State ex rel. Counsel for Dis. v. Birch , 309 Neb. 79 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/25/2021 12:09 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. BIRCH
Cite as 309 Neb. 79State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Dwaine L. Birch, respondent.
___ N.W.2d ___
Filed April 23, 2021. No. S-20-891.
Original action. Judgment of suspension.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
INTRODUCTION
On December 16, 2020, formal charges containing seven
counts were filed by the office of the Counsel for Discipline of
the Nebraska Supreme Court, the relator, against the respond­
ent, Dwaine L. Birch. The respondent filed an answer to the
charges on February 12, 2021. The respondent admits the
facts in the formal charges. On February 22, the relator filed
a response to the respondent’s answer, stating that “[a] 45-day
suspension followed by a 2-year term of monitored probation
. . . would be appropriate and consistent.” The respondent
stated that he is willing to accept the suggested discipline rec-
ommended by the relator. Pursuant to Neb. Ct. R. § 3-310(I)
(rev. 2019), which permits the court to dispose of the matter
on its own motion where no issue of fact or law is raised, we
impose a suspension for a period of 45 days, followed by 2
years of monitored probation.
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309 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. BIRCH
Cite as 309 Neb. 79FACTS
The respondent was admitted to the practice of law in the
State of Nebraska on April 26, 1993. At all times relevant to
these proceedings, he has practiced law as a solo practitioner
in Burwell, Nebraska.
The misconduct set forth in the seven counts of the for-
mal charges began in December 2015 and continued through
April 2020. Each count arises from the respondent’s neglect
of estate proceedings: six in Garfield County, Nebraska, and
one in Loup County, Nebraska. The respondent opened the
respective estates, but then failed to move the cases forward
despite repeated notices from the court and clerk magistrate.
Further, the respondent continued to neglect the cases after
the relator informed the respondent that the investigations into
the neglect had been upgraded to formal grievances due to
the respondent’s failure to move the estates forward. In each
count, the respondent is charged with violating Neb. Ct. R. of
Prof. Cond. §§ 3-501.1 (rev. 2017) (competence), 3.501.3 (dili-
gence), and 3-508.4(a) and (d) (rev. 2016) (conduct prejudicial
to administration of justice), as well as his oath of office as
an attorney.
In his answer, the respondent admitted to the allegations
listed in the formal charges and acknowledged that he did
not serve his clients in a timely and professional manner.
The respondent did not suggest that his neglect of the estates
was due to any mitigating circumstances. In response to the
respond­ent’s answer, the relator recommended a 45-day sus-
pension with 2 years of monitored probation upon reinstate-
ment. The respondent did not object to the recommended dis-
cipline and states he is willing to accept a 45-day suspension
followed by a period of 2 years of monitored probation.
ANALYSIS
A proceeding to discipline an attorney is a trial de novo
on the record. Counsel for Dis. v. Gast, 298 Neb. 203, 903
N.W.2d 259 (2017). To sustain a charge in a disciplinary
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STATE EX REL. COUNSEL FOR DIS. v. BIRCH
Cite as 309 Neb. 79proceeding against an attorney, a charge must be established
by clear and convincing evidence. Counsel for Dis. v. Island,
296 Neb. 624, 894 N.W.2d 804 (2017). Violation of a disci-
plinary rule concerning the practice of law is a ground for
discipline. Id.Based on the record and the undisputed facts, we find that
the above-referenced facts have been established by clear and
convincing evidence. Based on the foregoing evidence, we con-
clude that by virtue of the respondent’s conduct, the respond­ent
has violated §§ 3-501.1, 3.501.3, and 3-508.4(a) and (d) of the
professional conduct rules. We specifically conclude that the
respondent has violated his oath of office as an attorney. See
Neb. Rev. Stat. § 7-104 (Reissue 2012). We further conclude
that discipline should be imposed.
