State ex rel. Counsel for Dis. v. Wolfe , 301 Neb. 117 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/02/2018 09:12 AM CDT
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. WOLFE
Cite as 301 Neb. 117
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Tobin D. Wolfe, respondent.
___ N.W.2d ___
Filed September 21, 2018. No. S-18-437.
Original action. Judgment of suspension.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
INTRODUCTION
On May 2, 2018, formal charges containing 10 counts
were filed by the office of the Counsel for Discipline of the
Nebraska Supreme Court, relator, against respondent, Tobin D.
Wolfe. Respondent filed an answer to the charges on May 23.
A referee was appointed on June 4. The referee conducted a
hearing on July 24.
The referee filed a report on August 14, 2018. With respect
to the 10 charges, the referee concluded that through respond­
ent’s conduct, he had breached the following provisions of the
Nebraska Court Rules of Professional Conduct: Neb. Ct. R.
of Prof. Cond. §§ 3-501.1 (competence), 3-501.3 (diligence),
3-501.4 (communication), 3-501.5(f) (timely accounting for
fees), 3-501.16(d) (refunding fees on termination of repre-
sentation), 3-508.1(b) (responding to bar admission and dis-
ciplinary matters), and 3-508.4 (misconduct) (rev. 2016). The
referee further found that respondent had violated his oath of
office as an attorney licensed to practice law in the State of
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STATE EX REL. COUNSEL FOR DIS. v. WOLFE
Cite as 301 Neb. 117
Nebraska. See Neb. Rev. Stat. § 7-104 (Reissue 2012). With
respect to the discipline to be imposed, the referee recom-
mended suspension of respondent’s license to practice law
for a period of 2 years, commencing from the date of tempo-
rary suspension, November 6, 2017, followed by a period of
supervision of 2 years upon readmission. Respondent agreed
to the proposed sanction. Neither relator nor respondent filed
exceptions to the referee’s report. The parties filed a joint
motion for judgment on the pleadings under Neb. Ct. R.
§ 3-310(L) (rev. 2014) of the disciplinary rules. We grant the
motion for judgment on the pleadings and impose discipline
as indicated below.
FACTS
Respondent was admitted to the practice of law in the State
of Nebraska on April 23, 2013. At all times relevant to these
proceedings, he has practiced in Lincoln, Nebraska.
The substance of the referee’s findings may be summarized
as follows: Respondent has practiced law since 2013, includ-
ing family law, and on November 6, 2017, his license to prac-
tice law in Nebraska was temporarily suspended until further
order of this court. The violations arise from respondent’s
conduct with respect to 10 clients who filed grievances with
the Counsel for Discipline between April 3 and December 6,
2017. The pertinent facts are not in dispute in this case and
were admitted in respondent’s answer or acknowledged in
his testimony.
The referee held a hearing at which respondent testi-
fied and evidence was adduced. In a report filed August 14,
2018, the referee found that through respondent’s conduct,
he had breached provisions of the Nebraska Court Rules of
Professional Conduct as follows:
• With respect to count I, respondent engaged in misconduct
under § 3-508.4 by failing to provide a full accounting on
request under § 3-501.5(f), and failing to properly and timely
respond to the Counsel for Discipline under § 3-508.1(b).
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STATE EX REL. COUNSEL FOR DIS. v. WOLFE
Cite as 301 Neb. 117
• With respect to count II, respondent engaged in misconduct
under § 3-508.4 by failing to provide a full accounting under
§ 3-501.5(f), failing to timely refund unearned fees under
§ 3-501.16, failing to properly communicate with his cli-
ent as required by § 3-501.4, and failing to properly and
timely respond to the Counsel for Discipline in violation of
§ 3-508.1(b).
• With respect to count III, respondent engaged in misconduct
under § 3-508.4 by failing to properly communicate with his
client in violation of § 3-501.4, and failing to timely respond
to the Counsel for Discipline in violation of § 3-508.1(b).
• With respect to count IV, respondent engaged in misconduct
under § 3-508.4 by failing to properly communicate with his
client as required by § 3-501.4, failing to handle a matter
with the requisite level of competence and diligence required
by §§ 3-501.1 and 3-501.3, and failing to timely respond to
the Counsel for Discipline as required by § 3-508.1(b).
• With respect to count V, respondent engaged in misconduct
under § 3-508.4 by failing to properly communicate with his
clients in violation of § 3-501.4, failing to handle a matter
with the requisite level of competence and diligence required
by §§ 3-501.1 and 3-501.3, and failing to timely respond to
the Counsel for Discipline as required by § 3-508.1(b).
• With respect to count VI, respondent engaged in misconduct
under § 3-508.4 by failing to properly communicate with his
client in violation of § 3-501.4.
