State ex rel. Counsel for Dis. v. Maxell ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/26/2023 09:08 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. V. MAXELL
Cite as 314 Neb. 346State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Benjamin E. Maxell, respondent.
___ N.W.2d ___
Filed May 26, 2023. No. S-22-195.
Original action. Judgment of disbarment.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
INTRODUCTION
This case is before the court on the voluntary surrender of
license filed by the respondent, Benjamin E. Maxell, on March
31, 2023. The court accepts the respondent’s voluntary surren-
der of his license and enters a judgment of disbarment.
STATEMENT OF FACTS
The respondent was admitted to the practice of law in the
State of Nebraska on September 19, 2003. At all times rel-
evant to these proceedings, the respondent was engaged in
the practice of law in Omaha, Nebraska. Pursuant to Neb.
Ct. R. § 3-302, the respondent is under the jurisdiction of the
Committee on Inquiry of the Second Judicial District.
On June 7, 2021, we administratively suspended the respond­
ent’s license to practice law due to his failure to report his
continuing legal education compliance for the year 2020. His
license remains suspended.
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STATE EX REL. COUNSEL FOR DIS. V. MAXELL
Cite as 314 Neb. 346On March 24, 2022, the Counsel for Discipline of the
Nebraska Supreme Court, the relator, filed formal charges
against the respondent. A referee was appointed on June 21.
On February 22, 2023, the relator filed amended formal
charges. The amended formal charges consist of 13 counts
and allege violations of the following Nebraska Rules of
Professional Conduct (disciplinary rules): Neb. Ct. R. of Prof.
Cond. §§ 3-501.1 (rev. 2017) (competence), 3-501.3 (dili-
gence), 3-501.4 (communications), 3-508.1 (response to dis-
ciplinary matters), and 3-508.4(a) through (d) (rev. 2016)
(misconduct), as well as his oath of office as an attorney
licensed in the State of Nebraska, Neb. Rev. Stat. § 7-104(Reissue 2022).
On March 31, 2023, the respondent filed a voluntary sur-
render of his license to practice law. The respondent states
that for purposes of this voluntary surrender, he knowingly
does not challenge or contest the allegations of the amended
formal charges, that he freely and voluntarily consents to
the entry of an order of disbarment, and that he waives
his right to notice, appearing, or hearing prior to the entry
of disbarment.
Count I.
In early 2020, the respondent was retained by Joseph and
Kathy Ellis to defend them in a civil contract suit, and he
filed an appearance in the district court for Douglas County,
Nebraska, on their behalf. The respondent caused delays and
failed to respond for several months to discovery requests
on behalf of his clients, despite several emails and a motion
to compel discovery. In November 2020, without notifying
his clients, the respondent stipulated that they would submit
discovery responses within 21 days. The respondent did not
submit the discovery responses within 21 days, or at any time
thereafter. On February 4, 2021, opposing counsel moved to
compel the Ellises to submit their discovery responses and
for sanctions. Following a hearing, the district court ordered
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STATE EX REL. COUNSEL FOR DIS. V. MAXELL
Cite as 314 Neb. 346the Ellises to file answers to interrogatories by March 16 or
their answer would be struck. The court assessed a sanction of
$750 against the Ellises for the plaintiff’s attorney fees. The
respondent did not inform his clients of these proceedings.
Subsequently, the respondent failed to notify his clients that
the plaintiff had filed a motion for partial summary judgment
against them or that a hearing was set on the motion. The
respondent failed to appear at the hearing, and the district court
granted the motion for summary judgment.
After the respondent’s license to practice law was adminis-
tratively suspended by the Nebraska Supreme Court, he failed
to inform his clients that his license was suspended and failed
to deliver the clients’ file to the clients or replacement coun-
sel. The Ellises filed a grievance with the relator against the
respondent, and the relator mailed a copy of the Ellises’ griev-
ance to the respondent. The respondent failed to respond to the
grievance as directed and failed to timely respond to a letter
from the relator investigating the grievance and requesting a
copy of the case file.
