State ex rel. Counsel for Dis. v. Tighe , 295 Neb. 30 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/28/2016 09:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. TIGHE
Cite as 295 Neb. 30
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. David W. Tighe, respondent.
___ N.W.2d ___
Filed October 28, 2016. Nos. S-14-685, S-16-130.
1. Disciplinary Proceedings. Violation of a disciplinary rule concerning
the practice of law is a ground for discipline.
2. ____. The basic issues in a disciplinary proceeding against a lawyer are
whether discipline should be imposed and, if so, the type of discipline
appropriate under the circumstances.
3. ____. To determine whether and to what extent discipline should be
imposed in a lawyer discipline proceeding, this court considers the fol-
lowing factors: (1) the nature of the offense, (2) the need for deterring
others, (3) the maintenance of the reputation of the bar as a whole, (4)
the protection of the public, (5) the attitude of the offender generally,
and (6) the offender’s present or future fitness to continue in the practice
of law.
4. ____. Cumulative acts of attorney misconduct are distinguishable from
isolated incidents, therefore justifying more serious sanctions.
5. ____. The propriety of a sanction must be considered with reference to
the sanctions imposed in prior similar cases.
Original actions. 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.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. TIGHE
Cite as 295 Neb. 30
Per Curiam.
INTRODUCTION
The Counsel for Discipline of the Nebraska Supreme Court
filed a motion for reciprocal discipline and formal charges
against David W. Tighe, docketed as cases Nos. S-14-685 and
S-16-130. These cases were consolidated for purposes of brief-
ing, oral argument, and disposition.
Tighe is a member of the Nebraska State Bar Association
and practices law in Omaha, Nebraska. In 2014, Tighe was
suspended from practicing before the U.S. Bankruptcy Court
and the U.S. District Court for the District of Nebraska.
Following Tighe’s failure to respond to an order to show
cause entered by this court, Tighe was temporarily suspended
from the practice of law in Nebraska. This case is docketed at
No. S-14-685.
In addition, formal charges were filed in the case docketed
at No. S-16-130. Tighe filed an answer admitting the allega-
tions. We granted the Counsel for Discipline’s motion for
judgment on the pleadings and ordered the parties to brief the
issue of the appropriate discipline to impose. We also ordered
consolidation of cases Nos. S-14-685 and S-16-130.
We now order that Tighe be indefinitely suspended from the
practice of law.
BACKGROUND
The facts alleged in the formal charges are uncontested by
Tighe. Tighe was admitted to the practice of law in the State
of Nebraska on December 14, 2007. He is engaged in the pri-
vate practice of law in Omaha and is under the jurisdiction of
the Committee on Inquiry of the Second Judicial District. This
case is composed of two consolidated cases, Nos. S-14-685
and S-16-130, initiated by the Counsel for Discipline against
Tighe. These cases were consolidated for purposes of briefing,
oral argument, and disposition.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. TIGHE
Cite as 295 Neb. 30
Count I
In 2013, Tighe represented Ellen Miller in the U.S.
Bankruptcy Court for the District of Nebraska. As a result
of Tighe’s failure to file necessary documents, Miller’s bank-
ruptcy case was closed without discharge, despite the fact that
Miller had fulfilled all of the terms of her chapter 13 plan.
In 2014, Miller learned that she did not receive her dis-
charge, because creditors began contacting her again. Pursuant
to her own investigation, Miller learned that Tighe had not
filed a “Certification by Debtor in Support of Discharge.”
On March 28, Miller filed a pro se motion to reopen her
bankruptcy case and included allegations of Tighe’s deficient
representation. The U.S. Bankruptcy Court judge granted
Miller’s motion and issued an order to Tighe, directing him to
respond to Miller’s allegations by May 11. After Tighe failed to
respond to this order, the bankruptcy court issued a show cause
order. Tighe was later suspended from practice before the U.S.
Bankruptcy Court.
Thereafter, the U.S. District Court for the District of
Nebraska issued an order to show cause as to why that court
should not enter a reciprocal order. On July 28, 2014, that
court issued an order suspending Tighe from practicing law
before the U.S. District Court until further order of the court,
because Tighe’s response addressed neither the basis for the
suspension imposed by the bankruptcy court nor the district
court’s inquiries.
On July 29, 2014, the Counsel for Discipline filed a motion
for reciprocal discipline with the Nebraska Supreme Court.
