State ex rel. Counsel for Dis. v. Garrison , 296 Neb. 550 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/07/2017 09:11 AM CDT
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Nebraska Supreme Court A dvance Sheets
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STATE EX REL. COUNSEL FOR DIS. v. GARRISON
Cite as 296 Neb. 550State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Dustin A. Garrison, respondent.
___ N.W.2d ___
Filed April 27, 2017. No. S-16-803.
Original action. Judgment of suspension.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Per Curiam.
INTRODUCTION
This case is before the court on the conditional admission
filed by Dustin A. Garrison, respondent, on December 27,
2016. The court accepts respondent’s conditional admission
and orders that respondent be suspended from the practice of
law for a period of 90 days followed by 1 year’s monitored
probation upon reinstatement.
FACTS
Respondent was admitted to the practice of law in the State
of Nebraska on April 15, 2008. At all relevant times, he was
engaged in the private practice of law in Beatrice, Nebraska.
On August 24, 2016, the Counsel for Discipline of the
Nebraska Supreme Court filed formal charges against respond­
ent. The formal charges consist of one count against respond­
ent. With respect to the one count, the formal charges state
that in August 2008, a client was injured by a vehicle that was
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STATE EX REL. COUNSEL FOR DIS. v. GARRISON
Cite as 296 Neb. 550being driven by Devin Witt and that was registered in Texas
to “SERCO, Inc.” A police report was issued, which listed
addresses for both Witt and SERCO in Borger, Texas.
The client initially retained a different attorney to represent
him in a claim for damages against Witt and SERCO in Texas.
In July 2009, that attorney was suspended from the practice
of law, and his partner, respondent, began representing the
client. No engagement contract was signed between the client
and respondent.
On February 18, 2010, respondent sent a letter to “Serco,
Inc.,” in Reston, Virginia, to make a claim for damages suf-
fered by the client in the August 2008 accident. On February
19, Serco in Virginia, sent a letter to respondent stating that it
had never employed Witt and that it did not own any vehicles
that were in Nebraska or that were involved in an accident in
August 2008.
On May 21, 2012, respondent filed on a complaint on
behalf of the client against “Serco, Inc.,” a New Jersey cor-
poration, and Witt, individually and as an employee of Serco
in New Jersey. It was alleged in the complaint that Serco
in New Jersey had a registered agent in Lincoln, Nebraska.
Serco in New Jersey was served via U.S. mail through its
registered agent in Lincoln, and Witt was served via U.S. mail
at his address in Borger. A summons was served via certified
mail to Serco in New Jersey, in care of its registered agent
in Lincoln.
On October 7, 2013, the trial court entered an order of sum-
mary judgment against Serco in New Jersey in the amount of
$210,216.36. In March 2014, respondent initiated garnishment
proceedings on Serco’s account at a Pennsylvania bank.
In April 2014, Serco in New Jersey filed a motion to vacate
the default judgment and a motion for temporary injunction,
in which it stated that it was unrelated to the entity doing
business as “SERCO in Borger, Texas,” which had been iden-
tified in the August 2008 police report. Serco in New Jersey
further stated in its motions that it had never employed Witt.
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STATE EX REL. COUNSEL FOR DIS. v. GARRISON
Cite as 296 Neb. 550On April 24, the trial court entered an order in which it denied
the motions.
Between December 2010 and April 2015, the client
and respondent communicated via Facebook messages.
Throughout the pendency of the case, the client asked numer-
ous questions regarding the progress of the case and asked
for explanations regarding the lawsuit. According to the for-
mal charges,
[r]espondent responded with statements such as “relax”,
“I will take care of it”, “I will explain later”, “we are
fine”, “we won”, “Be happy. We are in the driver’s seat”,
“I’m busy right now”, “u realize we sued the wrong
company right? We got the money from a company that
had it. The correct company would never have had this
type of money to pay our judgment”, “this is compli-
cated”, “we’ve been busting our asses getting ready for
this hearing”, “I can’t explain the whole process”, and
claimed they will have to write a book to explain it all
to him.
The formal charges state that respondent failed to adequately
answer the client’s questions and adequately explain what was
happening regarding the status of the client’s lawsuit.
In April 2014, respondent discussed his fee amount with the
client via Facebook messages. Respondent informed the cli-
ent that his usual fee was 33 to 40 percent, but that he would
accept 33 percent from the client’s award.
Serco in New Jersey appealed the trial court’s decision
denying its motion to vacate the default judgment. On June
12, 2015, this court filed an opinion in which we reversed the
judgment of the trial court and remanded the cause with direc-
tions to the district court to vacate the default judgment entered
against Serco in New Jersey. See Carrel v. Serco Inc., 291 Neb.
61, 864 N.W.2d 236 (2015).
In July 2015, Serco in New Jersey filed a motion for sum-
mary judgment and served respondent at his office address.