• With respect to count VII, respondent engaged in misconduct
under § 3-508.4 by failing to properly communicate with his
client in violation of § 3-501.4.
• With respect to count VIII, respondent engaged in miscon-
duct under § 3-508.4 by failing to properly communicate with
his client in violation of § 3-501.4, failing to timely furnish
an accounting for fees and costs as required by § 3-501.5(f),
and failing to return the client’s file upon termination when
requested.
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301 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. WOLFE
Cite as 301 Neb. 117
• With respect to count IX, respondent engaged in misconduct
under § 3-508.4 by failing to properly communicate with
his client in violation of § 3-501.4 and failing to timely
furnish an accounting for fees and costs as required by
§ 3-501.5(f).
• With respect to count X, respondent engaged in misconduct
under § 3-508.4 by failing to properly communicate with his
client in violation of § 3-501.4, failing to provide competent
representation required by § 3-501.1, and failing to act with
reasonable diligence as required by § 3-501.3.
The referee further found that with regard to each of the counts
enumerated above, respondent had violated his oath of office
as an attorney licensed to practice law in the State of Nebraska.
See § 7-104.
With respect to the discipline to be imposed, the referee
recommended suspension of respondent’s license to practice
law for a period of 2 years, commencing from the date of tem-
porary suspension, November 6, 2017, followed by a period of
supervision of 2 years upon readmission. The referee noted in
her report that respondent had no prior instances of miscon-
duct or discipline.
In mitigation, respondent presented evidence from medi-
cal providers and testified that he began suffering a major
depressive episode in late 2016 from a mental health condition
which had been previously undiagnosed. The referee found
that respondent established that his symptoms played a sig-
nificant role in his conduct and found that ongoing treatment
and adherence to respondent’s health maintenance plan would
reduce the risk of further misconduct.
ANALYSIS
A proceeding to discipline an attorney is a trial de novo
on the record. State ex rel Counsel for Dis. v. Gast, 298 Neb.
203, 903 N.W.2d 259 (2017). To sustain a charge in a discipli­
nary proceeding against an attorney, a charge must be estab-
lished by clear and convincing evidence. State ex rel. Counsel
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STATE EX REL. COUNSEL FOR DIS. v. WOLFE
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for Dis. v. Island, 296 Neb. 624, 894 N.W.2d 804 (2017).
Violation of a disciplinary rule concerning the practice of law
is a ground for discipline. Id.
Based on the record and the undisputed findings of the
referee, we find that the above-referenced facts have been
established by clear and convincing evidence. Based on the
foregoing evidence, we conclude that by virtue of respond­
ent’s conduct, respondent has violated §§ 3-501.1, 3-501.3,
3-501.4(a)(3) and (4), 3-501.5(f), 3-501.16(d), 3-508.1(b), and
3-508.4(a) and (d) of the professional conduct rules. We specif-
ically conclude that respondent has violated his oath of office
as an attorney, see § 7-104. Accordingly, we grant the parties
joint motion for judgment on the pleadings.
We have stated that the basic issues in a disciplinary pro-
ceeding against a lawyer are whether discipline should be
imposed, and, if so, the type of discipline appropriate under
the circumstances. State ex rel. Counsel for Dis. v. Island,
supra. Neb. Ct. R. § 3-304 of the disciplinary rules provides
that the following may be considered as discipline for attor-
ney misconduct:
(A) Misconduct shall be grounds for:
(1) Disbarment by the Court; or
(2) Suspension by the Court; or
(3) Probation by the Court in lieu of or subsequent to
suspension, on such terms as the Court may designate; or
(4) Censure and reprimand by the Court; or
(5) Temporary suspension by the Court; or
(6) Private reprimand by the Committee on Inquiry or
Disciplinary Review Board.
(B) The Court may, in its discretion, impose one or
more of the disciplinary sanctions set forth above.
See, also, § 3-310(N) of the disciplinary rules.
With respect to the imposition of attorney discipline in an
individual case, we evaluate each attorney discipline case in
light of its particular facts and circumstances. State ex rel.
Counsel for Dis. v. Island, supra. For purposes of determining
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STATE EX REL. COUNSEL FOR DIS. v. WOLFE
Cite as 301 Neb. 117
the proper discipline of an attorney, this court considers the
attorney’s acts both underlying the events of the case and
throughout the proceeding, as well as any aggravating or miti-
gating factors. Id.
To determine whether and to what extent discipline should
be imposed in an attorney 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 generally, and (6) the
offender’s present or future fitness to continue in the practice
of law. Id. We have considered prior discipline including rep-
rimands as aggravators. State ex rel. Counsel for Dis. v. Nich,
279 Neb. 533, 780 N.W.2d 638 (2010).
The evidence in the present case establishes there were
10 separate grievances involving a wide range of miscon-
duct, including failing to communicate with clients, failing
to diligently complete work, failing to properly account for
fees, failing to return client files following termination, and
misstatements. When contacted by relator, respondent initially
failed to respond for approximately 8 months following the
initial grievance.