On September 10, this court issued an order to show cause
as to why we should or should not enter an order imposing
the identical discipline, or greater or less discipline, as we
deemed appropriate. This court’s order to show cause was
mailed to Tighe on September 10. The mail was returned
as unclaimed.
On July 15, 2015, the Counsel for Discipline delivered to
Tighe a copy of the order to show cause, which Tighe signed.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. TIGHE
Cite as 295 Neb. 30
On July 17, the Counsel for Discipline filed its response to
the order to show cause, asking the court not to enter an order
of reciprocal discipline, but, rather, to direct the Counsel for
Discipline to investigate the facts underlying the indefinite
suspension order issued by the federal district court. On July
29, Tighe sent an e-mail to the Counsel for Discipline with
his response to the order to show cause. The Counsel for
Discipline notified Tighe that his response was inadequate and
that he must either file a response with this court or mail a
copy to the Counsel for Discipline. Tighe failed to do so.
On August 5, 2015, the Counsel for Discipline sent a letter
to Tighe directing him to answer specific questions regarding
his handling of Miller’s bankruptcy and the orders to show
cause issued by the U.S. Bankruptcy Court and U.S. District
Court. Tighe failed to comply with either of those requests.
On October 26, 2015, the Counsel for Discipline filed
his report and sent a copy to Tighe. On November 25, the
Nebraska Supreme Court issued an order suspending Tighe
from the practice of law until further order of the court.
Counts II and III
In 2013, Tighe represented William Harris in two felony
criminal matters—one in Douglas County, Nebraska, and one
in Sarpy County, Nebraska. Harris entered pleas in both cases
and was sentenced to lengthy prison terms.
On May 1, 2014, Harris filed a grievance with the Counsel
for Discipline against Tighe, alleging that Tighe had failed to
provide Harris with multiple documents from Harris’ file. On
May 27, Tighe submitted his response to Harris’ grievance.
On June 4, 2014, Harris submitted to the Counsel for
Discipline his reply to Tighe’s response, and asserted that
Tighe still had not provided him with specific documents
related to his criminal case. On June 9, Tighe was directed to
submit an additional written response specifically addressing
the issues raised in Harris’ reply. Tighe failed to respond to the
Counsel for Discipline.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. TIGHE
Cite as 295 Neb. 30
On July 18, 2014, the Counsel for Discipline sent a followup
letter to Tighe. Tighe failed to respond to the followup letter as
well. On August 13, the Counsel for Discipline upgraded the
matter to a formal investigation. The Counsel for Discipline
sent a certified letter to Tighe, directing him to file a response
to Harris’ grievance within 15 working days. Tighe signed
the certified mail receipt, but failed to respond to the Counsel
for Discipline.
In 2013 and 2014, Tighe represented Clarence Alspaugh in a
felony case in Douglas County. Alspaugh entered a plea in the
criminal case and was sentenced to a lengthy prison term.
On September 29, 2014, Alspaugh filed a grievance with the
Counsel for Discipline against Tighe, alleging that Tighe had
failed to provide him with multiple documents from his file. A
copy of Alspaugh’s grievance letter was mailed to Tighe. Tighe
failed to respond to the Counsel for Discipline.
On July 15, 2015, Tighe met with the Counsel for Discipline.
Tighe signed a receipt acknowledging receipt of a letter from
the Counsel for Discipline directing Tighe to file a written
response to Harris’ grievance and Alspaugh’s grievance within
15 working days. On July 29, Tighe submitted his response
to Harris’ grievance, stating that he had provided every docu-
ment to Harris. On the same date, Tighe filed his response to
Alspaugh’s grievance letter; however, Tighe did not respond to
or address all of Alspaugh’s allegations.
On August 4, 2015, the Counsel for Discipline sent a let-
ter to Tighe, directing him to respond to Alspaugh’s specific
allegations. As of January 15, 2016, Tighe had not submitted a
response to the letter.
On August 19, 2015, Harris submitted his reply, claiming
there were still a number of documents that he believed Tighe
had in his possession which Harris had not yet received. That
same day, the Counsel for Discipline sent a letter to Tighe ask-
ing him to respond within 14 days to specific questions related
to Harris’ requests for documents. As of January 15, 2016,
Tighe had not responded to the letter.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. TIGHE
Cite as 295 Neb. 30
Tighe did not file a brief or appear at oral argument in
these consolidated appeals. At oral argument, the Counsel
for Discipline stated he did not know the underlying circum-
stances which led to Tighe’s behavior resulting in the discipli­
nary hearing.