The amended formal charges allege that by his actions, the
respondent violated his oath of office as an attorney licensed to
practice law in the State of Nebraska and violated disciplinary
rules §§ 3-501.1 (competence), 3-501.3 (diligence), 3-501.4
(communications), 3-508.1 (failure to respond to counsel for
discipline), and 3-508.4(a), (c), and (d) (misconduct).
Count II.
Count II also relates to the respondent’s representation of
the Ellis family. On July 10, 2019, Kathy and her son, Dalton
Ellis, paid the respondent an advance fee and hired him to
pursue a claim by Dalton against the University of Nebraska
at Omaha. The respondent contacted the university, but failed
to provide any documents to his clients and failed to resolve
the matter. Sometime after January 1, 2020, the respondent
informed the clients that he would be filing suit. However, no
suit was filed, and the respondent stopped communicating
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STATE EX REL. COUNSEL FOR DIS. V. MAXELL
Cite as 314 Neb. 346with Kathy and Dalton. On June 18, 2021, Kathy and Dalton
filed a grievance with the relator against the respondent. The
relator mailed a copy of the grievance to the respondent, who
did not respond as directed.
On November 9, 2021, the relator sent a letter to the
respond­ent directing him to answer specific questions regard-
ing his representation of Dalton and to provide a copy of his
file. The respondent failed to timely respond.
The amended formal charges allege that by his actions, the
respondent violated his oath of office as an attorney licensed
to practice law in the State of Nebraska as provided by statute,
§ 7-104, and violated disciplinary rules §§ 3-501.3 (diligence),
3-501.4 (communications), 3-508.1 (failure to respond to coun-
sel for discipline), and 3-508.4(a) (misconduct).
Count III.
Count III relates to the respondent’s representation of James
Bothmer in a claim against Creighton University. On July 19,
2019, the respondent filed suit on behalf of Bothmer in the
district court for Douglas County. After Creighton University
filed its answer in August 2019, no further action was taken
in the case. On November 18, the district court sent notice
that the case would be dismissed in 30 days unless a pro-
posed scheduling order was filed. In December, the district
court entered a scheduling order signed by the respondent and
opposing counsel. The scheduling order set discovery dead-
lines and directed the parties to be prepared for a jury trial not
later than July 1, 2020. Because the respondent failed to timely
prosecute his client’s case, amended scheduling orders were
entered on May 21, September 2, and December 2. Trial was
continued because the respondent had failed to prepare.
After the respondent’s license to practice law was admin-
istratively suspended on June 7, 2021, the respondent failed
to inform his client, the court, and opposing counsel of his
suspension.
On June 8, 2021, the district court scheduled a status con-
ference for August 17. The respondent failed to appear at
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STATE EX REL. COUNSEL FOR DIS. V. MAXELL
Cite as 314 Neb. 346the status conference, failed to notify the court he would not
attend, failed to notify Bothmer that he would not attend on
his behalf, and failed to secure substitute counsel for his cli-
ent. The district court issued a show cause order that directed
the respondent to personally appear in court on September
7. The respondent failed to inform Bothmer about the show
cause hearing. Ultimately, neither the respondent nor Bothmer
attended the hearing on the order to show cause, and the case
was dismissed for failure to prosecute.
Bothmer filed a grievance with the relator against the
respond­ent, alleging that the respondent failed to keep him
informed about his case, failed to inform him of the respond­
ent’s suspension, and made false statements about the status
of the case. The relator sent a copy of the grievance to the
respond­ent, and the respondent failed to timely respond.
The amended formal charges allege that by his actions, the
respondent violated his oath of office as an attorney licensed
to practice law in the State of Nebraska as provided by statute,
§ 7-104, and violated disciplinary rules §§ 3-501.1 (compe-
tence), 3-501.3 (diligence), 3-501.4 (communications), 3-508.1
(failure to respond to counsel for discipline), and 3-508.4(a),
(c), and (d) (misconduct).
Count IV.
