Neb. Ct. R. of Prof. Cond. § 3-508.4(b) (rev. 2016)
and his oath of office as an attorney.
The referee specifically analyzed whether Argyrakis was
convicted of a crime of violence. The referee concluded such
analysis was necessary based on his understanding that this
court ruled in State ex rel. Counsel for Dis. v. Walz 1 that dis-
barment is the appropriate sanction for conviction of a fel-
ony crime of violence “absent extraordinary mitigation.” The
referee concluded that Argyrakis was convicted of a crime
of violence.
The referee also considered potential mitigating circum-
stances. He found that Argyrakis’ lack of a prior disciplinary
record in over 25 years of practice was a mitigating circum-
stance. He found that Argyrakis had not accepted responsibil-
ity for his misconduct and that thus, that was not available as a
mitigating circumstance. He also found that Argyrakis’ mental
health diagnosis should not be considered in mitigation. The
referee explained that under State ex rel. Counsel for Dis. v.
Thompson, 2 in order for mental health to be considered in mit-
igation, Argyrakis was required to show (1) medical evidence
that he is affected by a mental health condition, (2) that the
condition was a direct and substantial contributing cause to the
misconduct, and (3) that treatment of the condition will sub-
stantially reduce the risk of further misconduct. The referee
concluded that Argyrakis had not made the required showing
under Thompson, explaining little weight could be afforded
to Schulze’s opinions that a mental health issue caused his
misconduct and that treatment of the condition would sub-
stantially reduce the risk of further misconduct, because those
opinions were formed solely on the basis of self-reporting
by Argyrakis.
The referee recommended disbarment.
1
State ex rel. Counsel for Dis. v. Walz, 291 Neb. 566, 869 N.W.2d 71
(2015).
2
State ex rel. Counsel for Dis. v. Thompson, 264 Neb. 831, 652 N.W.2d 593
(2002).
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
Cite as 305 Neb. 396
ASSIGNMENT OF ERROR
Neither party has taken exception to the report of the ref-
eree. Therefore, the only issue is the appropriate sanction under
the circumstances. Argyrakis opposes the referee’s recommen-
dation and the relator’s request for disbarment.
STANDARD OF REVIEW
[1] Because attorney discipline cases are original proceed-
ings before this court, we review a referee’s recommendations
de novo on the record, reaching a conclusion independent of
the referee’s findings. 3
ANALYSIS
Neither party filed exceptions to the referee’s report and
recommendation. In those circumstances, the court may, at its
discretion, adopt the findings of the referee as final and con-
clusive. 4 We therefore adopt the referee’s findings that clear
and convincing evidence establishes that Argyrakis violated
§ 3-508.4(b) and his oath of office as an attorney. The only
issue remaining for this court’s consideration is the appropri-
ate sanction.
[2-6] Under Neb. Ct. R. § 3-304, this court may impose one
or more of the following disciplinary sanctions: (1) disbarment;
(2) suspension; (3) probation, in lieu of or subsequent to sus-
pension, on such terms as the court may designate; (4) censure
and reprimand; or (5) temporary suspension. 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 deter-
ring others, (3) the maintenance of the reputation of the bar
as a whole, (4) the protection of the public, (5) the attitude of
3
State ex rel. Counsel for Dis. v. Gast, 296 Neb. 687, 896 N.W.2d 583
(2017).
4
Neb. Ct. R. § 3-310(L) (rev. 2014).
5
State ex rel. Counsel for Dis. v. Nimmer, 300 Neb. 906, 916 N.W.2d 732
(2018).
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305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
Cite as 305 Neb. 396
the respondent generally, and (6) the respondent’s present or
future fitness to continue in the practice of law. 6 Each attorney
discipline case must be evaluated in light of its particular facts
and circumstances. 7 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 factors. 8
Furthermore, the propriety of a sanction must be considered
with reference to the sanctions imposed in prior similar cases. 9
We will proceed to consider each of these issues in turn.
Consideration of Traditional
Sanction Factors.
