State ex rel. Counsel for Dis. v. Jorgenson

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. JORGENSON
Cite as 298 Neb. 855
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Jeremy C. Jorgenson, respondent.
___ N.W.2d ___
Filed February 2, 2018. No. S-17-487.
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 an attorney
are whether discipline should be imposed and, if so, the appropriate
discipline under the circumstances.
3. ____. With respect to the imposition of attorney discipline, each attor-
ney discipline case must be evaluated in light of its particular facts and
circumstances.
4. ____. For purposes of determining the proper discipline of an attor-
ney, the Nebraska Supreme Court considers the attorney’s actions both
underlying the events of the case and throughout the proceeding, as well
as any aggravating or mitigating factors.
5. ____. The propriety of a sanction must be considered with reference to
the sanctions imposed in prior similar cases.
6. ____. 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.
7. Judgments: Records: Judicial Notice. A court has the right to examine
its own records and take judicial notice of its own proceedings and judg-
ments in a former action.
8. Disciplinary Proceedings. Cumulative acts of attorney misconduct are
distinguishable from isolated incidents, therefore justifying more seri-
ous sanctions.
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298 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. JORGENSON
Cite as 298 Neb. 855
9. ____. An attorney’s cooperation with the discipline process is funda-
mental to the credibility of attorney disciplinary proceedings.
Original action. Judgment of suspension.
Julie L. Agena, Assistant Counsel for Discipline, for relator.
No appearance for respondent.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Per Curiam.
INTRODUCTION
On May 11, 2017, formal charges containing two counts
were filed by the office of the Counsel for Discipline of the
Nebraska Supreme Court, relator, against Jeremy C. Jorgenson,
respondent. Jorgenson filed no answer to the formal charges.
We granted the Counsel for Discipline’s motion for judgment
on the pleadings under Neb. Ct. R. § 3-310(I) (rev. 2014),
limited to the facts set forth in the formal charges, and ordered
the parties to brief the issue of the appropriate discipline to
impose. In its brief, relator suggested the discipline of sus-
pension. Jorgenson did not file a brief. We now order that
Jorgenson be indefinitely suspended from the practice of law in
the State of Nebraska, with a minimum suspension of 2 years,
effective immediately.
STATEMENT OF FACTS
Jorgenson was admitted to the practice of law in the State
of Nebraska on April 15, 2008. At all relevant times, he was
engaged in private practice in Omaha, Nebraska.
The formal charges filed by relator consist of two counts
and allege that Jorgenson (1) failed to provide competent and
diligent representation to his client when he failed to appear
at oral arguments on the client’s appeal, (2) knowingly dis-
obeyed his obligation to the court by failing to appear at oral
arguments, (3) failed to adequately supervise support staff,
and (4) failed to timely respond to a demand for information
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STATE EX REL. COUNSEL FOR DIS. v. JORGENSON
Cite as 298 Neb. 855
from the Counsel for Discipline. Below, we set forth the fac-
tual basis for each count and the procedural history of the
present action.
Count I
The first count arises out of Jorgenson’s failure to appear
for oral arguments in the U.S. Court of Appeals for the
Eighth Circuit.
On October 19, 2016, Jorgenson, who had been appointed
to represent the appellant, returned the court’s “Oral Argument
Response Form” to the Eighth Circuit. In the form, Jorgenson
acknowledged receipt of the court’s calendar scheduling oral
arguments in Lincoln, Nebraska, on October 25, 2016; how-
ever, Jorgenson failed to appear on that date.
On October 26, 2016, the Eighth Circuit issued a show cause
order, directing Jorgenson to show why he should not be per-
sonally disciplined for failing to appear and present oral argu-
ments. Jorgenson failed to file a timely response.