Count IV concerns intimate partner violence and arises
out of a criminal complaint filed against the respondent on
October 26, 2020, in the county court for Douglas County,
case No. CR 20-19892. The respondent was charged with
five counts: (1) domestic assault, third degree, Class I misde-
meanor, on August 27; (2) criminal trespass, first degree, on
August 27; (3) criminal mischief, $0 to $500, on September
26; (4) domestic assault, third degree, Class I misdemeanor,
on September 26; and (5) criminal trespass, first degree, on
September 26. On May 27, 2021, the respondent entered a plea
of no contest to an amended count of disturbing the peace, a
Class III misdemeanor. All other counts were dismissed. The
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STATE EX REL. COUNSEL FOR DIS. V. MAXELL
Cite as 314 Neb. 346respondent was sentenced to 2 years of probation and ordered
not to contact the victim. He was also ordered to obtain an
evaluation for chemical dependency and a full psychological
evaluation. The respondent violated the terms of his probation
due to repeated contact with the victim and for testing positive
for alcohol and amphetamines. On September 15, 2022, the
order of probation was extended to November 1, 2023, and
the court imposed additional terms to address his alcohol and
chemical dependency and intimate partner violence.
The amended formal charges allege that by his actions, the
respondent violated his oath of office as an attorney licensed
to practice law in the State of Nebraska as provided by stat-
ute, § 7-104, and violated disciplinary rule § 3-508.4(a) and
(b) (misconduct).
Count V.
Count V arises from the criminal complaint, case No.
CR 20-22584, arising from the respondent’s later assault of
November 27, 2020, on the same victim. On December 11, the
respondent was charged with domestic assault, third degree, a
Class I misdemeanor.
In May 2021, the respondent entered a plea of no contest
to an amended count of disturbing the peace, a Class III mis-
demeanor. The respondent was sentenced to 2 years of proba-
tion. As special conditions of his probation, the respondent
was ordered to have no contact with the victim of the assault,
obtain an evaluation for chemical dependency, and obtain
a full psychological evaluation. On July 15, the State filed a
motion to revoke the respondent’s probation due to repeated
contact with the victim and for testing positive for alcohol
and amphetamines. On March 8, 2022, the respondent admit-
ted that he violated the terms of his probation. On September
15, the order of probation was extended to November 1, 2023,
and the court imposed additional terms on the respondent.
The amended formal charges allege that by his actions,
the respondent violated his oath of office as an attorney
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314 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. V. MAXELL
Cite as 314 Neb. 346licensed to practice law in the State of Nebraska as provided
by statute, § 7-104, and violated disciplinary rule § 3-508.4(a)
and (b) (misconduct).
Count VI.
Count VI of the amended formal charges alleges that on
April 8, 2021, a criminal complaint was filed against the
respondent in the county court for Douglas County, case No.
CR 21-5801. The respondent was charged with driving under
the influence, first offense, a Class W misdemeanor, and care-
less driving, based on events which occurred on February 7.
The respondent entered a plea of no contest to the driving
under the influence charge, and the careless driving charge was
dismissed. The court ordered the respondent to participate in a
sobriety program, but he failed to comply. On March 15, 2022,
a bench warrant was issued for his arrest, and the respondent
was arrested. He was released from jail on March 25 on his
own recognizance. On September 15, the respondent appeared
in court for sentencing. He was ultimately fined $500 and
sentenced to serve 60 days in the county jail, with credit for 4
days previously served. His sentence was to run concurrently
with all other cases in which the respondent was also sen-
tenced that day. His driver’s license was revoked for 180 days,
with permission to use an ignition interlock device.
The amended formal charges allege that by his actions, the
respondent violated his oath of office as an attorney licensed
to practice law in the State of Nebraska as provided by stat-
ute, § 7-104, and violated disciplinary rule § 3-508.4(a) and
(b) (misconduct).
Count VII.
