State ex rel. Counsel for Dis. v. Nelson

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/27/2022 01:07 AM CDT
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Nebraska Supreme Court Advance Sheets
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STATE EX REL. COUNSEL FOR DIS. v. NELSON
Cite as 311 Neb. 251State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Patrick J. Nelson, respondent.
___ N.W.2d ___
Filed March 25, 2022. No. S-21-475.
1. Disciplinary Proceedings. The basic issues in a disciplinary proceeding
against an attorney are whether discipline should be imposed and, if so,
the appropriate discipline under the circumstances.
2. ____. To determine whether and to what extent discipline should be
imposed in an attorney discipline proceeding, the Nebraska Supreme
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
respondent generally, and (6) the respondent’s present or future fitness
to continue in the practice of law.
3. ____. Ordinarily, cumulative acts of attorney misconduct and repeated
disregard of requests for information from the Counsel for Discipline
will appropriately lead to disbarment.
4. ____. Responding to disciplinary 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 the
Supreme Court’s disciplinary jurisdiction and a lack of concern for pro-
tecting the public, the profession, and the administration of justice.
5. ____. For purposes of determining the proper discipline of an attorney,
the Nebraska Supreme Court considers the attorney’s acts, both underly-
ing the events of the case and throughout the proceeding, as well as any
aggravating or mitigating factors.
6. ____. Responding to inquiries and requests for information from the
Counsel for Discipline is an important matter, and an attorney’s coopera­
tion with the discipline process is fundamental to the credibility of attor-
ney disciplinary proceedings.
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STATE EX REL. COUNSEL FOR DIS. v. NELSON
Cite as 311 Neb. 2517. ____. An attorney’s continuing to practice law contrary to a temporary
suspension order is an independent basis for disbarment from the prac-
tice of law.
8. ____. The purpose of a disciplinary proceeding against an attorney is not
so much to punish the attorney as it is to determine whether it is in the
public interest that an attorney be permitted to practice, which question
includes considerations of the protection of the public.
9. ____. Ordinarily, indefinite suspension of an attorney’s license to prac-
tice law is not consistent with the Nebraska Supreme Court’s duty to
protect the public.
Original action. Judgment of disbarment.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
INTRODUCTION
On June 13, 2018, attorney Patrick J. Nelson was adminis-
tratively suspended from the practice of law for his failure to
satisfy continuing education reporting requirements. He was
reinstated on December 7. During the period of his suspen-
sion, Nelson was the counsel of record for several clients, but
failed to inform the court and clients that he was suspended.
As a result, on July 11, 2019, Nelson received a private rep-
rimand as discipline. Subsequently, the Counsel for Discipline
of the Nebraska Supreme Court brought this action, and Nelson
did not file an answer or otherwise participate in these pro-
ceedings. We granted the Counsel for Discipline’s unopposed
motion for judgment on the pleadings as to the facts and
reserved the issue of the appropriate sanction. We now order
that Nelson be disbarred.
STATEMENT OF FACTS
The facts alleged in the formal charges are uncontested by
Nelson. Nelson was admitted to the practice of law in the State
of Nebraska on July 2, 1976. He engaged in the private prac-
tice of law in Kearney, Nebraska, and is under the ­jurisdiction
of the Committee on Inquiry of the Sixth Judicial District.
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STATE EX REL. COUNSEL FOR DIS. v. NELSON
Cite as 311 Neb. 251Pursuant to Neb. Ct. R. § 3-309(H) (rev. 2011), the allega-
tions drafted by the Counsel for Discipline were reviewed by
the Committee on Inquiry of the Sixth Judicial District, which
determined that there are reasonable grounds for discipline of
Nelson and that the public interest would be served by the fil-
ing of formal charges.
As background within the narrative of the formal charges,
it was stated that on June 13, 2018, pursuant to Neb. Ct. R.
§ 3-401.11(D) (rev. 2017), we suspended Nelson from the
practice of law because he had failed to satisfy the mandatory
continuing legal education reporting requirements for 2017.
Notice was sent by regular mail to Nelson’s business address.
Later that year, on December 7, 2018, we reinstated Nelson’s
license to practice law.
On June 10, 2021, formal charges were filed. The formal
charges give rise to this current disciplinary proceeding and
consist of five counts concerning cases in which Nelson was
the counsel of record during the period of his suspension.
Count I.
The first count alleges that Nelson was responsible for
“Trampe Bros. L.L. C. vs. Charity Field Farm, Inc.,” in the
district court for Phelps County, Nebraska, originally filed in
January 2016. The case involved a boundary dispute arising
from the changing riverbed of the Platte River. The defendants
filed an answer through counsel, and the matter was vigorously
pursued in court. On November 16, 2017, the defendant’s
counsel filed a motion to strike all pleadings filed by Nelson
on the basis that he signed pleadings as “‘The Law Office of
Patrick J. Nelson, L.L.C.,’” when, in fact, his limited liabil-
ity company had been dissolved by the Secretary of State in
June 2015. Nelson did not contest the motion to strike. On
February 8, 2018, Nelson filed a dismissal of the case without
prejudice. On March 7, Nelson refiled Todd Trampe’s case.
