State ex rel. Counsel for Dis. v. Fraizer , 297 Neb. 496 ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/03/2017 09:14 AM CDT
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. FRAIZER
Cite as 297 Neb. 496
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Theodore D. Fraizer, respondent.
___ N.W.2d ___
Filed August 11, 2017. No. S-17-432.
Original action. Judgment of public reprimand.
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 admis-
sion filed by Theodore D. Fraizer, respondent, on May 25,
2017. The court accepts respondent’s conditional admission
and enters an order of public reprimand.
FACTS
Respondent was admitted to the practice of law in the State
of Nebraska on September 12, 1979. At all relevant times, he
was engaged in the practice of law in Lincoln, Nebraska.
On April 25, 2017, the Counsel for Discipline of the
Nebraska Supreme Court filed formal charges against
respondent. The formal charges consist of one count against
respondent arising from his appointment as successor
trustee of a trust created from the assets of the estate of
Martin Buschkamp. The formal charges state that on May
3, 2006, Martin Buschkamp died. Respondent filed an estate
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. FRAIZER
Cite as 297 Neb. 496
proceeding in the county court for Lancaster County,
Nebraska, on May 12. The Buschkamp estate was closed in
May 2009, and the remaining assets were transferred to the
Martin Buschkamp Trust (“Buschkamp Trust”). In August
2013, respondent accepted an appointment as successor trustee
of the Buschkamp Trust.
At some point, a beneficiary of the Buschkamp Trust
filed a grievance against respondent with the Council for
Discipline alleging that respondent failed to timely conclude
all matters related to the Buschkamp Trust and failed to
make a timely distribution of its remaining assets. In his
response to the grievance, respondent acknowledged that he
had not been diligent in finalizing the Buschkamp Trust mat-
ters, and he stated, “[The beneficiary] is correct that I have
let the remaining aspects of the matter linger too long. .
. .” He stated that he would be responsible for any interest
or penalties.
Respondent ultimately completed the matters related to the
Buschkamp estate and the Buschkamp Trust. All funds were
distributed to the beneficiaries.
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.
§§ 3-501.3 (diligence) and 3-508.4 (misconduct).
On May 25, 2017, respondent filed a conditional admis-
sion pursuant to Neb. Ct. R. § 3-313(B) of the disciplinary
rules, in which he conditionally admitted that he violated
his oath of office as an attorney and professional conduct
rules §§ 3-501.3 and 3-508.4(a). In the conditional admission,
respondent knowingly does not challenge or contest the truth
of the matters conditionally asserted and waived all proceed-
ings against him in exchange for a public reprimand.
The proposed conditional admission included a declara-
tion by the Counsel for Discipline, stating that respond­
ent’s proposed discipline is appropriate and consistent with
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. FRAIZER
Cite as 297 Neb. 496
sanctions imposed in other disciplinary cases with similar
acts of misconduct.
ANALYSIS
Section 3-313, which is a component of our rules governing
procedures regarding attorney discipline, provides in perti-
nent part:
(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 admis-
sion, we find that respondent knowingly does not challenge
or contest the matters conditionally admitted. We further
determine that by his conduct, respondent violated conduct
rules §§ 3-501.3 and 3-508.4 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.
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. FRAIZER
Cite as 297 Neb. 496
CONCLUSION
Respondent is publically reprimanded. Respondent is
directed to pay costs and expenses in accordance with 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 public reprimand.