With respect to the discipline to be imposed, the referee
recommended suspension of respondent’s license to practice
law for a period of 2 years, commencing from the date of
temporary suspension, November 6, 2017, followed by a
period of supervised probation of 2 years upon readmission.
The referee compared the level of misconduct to that pre-
sented in State ex rel. Counsel for Dis. v. Simon, 288 Neb.
385, 848 N.W.2d 642 (2014). The respondent in Simon had
nine counts of misconduct and a mental health issue, and this
court imposed an indefinite suspension with no possibility for
reinstatement for 14 months, followed by 2 years of probation
with monitoring.
We have considered the record, the findings which have
been established by clear and convincing evidence, and the
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STATE EX REL. COUNSEL FOR DIS. v. WOLFE
Cite as 301 Neb. 117
applicable law. Upon due consideration, the court finds that
the referee’s recommendation is appropriate and adopts a
2-year suspension, commencing from November 6, 2017, fol-
lowed by a period of monitored probation of 2 years upon
readmission. See id. As noted, no exceptions have been taken
to this recommendation.
Respondent shall comply with Neb. Ct. R. § 3-316 (rev.
2014), and upon failure to do so, he shall be subject to pun-
ishment for contempt of this court. We also direct respondent
to pay costs and expenses in accordance with Neb. Rev. Stat.
§§ 7-114 and 7-115 (Reissue 2012), § 3-310(P), and Neb. Ct.
R. § 3-323(B) within 60 days after an order imposing costs and
expenses, if any, is entered by this court.
At the end of the 2-year suspension, respondent may apply
to be reinstated to the practice of law, provided that he has
demonstrated his compliance with § 3-316 and further pro-
vided that relator has not notified this court that respondent
has violated any disciplinary rule during his suspension. Upon
his application for reinstatement, respondent should have the
burden of establishing that he is fit to practice law under the
terms of his probation, including that treatment for his depres-
sion has resulted in a meaningful and sustained recovery. Such
proof shall include a showing that he has continued treat-
ment with a qualified mental health doctor, unless such doc-
tor releases respondent from treatment. Upon reinstatement,
respondent shall complete 2 years of monitored probation.
During the period of probation, respondent will be moni-
tored by an attorney licensed to practice law in the State of
Nebraska and approved by relator. The monitoring plan shall
include but not be limited to the following:
(1) During probation, respondent shall be subject to a treat-
ment monitoring program by the Nebraska Lawyers Assistance
Program and a practice monitoring program, which should be
monitored by a licensed practicing attorney who is acceptable
to the Counsel for Discipline.
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STATE EX REL. COUNSEL FOR DIS. v. WOLFE
Cite as 301 Neb. 117
(2) Respondent should comply with treatment recommen-
dations of his treating doctor as monitored by the Nebraska
Lawyers Assistance Program. If at any time the assistance
program believes that respondent has failed to comply with his
treatment requirements, it shall report the same to the Counsel
for Discipline.
(3) On a monthly basis, respondent shall provide the moni-
toring attorney with a list of all cases for which respondent is
then currently responsible, said list to include the following
information for each case: (a) the date the attorney-client rela-
tionship began; (b) the type of case (i.e., criminal, dissolution,
probate, contract, et cetera); (c) the date of the last contact
with the client; (d) the last date and type of work completed
on the case; (e) the next type of work and date to be completed
on the case; and (f) any applicable statute of limitations and
its date.
(4) If at any time the monitoring attorney believes respond­
ent has violated a disciplinary rule or has failed to comply
with the terms of probation, the monitoring attorney shall
report the same to relator.
CONCLUSION
The motion for judgment on the pleadings is granted. We
find that respondent violated §§ 3-501.1, 3-501.3, 3-501.4,
3-501.5(f), 3-501.16(d), 3-508.1(b), and 3-508.4 and his oath
of office as an attorney, see § 7-104. It is the judgment of
this court that respondent is suspended from the practice of
law for a period of 2 years, effective November 6, 2017. It is
the further judgment of this court that upon completion of the
period of suspension and reinstatement to the bar, respondent
shall be placed on monitored probation for 2 years, subject to
the terms set forth above. Respondent is also directed to pay
costs and expenses in accordance with §§ 7-114 and 7-115
and §§ 3-310(P) and 3-323(B) of the disciplinary rules within
60 days after an order imposing costs and expenses, if any, is
entered by the court.
Judgment of suspension.