In Walz, we discussed how the factors we regularly consider
in formulating an appropriate sanction for attorney misconduct
apply when an attorney is convicted of a crime of violence. 10
In the course of discussing the nature of the offense and the
need for deterrence, we observed that offenses involving vio-
lence require discipline and that the sanction must be tailored
to maintain public confidence in the bar. 11 We also noted that
the factor requiring consideration of protection of the public is
not merely concern for a physical danger to the public, but also
requires consideration of whether it is in the public interest to
allow an attorney who has committed a crime of violence to
keep practicing law. Finally, we emphasized that even if no
clients are harmed, “an attorney’s conviction of a felony for a
crime of violence requires a severe sanction.” 12
6
State ex rel. Counsel for Dis. v. Jorgenson, 302 Neb. 188, 922 N.W.2d 753
(2019).
7
Nimmer, supra note 5.
8
Id.
9
Id.
10
Walz, supra note 1.
11
Id. (citing § 3-508.4, comment 2).
12
Id. at 576, 869 N.W.2d at 77.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
Cite as 305 Neb. 396
The foregoing discussion from Walz regarding the appro-
priate sanction when an attorney is convicted of a crime of
violence is applicable in this case. We classified the conviction
at issue in Walz as a crime of violence when it did not involve
actual physical violence, but the threat to commit such vio-
lence. Here, the factual basis offered for Argyrakis’ no contest
plea, to which Argyrakis did not object, was that Argyrakis
committed an act of actual physical violence by repeatedly
punching his 83-year-old father in the face.
This case is similar to Walz with respect to another tradi-
tional factor bearing on the appropriate sanction—the attitude
of the respondent. In Walz, the attorney insisted on her inno-
cence despite entering a no contest plea to making terroristic
threats. We stated that it was not our task to review a crimi-
nal conviction in attorney disciplinary proceedings and that
because the respondent insisted on her innocence, she had not
accepted responsibility for her actions. For similar reasons, we
cannot say that Argyrakis has accepted responsibility in this
case. Although Argyrakis seems to concede that he did, in fact,
inflict physical violence on his elderly father, throughout the
proceedings, he has attempted to minimize his culpability by
insisting that he was not the aggressor in the encounter and that
his actions were in self-defense. As in Walz, it is not our task to
review the conviction. And rather than accepting responsibility
for that conviction, Argyrakis is attempting to assign at least
partial responsibility for it to others.
Consideration of Mitigating Factors.
Also relevant to the appropriate sanction in an attorney dis-
cipline case is the existence of any mitigating factors. Here,
the referee found one mitigating factor: the absence of any
prior disciplinary issues in Argyrakis’ over 25 years of practice.
We agree with the referee that this is a factor to be considered
in mitigation.
We also do not disagree with the referee’s conclusion that
Argyrakis’ mental health issues were entitled to little weight in
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
Cite as 305 Neb. 396
mitigation. In Thompson, we held that in order for depression
to be considered as a mitigating circumstance, the respondent
must show (1) medical evidence that he or she is affected by
depression, (2) that the depression was a direct and substantial
contributing cause to the misconduct, and (3) that treatment of
the depression will substantially reduce the risk of further mis-
conduct. 13 We see no reason not to require the same showing in
order to consider other mental health conditions as a mitigat-
ing circumstance.
Argyrakis attempted to introduce evidence of his mental
health issues through Schulze. And though Schulze testified
that she had diagnosed Argyrakis with mental health condi-
tions, that she believed those conditions caused his misconduct,
and that treatment of those conditions would reduce the risk
of further misconduct, we agree with the referee that there
are compelling reasons that this testimony should be accorded
little weight. Schulze did not begin seeing Argyrakis until after
the incident underlying his criminal conviction. And despite
Argyrakis’ acknowledgment that he had been treated by mul-
tiple doctors for mental health issues several years before the
incident and that he had undergone mental health evaluations
before and after the incident, Schulze did not consider any of
this information in forming her opinions. Rather, she admitted
that her opinions were based solely on information reported by
Argyrakis. Because Schulze’s opinions were formed without
considering what would seem to be highly relevant informa-
tion and mindful of the fact that the referee heard and observed
Schulze during her testimony and determined that it should be
given little weight, 14 we find that Argyrakis has not made the
required showing to allow his mental health issues to be con-
sidered in mitigation.
13
Thompson, supra note 2.
14
See State ex rel. NSBA v. McArthur, 257 Neb. 618, 599 N.W.2d 592 (1999)
(while attorney discipline proceeding is trial de novo on record, court may
give weight to referee’s findings on matters of disputed fact).