The defendant filed its answer, but Nelson filed no further
pleadings. When Nelson’s law license was administratively
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STATE EX REL. COUNSEL FOR DIS. v. NELSON
Cite as 311 Neb. 251suspended on July 13, he did not inform Trampe or the court
that his license was suspended. Subsequently, Trampe’s case
was dismissed for failure to progress the case. When Trampe
contacted Nelson concerning the case dismissal, Nelson sent
him a letter on September 25, stating that “‘[a]s a result of
my miss-calendering (sic) the matter in connection with the
court’s show cause deadline, we will re-file the case.’” Nelson
did not inform Trampe that his license had been suspended.
After Nelson’s license was reinstated in December, he did not
refile Trampe’s case or inform Trampe that he was not going
to refile the case.
Although Nelson was the attorney of record in the case,
he failed to inform the court of his suspension and failed to
withdraw as counsel. On August 6, 2020, Trampe filed a griev-
ance with the Counsel for Discipline, alleging that Nelson had
neglected his case and had not kept him informed about the
status of his case. Nelson did not respond to numerous requests
by the Counsel for Discipline informing him of the grievance
and requesting his response. To date, Nelson has not responded
to the Counsel for Discipline regarding this matter.
Count II.
When Nelson’s license was suspended on June 13, 2018,
he was representing the personal representative for the estate
of Betty Dorothy in the county court for Buffalo County,
Nebraska. Although Nelson was attorney of record in the case,
he failed to inform the court of his suspension and failed to
withdraw in the case.
After Nelson’s license was reinstated on December 7, 2018,
he continued his representation in the Dorothy estate case;
however, by August 2019, Nelson failed to take any further
actions in the case. Nelson failed to file an inventory as
directed by the court, and he did not communicate with his
client regarding the case. On November 7, 2019, the county
court issued an order directing Nelson to appear in court on
December 10. Nelson failed to appear in court. The personal
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STATE EX REL. COUNSEL FOR DIS. v. NELSON
Cite as 311 Neb. 251representative subsequently hired new counsel. As a result of
Nelson’s neglect, the estate was assessed $7,415.81 in penalties
and interest for the late payment of the inheritance tax.
Count III.
When Nelson’s license was suspended on June 13, 2018, he
was representing the personal representative for the estate of
Neal Maloley in the county court for Buffalo County. Although
Nelson was attorney of record in the case, he failed to inform
the court of his suspension and failed to withdraw as counsel.
After Nelson’s license was reinstated on December 7, 2018,
he continued his representation in the Maloley estate case;
however, by May 2020, Nelson failed to take any further
actions in the case. As a result of Nelson’s neglect of the case,
the personal representative hired new counsel on or about
May 28.
Count IV.
When Nelson’s license was suspended on June 13, 2018,
he was representing the personal representative for the estate
of Janet Altmaier in the county court for Buffalo County.
Although Nelson was attorney of record in the case, he failed
to inform the court of his suspension and failed to withdraw
as counsel.
After Nelson’s license was reinstated on December 7, 2018,
he continued his representation in the Altmaier estate case;
however, by February 2020, Nelson failed to take any further
actions in the case. As a result of Nelson’s neglect of the case,
the personal representative hired new counsel on or about
February 20. As a result of Nelson’s neglect, the estate was
assessed $11,409.18 in penalties and interest for the late pay-
ment of the inheritance tax.
Count V.
Prior to the suspension of Nelson’s license on June 13, 2018,
on November 21, 2017, Nelson had filed an “Application for
Informal Probate of Will” in the estate of Emma Kring in
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STATE EX REL. COUNSEL FOR DIS. v. NELSON
Cite as 311 Neb. 251the county court for Kearney County, Nebraska. Nelson was
representing the personal representative for the estate of Kring.
Despite a May 11, 2018, letter to Nelson from the clerk mag-
istrate of the Kearney County Court informing him that an
inventory needed to be filed in the Kring estate by June 11, no
inventory was timely filed. On July 13, the county court issued
an order to show cause, because the inventory had not been
filed. Nelson prepared the inventory and filed it on August 2.
On November 15, the court entered an order stating that the
Kring estate case would be closed in 60 days if nothing was
filed in the case. Although Nelson’s license was reinstated on
December 7, he took no further action in the Kring estate case.
On March 1, 2019, the case was dismissed by the court.
Procedural History.