ASSIGNMENT OF ERROR
The only question before this court is the appropriate
discipline.
ANALYSIS
This court granted the Counsel for Discipline’s motion for
judgment on the pleadings because Tighe did not file any
exceptions.
[1-5] Violation of a disciplinary rule concerning the practice
of law is a ground for discipline.1 The basic issues in a dis-
ciplinary proceeding against a lawyer are whether discipline
should be imposed and, if so, the type of discipline appropriate
under the circumstances.2 To determine whether and to what
extent discipline should be imposed in a lawyer discipline
proceeding, this court considers the following factors: (1) the
nature of the offense, (2) the need for deterring others, (3) the
maintenance of the reputation of the bar as a whole, (4) the
protection of the public, (5) the attitude of the offender gener-
ally, and (6) the offender’s present or future fitness to continue
in the practice of law.3 Cumulative acts of attorney mis-
conduct are distinguishable from isolated incidents, therefore
justifying more serious sanctions.4 Responding to disciplinary
1
State ex rel. Counsel for Dis. v. Hart, 265 Neb. 649, 658 N.W.2d 632
(2003).
2
State ex rel. Counsel for Dis. v. Widtfeldt, 269 Neb. 289, 691 N.W.2d 531
(2005).
3
State ex rel. Counsel for Dis. v. Hart, supra note 1.
4
State ex rel. Counsel for Dis. v. Sundvold, 287 Neb. 818, 844 N.W.2d 771
(2014).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. TIGHE
Cite as 295 Neb. 30
complaints in an untimely manner and repeatedly ignoring
requests for information from the Counsel for Discipline of
the Nebraska Supreme Court indicate a disrespect for our dis-
ciplinary jurisdiction and a lack of concern for the protection
of the public, the profession, and the administration of justice.5
In evaluating attorney discipline cases, we consider aggravat-
ing and mitigating circumstances.6 The propriety of a sanction
must be considered with reference to the sanctions we have
imposed in prior similar cases.7
The Counsel for Discipline argues that Tighe’s acts and
omissions in relation to his representation of Miller constitute
violations of his oath of office as an attorney licensed to prac-
tice law in the State of Nebraska as provided by 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 (com-
munications), 3-508.1 (bar admission and disciplinary mat-
ters), and 3-508.4 (misconduct). The Counsel for Discipline
further argues that Tighe’s acts and omissions in relation to
his representation of Harris and Alspaugh constitute violations
of his oath of office as an attorney licensed to practice law
in the State of Nebraska as provided by § 7-104 and conduct
rules §§ 3-501.4(a)(4), 3-508.1(b), and 3-508.4(a) and (d).
Tighe admits that he violated the sections of the Nebraska
Court Rules of Professional Conduct as listed. Accordingly,
the Counsel for Discipline contends that a minimum 1-year
suspension is appropriate for Tighe, because he failed to
respond to inquiries from the Counsel for Discipline regarding
these clients’ grievances. In addition, Counsel for Discipline
recommends at least a 2-year period of probation following
the suspension.
5
State ex rel. Counsel for Dis. v. Sutton, 269 Neb. 640, 694 N.W.2d 647
(2005).
6
State ex rel. Counsel for Dis. v. Ellis, 283 Neb. 329, 808 N.W.2d 634
(2012).
7
State ex rel. NSBA v. Rothery, 260 Neb. 762, 619 N.W.2d 590 (2000).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. TIGHE
Cite as 295 Neb. 30
This court was faced with a similar situation of attorney
misconduct in State ex rel. Counsel for Dis. v. Sutton.8 In
that case, John I. Sutton failed to respond to the Counsel for
Discipline’s grievance letter and a followup letter and failed
to file an answer to the formal charges. He was suspended
from the practice of law at the time of the hearing. This court
reasoned that “given the lack of information that we have
regarding (1) the nature and extent of the present misconduct
and (2) Sutton’s present or future fitness to practice law,”
indefinite suspension was “more appropriate at this juncture
and will serve as adequate protection for the public.”9 In addi-
tion, this court held that “[s]hould Sutton apply for reinstate-
ment in the future, he will need to fully answer for the current
charges of neglect and failing to respond to the Counsel for
Discipline, and demonstrate a present and future fitness to
practice law . . . .”10
In addition, this court held in State ex rel. NSBA v. Simmons,11
that indefinite suspension was appropriate for an attorney who
failed to file a brief resulting in the dismissal of a client’s case
without leave to amend. Furthermore, the attorney, Baiba D.