Count VII arose out of a criminal complaint filed against
the respondent in the county court for Douglas County on
June 18, 2021, in case No. CR 21-9839. The respondent was
charged with driving during revocation/impoundment, a Class
II misdemeanor, and driving a vehicle without a valid regis-
tration, a Class III misdemeanor, which events occurred on
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STATE EX REL. COUNSEL FOR DIS. V. MAXELL
Cite as 314 Neb. 346May 13. The respondent entered a plea of no contest to the
charge of driving during revocation/impoundment, and the
registration charge was dismissed. According to the amended
formal charges, the respondent appeared in court for sentenc-
ing and, in February 2023, was sentenced to serve 120 days
in county jail, with credit for 4 days previously served. His
sentence was to run consecutively to sentences in cases Nos.
CR 22-2694 and CR 21-16749 and concurrently with those
imposed in cases Nos. CR 21-10233 and CR 21-5801. His
driver’s license was also revoked for 365 days.
The amended formal charges allege that by his actions, the
respondent violated his oath of office as an attorney licensed
to practice law in the State of Nebraska as provided by stat-
ute, § 7-104, and violated disciplinary rule § 3-508.4(a) and
(b) (misconduct).
Count VIII.
Count VIII arises out of a criminal complaint filed against
the respondent in the county court for Douglas County, case
No. CR 21-10233. The respondent was charged with five
counts of violating a domestic violence protection order in
May and June 2021. Each count is a Class I misdemeanor. On
March 8, 2022, the respondent entered a plea of no contest to
all counts. On September 15, the respondent was sentenced to
serve 60 days in jail on each of the five counts of violating the
protection order. The sentences were ordered to be served con-
currently with each other and concurrently with all other cases
in which the respond­ent was sentenced on the same day.
The amended formal charges allege that by his actions, the
respondent violated his oath of office as an attorney licensed
to practice law in the State of Nebraska as provided by stat-
ute, § 7-104, and violated disciplinary rule § 3-508.4(a) and
(b) (misconduct).
Count IX.
Count IX arises out of criminal proceedings in Douglas
County, case No. CR 21-16749. The respondent was charged
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314 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. V. MAXELL
Cite as 314 Neb. 346with driving during revocation/impoundment, a Class II mis-
demeanor, and driving a vehicle without a valid registration,
a Class III misdemeanor. These charges arose out of events
occurring on August 9, 2021. The respondent entered a plea
of no contest to the charge of driving during revocation/
impoundment, and the no valid registration charge was dis-
missed. The respondent appeared for sentencing, and he was
ultimately sentenced to serve 90 days in the county jail, with
credit for 4 days previously served. His sentence was to run
consecutively to those imposed in cases Nos. CR 22-2694
and CR 21-9839 and concurrently with his sentences in cases
Nos. CR 21-10233 and CR 21-5801. His driver’s license was
revoked for 1 year.
The amended formal charges allege that by his actions, the
respondent violated his oath of office as an attorney licensed
to practice law in the State of Nebraska as provided by stat-
ute, § 7-104, and violated disciplinary rule § 3-508.4(a) and
(b) (misconduct).
Count X.
Count X concerns a criminal complaint filed against the
respondent that charged him with operating a motor vehicle
while intoxicated, more than .15, a Class W misdemeanor;
driving during revocation/impoundment, a Class II misde-
meanor; and driving with an open alcohol container in his
vehicle. The events are alleged to have occurred on December
17, 2021. The respondent’s driver’s license was revoked for
365 days; he was fined $500; and he was sentenced to serve
60 days in the county jail, with credit for 4 days previously
served. This sentence was to run consecutively to his sen-
tences in cases Nos. CR 21-9839 and CR 21-16749 and con-
currently with those imposed in cases Nos. CR 21-10233 and
CR 21-5801.
The amended formal charges allege that by his actions, the
respondent violated his oath of office as an attorney licensed
to practice law in the State of Nebraska as provided by
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314 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. V. MAXELL
Cite as 314 Neb. 346statute, § 7-104, and violated disciplinary rule § 3-508.4(a) and
(b) (misconduct).
Count XI.