On December 2, 2016, Jorgenson filed an untimely response
to the show cause order. In his response, Jorgenson reported,
inter alia, that he was unable to attend the oral arguments
due to a multiweek capital murder trial followed by a death
penalty aggravation hearing throughout the month of October
2016. Because of the demands of the trial, Jorgenson stated
that in his absence, he relied on staff and other attorneys to
meet his obligations to other clients. Jorgenson stated that
he had various brief conversations with a paralegal regard-
ing rescheduling the oral arguments and/or having another
attorney substitute as counsel. Ultimately, the oral arguments
were not rescheduled and Jorgenson alleged that he was not
informed until the end of October that he had missed the oral
arguments. After discussing the case with the assistant U.S.
Attorney, Jorgenson alleges he was reassured that the matter
would be considered on the briefs, which adequately apprised
the Eighth Circuit of the issues presented. He claimed that his
paralegal never opened the email served by the Eighth Circuit
containing the show cause order. Jorgenson reported that he
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STATE EX REL. COUNSEL FOR DIS. v. JORGENSON
Cite as 298 Neb. 855
had apologized to his client and client’s family members and
that he accepted responsibility for failing to make the appro-
priate arrangements.
On December 6, 2016, the Eighth Circuit issued an order
which determined that Jorgenson’s actions would be grounds
for suspension of his ability to practice before the Eighth
Circuit or for disbarment; however, Jorgenson was not a mem-
ber of the Eighth Circuit bar. The order stated that should
Jorgenson ever apply for admission to the Eighth Circuit bar,
he would not be permitted to become a member without a
prior review and approval of the chief judge of the Eighth
Circuit. The order instructed the clerk not to appoint Jorgenson
under the Criminal Justice Act in any future appeals, and
to forward the details of the matter to the clerk of the U.S.
District Court for the District of Nebraska and the Counsel
for Discipline.
On January 12, 2017, a “notice of Formal Grievance” was
sent to Jorgenson by certified mail. On January 31, Jorgenson
responded, stating that he was unaware of the show cause
order issued by the Eighth Circuit until December 2, 2016, and
responded on the same day. He stated that during the capital
murder trial, he had relied heavily on other lawyers and legal
staff and that the paralegal tasked with checking his emails did
not review them as instructed. Jorgenson further stated that an
article published in an Omaha newspaper regarding the Eighth
Circuit’s order was itself akin to a public reprimand. He
reported that since the publication of the newspaper article, his
firm had interfered with his ability to access client information
and respond to matters promptly.
The formal charges for count I allege that Jorgenson (1)
failed to provide competent and diligent representation to his
client when he failed to appear at oral arguments for his appeal,
(2) knowingly disobeyed his obligation to the court by failing
to appear at oral arguments, and (3) failed to adequately super-
vise support staff. The charges allege that through these actions,
Jorgenson violated his oath of office as an attorney, Neb. Rev.
Stat. § 7-104 (Reissue 2012), and Neb. Ct. R. of Prof. Cond.
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§§ 3-501.1 (competence), 3-501.3 (diligence), 3-503.4(c) (fair-
ness to opposing party and counsel), and 3-508.4(a) and (d)
(misconduct).
Count II
The second count generally arises out of Jorgenson’s failure
to communicate with relator.
On August 30, 2016, relator sent Jorgenson notification that
a preliminary inquiry had been opened pursuant to a client
grievance from K.H. The notification asked for written expla-
nation of the issues raised in the grievance.
After Jorgenson failed to respond to the notice, on September
19, 2016, relator sent a second letter requesting a written
explanation of the issues raised by K.H. The letter indicated
that a failure to respond “‘may, in and of itself, be enough to
elevate the matter to a more severe level of discipline.’”
Jorgenson requested additional time to respond to K.H.’s
grievance, due to the pending capital murder trial and the
need for additional time to review his records regarding the
complainant’s matter. Extra time was granted. After the capital
murder trial ended on October 28, 2016, Jorgenson failed to
provide a written response to the preliminary inquiry.