Simmons, did not communicate the dismissal to her clients;
the clients independently learned of the dismissal. Simmons
did not respond to clients’ requests, nor did she respond to
numerous attempts by the Counsel for Discipline to con-
tact her.12 This court reasoned that “a failure to make timely
responses to inquiries of the Counsel for Discipline such as
that exhibited by Simmons herein violates ethical canons and
disciplinary rules which prohibit conduct prejudicial to the
8
State ex rel. Counsel for Dis. v. Sutton, supra note 5.
9
State ex rel. Counsel for Dis. v. Sutton, supra note 5, 269 Neb. at 643, 694
N.W.2d at 651.
10
Id.
11
State ex rel. NSBA v. Simmons, 259 Neb. 120, 608 N.W.2d 174 (2000).
12
Id.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. TIGHE
Cite as 295 Neb. 30
administration of justice and conduct adversely reflecting on
the fitness to practice law.”13 Therefore, Simmons was indefi-
nitely suspended from the practice of law in Nebraska and
would only be reinstated upon “a showing which demonstrates
her fitness to practice law.”14
Tighe failed to respond to numerous attempts made by the
Counsel for Discipline to contact him concerning multiple
clients’ complaints. In addition, Tighe failed to respond to
requests from the U.S. Bankruptcy Court, the U.S. District
Court, and the Nebraska Supreme Court, which resulted in
Tighe’s indefinite suspension from practicing law before the
Nebraska federal courts and this court. Tighe has not claimed
any mitigating circumstances as to why he did not respond to
nearly all of the requests from the Counsel for Discipline and
the courts.
Similar to Simmons, Tighe’s acts and omissions led to the
delay of a client’s case as a result of his incompetent repre-
sentation, lack of communication, and misconduct. Due to
Tighe’s failure to file a certification by debtor in support of
discharge as required by the bankruptcy court’s local rules,
Neb. R. Bankr. P. 3015-2(N) (2014), Miller’s bankruptcy case
was closed without discharge, despite the fact that Miller
had fulfilled all terms of her chapter 13 plan. There is no
evidence in the record that Tighe notified Miller of this fail-
ure. Rather, the charges admitted to by Tighe indicate that
Miller discovered she did not receive her discharge only
when creditors began contacting her again. And it was only
through her own investigation that Miller learned Tighe had
not filed the certification. Tighe’s failure to work competently
and his failure to communicate with Miller, the courts, and
the Counsel for Discipline nonetheless indicate Tighe’s “con-
duct prejudicial to the administration of justice and conduct
13
Id. at 123, 608 N.W.2d at 177.
14
Id.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. TIGHE
Cite as 295 Neb. 30
adversely reflecting on the fitness to practice law.”15 This is
compounded by Tighe’s failure to respond to requests from
Harris, Alspaugh, and the Counsel for Discipline in connection
with the other two grievances.
The reason for Tighe’s misconduct is unknown. Accordingly,
this court cannot determine Tighe’s present or future fitness to
practice law. Tighe’s behavioral issues in regard to his lack of
communication with his clients, the Counsel for Discipline,
and the courts indicate that he needs to prove he is fit to prac-
tice law and that he has made “behavioral changes that will
allow him to practice law within the disciplinary rules.”16
We hold that Tighe be indefinitely suspended from the prac-
tice of law. Upon application for reinstatement, Tighe shall
fully answer for the current charges of neglect and failing
to respond to his clients, the Counsel for Discipline, and the
courts, and shall also have the burden to demonstrate his pres-
ent and future fitness to practice law.
CONCLUSION
We order that Tighe be indefinitely suspended from the
practice of law, effective immediately. Tighe may apply for
reinstatement consistent with the terms outlined above. Tighe
shall comply with Neb. Ct. R. § 3-316 (rev. 2014), and upon
failure to do so, he shall be subject to punishment for contempt
of this court. Tighe is directed to pay costs and expenses in
accordance with Neb. Rev. Stat. §§ 7-114 and 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.
15
See id.
16
See State ex rel. Counsel for Dis. v. Widtfeldt, supra note 2, 269 Neb. at
294, 691 N.W.2d at 536.