On July 16, new counsel entered an appearance on behalf of
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STATE EX REL. COUNSEL FOR DIS. v. GARRISON
Cite as 296 Neb. 550the client, and on July 28, respondent filed a motion to with-
draw as counsel.
On July 31, 2015, a first amended complaint was filed
against “SERCO, INC.,” in Texas and Witt, individually and
as an employee of SERCO in Texas. The client’s new coun-
sel perfected the service of SERCO in Texas and Witt at the
addresses provided in the police report of the August 2008
incident. On December 2, the action against SERCO in Texas
was dismissed with prejudice and the action against Witt
was dismissed.
The formal charges allege that by his actions, respondent
violated his oath of office as an attorney, Neb. Rev. Stat.
§ 7-104 (Reissue 2012), and Neb. Ct. R. of Prof. Cond.
§§ 3-501.1 (competence), 3-501.3 (diligence), 3-501.4(a) and
(b) (communications), 3-501.5(b) and (c) (fees), and 3-508.4(a)
(misconduct).
On December 27, 2016, respondent filed a conditional
admission pursuant to Neb. Ct. R. § 3-313 of the disciplinary
rules, in which he conditionally admitted that he violated his
oath of office as an attorney and professional conduct rules
§§ 3-501.1, 3-501.3, 3-501.4(a) and (b), 3-501.5(b) and (c),
and 3-508.4(a). Respondent also acknowledged in his condi-
tional admission that he had previously received two private
reprimands. In the conditional admission, respondent know-
ingly does not challenge or contest the truth of the matters
conditionally admitted and waives all proceedings against
him in connection with the formal charges in exchange for a
90-day suspension followed by 1 year’s monitored probation.
Upon reinstatement, if accepted, 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 monitoring plan with his applica-
tion for reinstatement which shall include, but not be limited
to the following: During the first 6 months of probation,
respondent will meet with and provide the monitor a weekly
list of cases for which respondent is currently responsible,
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Cite as 296 Neb. 550which list shall include the following: 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, document
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 infor-
mation 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 his trust account within 10 working days of
receipt of the monthly bank statement and provide the moni-
tor a copy within 5 working days. Respondent shall submit
a quarterly compliance record to the Counsel for Discipline
demonstrating that respondent is adhering to the foregoing
terms of probation. The quarterly report shall include a cer-
tification by the monitor that the monitor has reviewed the
report and that respondent continues to abide by the terms of
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
the costs in this case, including the fees and expenses of the
monitor, if any.
The proposed conditional admission included a declaration
by the Counsel for Discipline, stating that respondent’s pro-
posed discipline is appropriate.
ANALYSIS
Section 3-313, which is a component of our rules governing
procedures regarding attorney discipline, provides in perti-
nent part:
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STATE EX REL. COUNSEL FOR DIS. v. GARRISON
Cite as 296 Neb. 550(B) At any time after the Clerk has entered a Formal
Charge against a Respondent on the docket of the Court,
the Respondent may file with the Clerk a conditional
admission of the Formal Charge in exchange for a stated
form of consent judgment of discipline as to all or
part of the Formal Charge pending against him or her
as determined to be appropriate by the Counsel for
Discipline or any member appointed to prosecute on
behalf of the Counsel for Discipline; such conditional
admission is subject to approval by the Court. The con-
ditional admission shall include a written statement that
the Respondent knowingly admits or knowingly does
not challenge or contest the truth of the matter or mat-
ters conditionally admitted and waives all proceedings
against him or her in connection therewith. If a tendered
conditional admission is not finally approved as above
provided, it may not be used as evidence against the
Respondent in any way.
Pursuant to § 3-313, and given the conditional admission,
we find that respondent knowingly does not challenge or
contest the matters conditionally admitted. We further deter-
mine that by his conduct, respondent violated conduct rules
§§ 3-501.1, 3-501.3, 3-501.4(a) and (b), 3-501.5(b) and (c),
and 3-508.4(a), and his oath of office as an attorney licensed to
practice law in the State of Nebraska. Respondent has waived
all additional proceedings against him in connection herewith.
Upon due consideration, the court approves the conditional
admission and enters the orders as indicated below.
CONCLUSION
Respondent is suspended from the practice of law for a
period of 90 days, effective immediately, after which period
respond­ent may apply for reinstatement to the bar. Should
respondent apply for reinstatement, his reinstatement shall be
conditioned upon respondent’s being on probation for a period
of 1 year, including monitoring, following reinstatement,
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STATE EX REL. COUNSEL FOR DIS. v. GARRISON
Cite as 296 Neb. 550subject to the terms agreed to by respondent in the conditional
admission and 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. §§ 7-114and 7-115 (Reissue 2012) and Neb. Ct. R. §§ 3-310(P) (rev.
2014) and 3-323 of the disciplinary rules within 60 days after
an order imposing costs and expenses, if any, is entered by
the court.
Judgment of suspension.