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. See 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 attorney 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. See Counsel for
Dis. v. Island, supra. For purposes of determining the proper
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STATE EX REL. COUNSEL FOR DIS. v. BIRCH
Cite as 309 Neb. 79discipline of an attorney, we consider the attorney’s acts both
underlying the events of the case and throughout the proceed-
ing, as well as any aggravating or mitigating factors. Id.To determine whether and to what extent discipline should
be imposed in an attorney discipline proceeding, we consider
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 atti-
tude of the offender generally, and (6) the respondent’s present
or future fitness to continue in the practice of law. Id. We have
considered prior discipline, including reprimands, as aggrava-
tors. See State ex rel. Counsel for Dis. v. Nich, 279 Neb. 533,
780 N.W.2d 638 (2010).
With respect to the discipline to be imposed, the relator rec-
ommended suspension of the respondent’s license to practice
law for a period of 45 days, followed by a 2-year term of moni-
tored probation. The relator compared the level of misconduct
to that presented in State ex rel. Counsel for Dis. v. Troshynski,
300 Neb. 763, 916 N.W.2d 57 (2018). The respondent in
Troshynski, who was also a solo practitioner, was charged with
neglecting two personal injury cases. We imposed a suspension
for a period of 45 days, followed by 2 years of probation and
monitoring. Id.As noted in his “Reply to Relator’s Response,” the respond­
ent does not object to the relator’s recommended discipline;
the respondent states that he is willing to accept the suggested
discipline and that he “would welcome the involvement of a
monitoring attorney.”
The uncontested charges are that the respondent neglected
seven estate proceedings over several years. He failed to
advance cases even after he was contacted by the relator. We
have considered the uncontested allegations and the applicable
law. Upon due consideration, the court finds that the relator’s
recommendation of a 45-day suspension followed by 2 years of
monitored probation is appropriate. See State ex rel. Counsel
for Dis. v. Troshynski, supra. The respondent shall comply
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STATE EX REL. COUNSEL FOR DIS. v. BIRCH
Cite as 309 Neb. 79with the notification requirements of Neb. Ct. R. § 3-316 (rev.
2014), and upon failure to do so, he shall be subject to punish-
ment for contempt of this court. We also direct the 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) of the disciplinary rules within 60 days after
an order imposing costs and expenses, if any, is entered by
this court.
At the end of the 45-day suspension, the respondent may
apply to be reinstated to the practice of law, provided that he
has demonstrated his compliance with § 3-316 and further
provided that the relator has not notified this court that the
respondent has violated any disciplinary rule during his sus-
pension. Upon reinstatement, the respondent shall complete 2
years of monitored probation. During the period of probation,
the respondent will be monitored by an attorney licensed to
practice law in the State of Nebraska and approved by the rela-
tor. The monitoring plan shall include, but not be limited to,
the following:
(1) On a monthly basis, the respondent shall provide the mon-
itoring attorney with a list of all cases for which the 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;
(2) On a monthly basis, the respondent shall meet with the
monitoring attorney to discuss the respondent’s pending cases;
(3) The respondent shall work with the monitoring attorney
to develop and implement appropriate office procedures to
ensure that client matters are handled in a timely manner; and
(4) If at any time the monitoring attorney believes the
respondent has violated a disciplinary rule or has failed to
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STATE EX REL. COUNSEL FOR DIS. v. BIRCH
Cite as 309 Neb. 79comply with the terms of probation, the monitoring attorney
shall report the same to the relator.
CONCLUSION
We find that the respondent violated §§ 3-501.1, 3.501.3, and
3-508.4(a) and (d), as well as his oath of office as an attorney,
see § 7-104. It is the judgment of this court that the respondent
is suspended from the practice of law for a period of 45 days,
effective immediately. It is the further judgment of this court
that upon completion of the period of suspension, the respond­
ent may be reinstated to the bar, provided that the respondent
has demonstrated that he has secured an attorney monitor who
will supervise his monitored probation for 2 years, subject to
the terms set forth above.
Judgment of suspension.