Formal charges were filed on June 10, 2021, and Nelson
did not file an answer. On August 27, we granted the Counsel
for Discipline’s motion for judgment on the pleadings as to
the facts, finding that Nelson violated his oath of office as an
attorney licensed to practice law in the State of Nebraska as
provided by Neb. Rev. Stat. § 7-104 (Reissue 2012) and sev-
eral provisions of the Nebraska Rules of Professional Conduct.
With respect to counts I through V, Nelson violated Neb. Ct. R.
of Prof. Cond. §§ 3-501.1 (rev. 2017) (competence), 3-501.3
(diligence), 3-501.4 (client communications), and 3-508.4(a)
and (d) (rev. 2016) (misconduct). With respect to count I,
Nelson violated Neb. Ct. R. of Prof. Cond. § 3-508.1 (failure to
respond to disciplinary authority). The parties were directed to
file briefs on the issue of discipline. The Counsel for Discipline
seeks either disbarment or indefinite suspension. Nelson did
not file a brief.
The only question before this court is the appropriate
discipline.
ANALYSIS
Because Nelson did not answer the formal charges, this
court granted the Counsel for Discipline’s motion for judgment
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STATE EX REL. COUNSEL FOR DIS. v. NELSON
Cite as 311 Neb. 251on the pleadings as to the facts. Having concluded that Nelson
violated the Nebraska Rules of Professional Conduct and his
oath of office as an attorney, see § 7-104, we must determine
the appropriate sanction.
[1] Violation of a disciplinary rule concerning the practice of
law is a ground for discipline. State ex rel. Counsel for Dis. v.
Birch, 309 Neb. 79, 957 N.W.2d 923 (2021). The basic issues
in a disciplinary proceeding against an attorney are whether
discipline should be imposed and, if so, the appropriate disci-
pline under the circumstances. See id. Neb. Ct. R. § 3-304 of
the disciplinary rules provides that the following may be con-
sidered 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, Neb. Ct. R. § 3-310(N) (rev. 2019).
[2] 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 reputa-
tion of the bar as a whole, (4) the protection of the public, (5)
the attitude of the respondent generally, and (6) the respond­
ent’s present or future fitness to continue in the practice of law.
State ex rel. Counsel for Dis. v. Birch, supra.[3,4] Ordinarily, cumulative acts of attorney misconduct
and repeated disregard of requests for information from the
Counsel for Discipline will appropriately lead to disbarment.
State ex rel. Counsel for Dis. v. Sutton, 269 Neb. 640, 694
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STATE EX REL. COUNSEL FOR DIS. v. NELSON
Cite as 311 Neb. 251N.W.2d 647 (2005). Responding to disciplinary 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 disciplinary juris-
diction and a lack of concern for protecting the public, the
profession, and the administration of justice. Id.[5] With respect to the imposition of attorney discipline,
each attorney discipline case must be evaluated in light of its
particular facts and circumstances. See State ex rel. Counsel
for Dis. v. Birch, supra. For purposes of determining the proper
discipline 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.The Counsel for Discipline argues that Nelson’s acts and
omissions set forth in the formal charges violated his oath
of office as an attorney licensed to practice law in the State
of Nebraska as provided by § 7-104, as well as the fol-
lowing Nebraska Rules of Professional Conduct: §§ 3-501.1
(competence), 3-501.3 (diligence), 3-501.4 (client communi-
cations), 3-508.1 (failure to respond to disciplinary author-
ity), and 3-508.4(a) and (d) (misconduct). The Counsel for
Discipline contends that disbarment or indefinite suspension
is the appropriate sanction because of the harm Nelson caused
to his clients, his continued violation of the disciplinary rules
after his prior suspension in 2018, and his failure to respond
to inquiries from the Counsel for Discipline regarding his cli-
ents’ grievances.
As aggravating factors, the Counsel for Discipline notes that
Nelson has previously been disciplined; in particular, he was
suspended for nearly 6 months after he failed to satisfy the
mandatory continuing legal education reporting requirements
for 2017. During the period of that suspension, he failed to
inform the courts of his suspension and failed to withdraw as
counsel in the five cases encompassed by the formal charges.
The facts established by our order granting judgment on the
pleadings show that Nelson violated the disciplinary rules in
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STATE EX REL. COUNSEL FOR DIS. v. NELSON
Cite as 311 Neb. 251five separate incidents involving noncompliance and lack of
communication with clients and with the courts. During these
proceedings, Nelson has failed, and continues to fail, to comply
with efforts by the Counsel for Discipline to investigate the
grievances. This represents a pattern of noncompliance with
our disciplinary rules, and cumulative acts of attorney mis-
conduct are distinguishable from isolated incidents, therefore
justifying more serious sanctions. See State ex rel. Counsel
for Dis. v. Samuelson, 280 Neb. 125, 783 N.W.2d 779 (2010)
(disbarring attorney who abandoned legal matters of his clients
and mismanaged their funds).