Count XI concerns a criminal complaint filed against the
respondent in the district court for Montgomery County, Iowa,
case No. OW-CR011520. On September 28, 2021, the respond­
ent was charged with a misdemeanor of operating a motor
vehicle while intoxicated, based on his conduct of September
4. On April 8, 2022, a criminal complaint was filed against
the respondent in the same Iowa district court, case No.
SR-CR011607, charging the respondent with driving while
his license was revoked, a misdemeanor, which occurred on
March 26.
Pursuant to a plea agreement, the respondent pled guilty
to operating a motor vehicle while intoxicated, first offense,
and the driving while his license was revoked charge was
dismissed by the State. He was fined $1,250 and sentenced
to 2 days of incarceration, with credit for his time served in
Douglas County.
The amended formal charges allege that by his actions, the
respondent violated his oath of office as an attorney licensed
to practice law in the State of Nebraska as provided by stat-
ute, § 7-104, and violated disciplinary rule § 3-508.4(a) and
(b) (misconduct).
Count XII.
Count XII concerns the respondent’s representation of Debra
Harrison, the defendant in a civil case in Douglas County.
After the respondent’s license to practice law was adminis-
tratively suspended on June 7, 2021, the respondent failed to
inform his client or the court of his suspension, and he failed
to file a motion to withdraw. He also failed to deliver his cli-
ent’s case file to her.
The amended formal charges allege that by his actions,
the respondent violated his oath of office as an attorney
licensed to practice law in the State of Nebraska as provided
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STATE EX REL. COUNSEL FOR DIS. V. MAXELL
Cite as 314 Neb. 346by statute, § 7-104, and violated disciplinary rules §§ 3-501.4
(communications) and 3-508.4(a) and (d) (misconduct).
Count XIII.
Count XIII alleges that when the respondent’s license was
suspended on June 7, 2021, he had several open cases in which
he was attorney of record. However, the respondent failed to
notify each of his clients of his suspension, failed to deliver
the files to the respective clients, failed to notify the trial
courts and appellate courts of his suspension, and failed to file
a motion to withdraw in the respective cases.
The amended formal charges allege that by his actions, the
respondent violated his oath of office as an attorney licensed
to practice law in the State of Nebraska as provided by statute,
§ 7-104, and violated disciplinary rules §§ 3-501.4 (communi-
cations) and 3-508.4(a) and (d) (misconduct).
ANALYSIS
Neb. Ct. R. § 3-315 of the disciplinary rules provides in
pertinent part:
(A) Once a Grievance, a Complaint, or a Formal
Charge has been filed, suggested, or indicated against a
member, the member may voluntarily surrender his or
her license.
(1) The voluntary surrender of license shall state in
writing that the member knowingly admits or knowingly
does not challenge or contest the truth of the suggested
or indicated Grievance, Complaint, or Formal Charge
and waives all proceedings against him or her in connec-
tion therewith.
Pursuant to § 3-315 of the disciplinary rules, we find that the
respondent has voluntarily surrendered his license to practice
law and knowingly does not challenge or contest the truth of
the allegations made against him. Further, the respondent has
waived all proceedings against him in connection therewith.
We further find that the respondent has consented to the entry
of an order of disbarment.
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STATE EX REL. COUNSEL FOR DIS. V. MAXELL
Cite as 314 Neb. 346CONCLUSION
Upon due consideration, the court accepts the respondent’s
voluntary surrender of his license to practice law, finds that
the respondent should be disbarred, and hereby orders him
disbarred from the practice of law in the State of Nebraska,
effective immediately.
The respondent shall forthwith comply with all terms of
Neb. Ct. R. § 3-316 (rev. 2014) of the disciplinary court rules,
and upon failure to do so, he shall be subject to punishment
for contempt of this court. Accordingly, the respondent is
directed to pay costs and expenses in accordance with Neb.
Rev. Stat. §§ 7-114 and 7-115 (Reissue 2022) and Neb. Ct.
R. §§ 3-310(P) (rev. 2022) 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 disbarment.