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
Cite as 305 Neb. 396
In his brief before us and at oral argument, Argyrakis con-
tended that other factors should be considered in mitigation.
He claimed that he was not the aggressor in the incident with
his father and that the decision to prosecute him was politically
motivated. We see no other mitigating factors. As noted above,
it is not our function to review his conviction. Further, there is
no evidence in the record supportive of his theory of a politi-
cally motivated prosecution.
Comparison to Prior Cases.
Each attorney discipline case must be evaluated individually
in light of its particular facts and circumstances. 15 In addi-
tion, the propriety of a sanction must also be considered with
reference to the sanctions imposed in prior similar cases. 16
Walz appears to be the only truly similar prior case for us to
consider here. In Walz, we noted that there are few Nebraska
cases of attorney discipline involving felony convictions of
any kind and that Walz was the first case to involve a crime
of violence. 17
In Walz, the respondent was first charged with second degree
domestic assault and use of a weapon to commit a felony.
The State alleged that she assaulted her husband with a knife.
Pursuant to a plea agreement, the respondent pleaded no con-
test to one count of making terroristic threats. The respondent
maintained her innocence. We found that her felony conviction
for a crime of violence damaged the reputation of the bar and
threatened public confidence in the profession. We disbarred
the respondent from the practice of law.
This case bears a number of similarities to Walz. Like the
respondent in Walz, Argyrakis pleaded no contest to a felony
crime of violence. And like the respondent in Walz, Argyrakis
did not accept responsibility for his conviction.
15
State ex rel. Counsel for Dis. v. Riskowski, 272 Neb. 781, 724 N.W.2d 813
(2006).
16
Id.
17
Walz, supra note 1.
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
Cite as 305 Neb. 396
There are, to be sure, differences between this case and
Walz. As Argyrakis points out, the respondent in Walz also
had no prior disciplinary history, but we pointed out that she
had been in practice for only about 6 months before the mis-
conduct occurred. This is obviously entitled to less weight
than Argyrakis’ over 25 years of practice without discipli­
nary issues. In addition, there was explicit testimony from
the respondent’s psychologist in Walz that she was not, at that
time, fit to practice law. No similar testimony was offered in
Argyrakis’ case.
But not all of the differences between this case and Walz
tilt in Argyrakis’ favor. As we have previously noted, the
conviction in Walz was for making threats to use violence,
while the conviction here involves actual physical violence
on an elderly person. Further, the conviction in this case was
for a Class IIIA felony, more serious than the Class IV felony
in Walz. In addition, although both the respondent in Walz
and Argyrakis did not accept responsibility for their convic-
tions, the respondent in Walz was found to be fully coop-
erative with the Counsel for Discipline. The same cannot be
said for Argyrakis. Argyrakis failed to notify the Counsel for
Discipline that he had entered a plea and been sentenced in
his criminal case, despite the request to keep the Counsel for
Discipline informed.
In sum, this case is highly similar to Walz and any differ-
ences that cut in favor of a less serious sanction are counter-
balanced by differences that cut in the opposite direction.
Sanction.
In Walz, we observed that while we have not stated a
“‘bright line rule,’” 18 our cases regarding the appropriate disci-
pline for felony convictions have generally concluded that such
convictions reflect adversely upon a lawyer’s fitness to practice
law and that disbarment is the appropriate sanction. As in Walz,
we believe it is necessary to convey the serious consequences
18
Id. at 575, 869 N.W.2d at 77.
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STATE EX REL. COUNSEL FOR DIS. v. ARGYRAKIS
Cite as 305 Neb. 396
that attach to a conviction for a crime of violence. Such a con-
viction damages the reputation of the bar and threatens public
confidence in the profession. For these reasons, we conclude,
after considering the appropriate factors, that disbarment is the
appropriate sanction in this case.
CONCLUSION
Argyrakis violated § 3-508.4(b) (misconduct) and his oath
of office as an attorney. It is the judgment of this court that
Argyrakis is disbarred from the practice of law in the State of
Nebraska, effective immediately. He is directed to comply with
Neb. Ct. R. § 3-316 (rev. 2014), and upon failure to do so, he
shall be subject to punishment for contempt.
Judgment of disbarment.