On January 12, 2017, a notice of formal grievance was
sent by certified mail to Jorgenson. On January 31, Jorgenson
responded and noted that his “‘ability to respond promptly was
frustrated in multiple ways.’” Specifically, he reported that his
cell phone had become inoperable, that he had lost his text
message conversations with K.H.’s family, and that his server
account had been canceled causing the loss of thousands of
emails and his calendar. He reported that “[b]ecause of the
length of [the capital murder trial], and considering that the
most important concern of [K.H.’s] was receiving the docu-
ments, I thought my time was more appropriately spent getting
caught up in other pending matters that had been on hold dur-
ing [the capital murder trial].”
The formal charges for count II allege that in failing to
timely respond to a demand for information from relator,
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STATE EX REL. COUNSEL FOR DIS. v. JORGENSON
Cite as 298 Neb. 855
Jorgenson violated his oath of office as an attorney, § 7-104,
and Neb. Ct. R. of Prof. Cond. § 3-508.1(b) (bar admission and
disciplinary matters) and § 3-508.4(a) and (d) (misconduct).
Procedural History
Pursuant to Neb. Ct. R. § 3-302, Jorgenson is under the
jurisdiction of the Committee on Inquiry of the Second Judicial
District.
On March 24, 2017, the formal complaint was sent to
Jorgenson, providing 10 working days to submit a written
response to the complaint. Jorgenson failed to respond. The
matters alleged in the formal complaint were reviewed by the
Committee on Inquiry pursuant to Neb. Ct. R. § 3-309(H)
(rev. 2011). On May 8, the Committee on Inquiry determined
there were reasonable grounds for discipline of respondent
and that public interest would be served by the filing of for-
mal charges.
On May 11, 2017, formal charges were filed against
Jorgenson. On May 31, Jorgenson signed a receipt and entry
of appearance which he filed with this court. Jorgenson failed
to file a timely answer to the formal charges. On July 6,
relator filed a motion for judgment on the pleadings pursu-
ant to § 3-310(I), which we granted on August 8, limited as
to the facts. The parties were directed to brief the issue of
discipline.
Relator filed its brief on September 7, 2017, recommend-
ing the discipline of suspension. Jorgenson did not file a brief
regarding discipline. The court entered a default notice against
Jorgenson on October 17.
ASSIGNMENT OF ERROR
The only question before this court is the appropriate
discipline.
ANALYSIS
Because Jorgenson did not file an answer to the for-
mal charges, this court granted the Counsel for Discipline’s
motion for judgment on the pleadings as to the facts. Having
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STATE EX REL. COUNSEL FOR DIS. v. JORGENSON
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concluded that Jorgenson violated the Rules of Professional
Conduct and his oath of office as an attorney, § 7-104, we
must determine the appropriate sanction.
[1,2] Violation of a disciplinary rule concerning the prac-
tice of law is a ground for discipline. State ex rel. Counsel
for Dis. v. Gast, 296 Neb. 687, 896 N.W.2d 583 (2017). The
basic issues in a disciplinary proceeding against an attorney
are whether discipline should be imposed and, if so, the appro-
priate discipline under the circumstances. See id. Neb. Ct. R.
§ 3-304 of the disciplinary rules provides 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).
[3-5] We have observed that, with respect to the imposition
of attorney discipline, each attorney discipline case must be
evaluated in light of its particular facts and circumstances.
State ex rel. Counsel for Dis. v. Island, 296 Neb. 624, 894
N.W.2d 804 (2017). For purposes of determining the proper
discipline of an attorney, we consider the attorney’s actions
both underlying the events of the case and throughout the
proceeding, as well as any aggravating or mitigating factors.
Id. The propriety of a sanction must be considered with ref-
erence to the sanctions imposed in prior similar cases. State
ex rel. Counsel for Dis. v. Gast, ante p. 203, 903 N.W.2d
259 (2017).
[6] To determine whether and to what extent discipline
should be imposed in an attorney discipline proceeding, we
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STATE EX REL. COUNSEL FOR DIS. v. JORGENSON
Cite as 298 Neb. 855
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 pub-
lic, (5) the attitude of the respondent generally, and (6) the
respondent’s present or future fitness to continue in the practice
of law. Id.
[7] As aggravating factors, we note that Jorgenson has pre-
viously been disciplined. See State ex rel. Counsel for Dis. v.