As aggravating factors, the facts show that because of
Nelson’s neglect, each of the clients identified above was left
without counsel and several clients suffered financial con-
sequences as a result. Nelson’s neglect caused the estate of
Dorothy and the estate of Altmaier to be assessed $7,415.81
and $11,409.18, respectively, in penalties and interest. Nelson’s
neglect of the Trampe case and the Kring estate case caused
them to be dismissed.
[6] We are unable to acknowledge mitigating factors because
we lack any record on the question. We are troubled by
Nelson’s failure to respond to the Counsel for Discipline. In
the present disciplinary process, Nelson has failed to corre-
spond with the Counsel for Discipline, failed to respond to the
formal charges by way of an answer, and failed to brief the
issue of discipline as directed by this court. We have stated
that responding to inquiries and requests for information from
the Counsel for Discipline is an important matter, and an attor-
ney’s cooperation with the discipline process is fundamental to
the credibility of attorney disciplinary proceedings. See, State
ex rel. Counsel for Dis. v. Gast, 298 Neb. 203, 903 N.W.2d 259(2017); State ex rel. Counsel for Dis. v. Tonderum, 286 Neb.
942, 840 N.W.2d 487 (2013). By failing to file an answer to
the formal charges, Nelson missed the opportunity to enlighten
us about the existence of any mitigating factors, as well as his
current or future fitness to practice law. Failing to participate
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STATE EX REL. COUNSEL FOR DIS. v. NELSON
Cite as 311 Neb. 251in the disciplinary process is a very serious matter. State ex
rel. Counsel for Dis. v. Gast, supra. We have stated that an
attorney’s unwillingness or inability to respond to the charges
“indicate[s] a disrespect for the court’s disciplinary jurisdic-
tion.” State ex rel. Counsel for Dis. v. Samuelson, 280 Neb. at
129, 783 N.W.2d at 783.
[7] We have disbarred attorneys who have repeatedly
neglected clients’ matters. See, e.g., State ex rel. Counsel for
Dis. v. Samuelson, supra (disbarring attorney who abandoned
legal matters of his clients and mismanaged their funds); State
ex rel. Counsel for Dis. v. Coe, 271 Neb. 319, 710 N.W.2d
863 (2006) (disbarring attorney who neglected five cases and
stopped participating in disciplinary proceedings); State ex
rel. Counsel for Dis. v. Hart, 270 Neb. 768, 708 N.W.2d 606(2005) (disbarring attorney who had a pattern of neglecting
client matters and failed to communicate with the Counsel for
Discipline). We have also found that an attorney’s continuing
to practice law contrary to a temporary suspension order is
an independent basis for disbarment from the practice of law.
State ex rel. Counsel for Dis. v. Villarreal, 267 Neb. 353, 673
N.W.2d 889 (2004).
[8] The purpose of a disciplinary proceeding against an
attorney is not so much to punish the attorney as it is to deter-
mine whether it is in the public interest that an attorney be
permitted to practice, which question includes considerations
of the protection of the public. State v. Jorgenson, 302 Neb.
188, 922 N.W.2d 753 (2019). Nelson’s violations negatively
affected legal proceedings on behalf of at least five clients,
and they undermine the public’s confidence in the bar and its
members to be dependable and capable in the representation
of clients.
[9] We are aware that in the past we have occasionally
imposed an indefinite suspension on attorneys who had vio-
lated the disciplinary rules or failed to communicate with
the Counsel for Discipline and this court. See, e.g., State
ex rel. Counsel for Dis. v. Tighe, 295 Neb. 30, 886 N.W.2d
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STATE EX REL. COUNSEL FOR DIS. v. NELSON
Cite as 311 Neb. 251530 (2016). Ordinarily, indefinite suspension of an attorney’s
license to practice law is not consistent with our duty to protect
the public.
We are without knowledge of mitigating circumstances
which would give us an opportunity to assess Nelson’s future
ability to practice law. In view of the facts that have been
established—Nelson’s prior discipline and his silence in con-
nection with the current matter—the sanction of disbarment in
this case falls squarely within the principles we have recited
above. We therefore determine that the appropriate discipline
in this matter is disbarment.
CONCLUSION
It is the judgment of this court that Nelson be disbarred
from the practice of law in the State of Nebraska effective
immediately. Nelson is directed to comply with Neb. Ct. R.
§ 3-316 (rev. 2014), and upon failure to do so, he shall be sub-
ject to punishment for contempt of this court. Nelson is further
directed 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 within 60 days after an order imposing
costs and expenses, if any, is entered by the court.
Judgment of disbarment.