Jorgenson, 284 Neb. 507, 822 N.W.2d 367 (2012) (imposing
discipline of public reprimand). A court has the right to exam-
ine its own records and take judicial notice of its own proceed-
ings and judgments in a former action. State ex rel. Counsel
for Dis. v. Gast, supra. Thus, in addition to the current formal
charges, we also consider the relevant facts from Jorgenson’s
previous disciplinary proceedings. See id. (citing State ex rel.
Counsel for Dis. v. Lopez Wilson, 283 Neb. 616, 811 N.W.2d
673 (2012); State ex rel. Counsel for Dis. v. Ellis, 283 Neb.
329, 808 N.W.2d 634 (2012)). In 2012, Jorgenson received a
public reprimand and 1 year’s probation for client incidents
generally involving his entering into a contingency fee agree-
ment to represent a client, when Jorgenson should have known
the client’s claims were time barred, and by entering into con-
tingency fee agreements not committed to writing. See State ex
rel. Counsel for Dis. v. Jorgenson, supra.
[8] In the present case, the facts established by our order
granting judgment on the pleadings show that Jorgenson vio-
lated the disciplinary rules in two separate incidents in the
same year involving noncompliance and a lack of communi-
cation with clients, with the courts, and with the Counsel for
Discipline. This represents a pattern of noncompliance with our
disciplinary rules, and cumulative acts of attorney misconduct
are distinguishable from isolated incidents, therefore justifying
more serious sanctions. See State ex rel. Counsel for Dis. v.
Gast, supra.
As an additional aggravating factor, we note that Jorgenson’s
client, who was the appellant in the appeal to the Eighth
Circuit, was left without counsel when respondent failed to
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STATE EX REL. COUNSEL FOR DIS. v. JORGENSON
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appear for oral arguments before the Eighth Circuit. Rather
than fully taking responsibility, Jorgenson blamed support
staff which he evidently had failed to adequately supervise.
Likewise, after receiving notification from relator that another
client was seeking his file, Jorgenson took months to provide
the file, blamed support staff for the delay, and minimized the
importance of returning the client’s file.
[9] We are unable to acknowledge mitigating factors,
because we lack any record on the question. In the present
disciplinary process, Jorgenson has failed to correspond with
relator at several points, 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 relator is an impor-
tant matter, and an attorney’s cooperation with the discipline
proc­ess is fundamental to the credibility of attorney discipli­
nary proceedings. See State ex rel. Counsel for Dis. v. Gast,
ante p. 203, 903 N.W.2d 259 (2017); State ex rel. Counsel
for Dis. v. Tonderum, 286 Neb. 942, 840 N.W.2d 487 (2013).
In failing to file an answer to the formal charges, Jorgenson
missed the opportunity to enlighten us about any additional
mitigating factors or his current or future fitness to practice
law. Failing to participate in the disciplinary process is a very
serious matter. See id.
Finally, we must consider the appropriate sanction, which
we do with reference to the sanctions imposed in prior simi-
lar cases. Prior cases, though factually unique, offer some
insight. See, e.g., State ex rel. Counsel for Dis. v. Ubbinga,
295 Neb. 995, 893 N.W.2d 694 (2017) (suspending attorney
for 2 years who failed to complete work for client, failed to
communicate with client, failed to provide client with file, and
failed to cooperate with relator’s investigation); State ex rel.
Counsel for Dis. v. Tighe, 295 Neb. 30, 886 N.W.2d 530 (2016)
(indefinite suspension after attorney failed to respond to formal
charges regarding similar client issues, and requiring attorney
to demonstrate that he has made behavioral changes that will
allow him to practice law within disciplinary rules); State ex
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rel. Counsel for Dis. v. Moore, 294 Neb. 283, 881 N.W.2d 923
(2016) (suspending attorney for 2 years with 2 years’ moni-
tored probation following conditional admission of attorney’s
client neglect, failure to communicate or provide accounting
and refund to client, and lack of communication with relator);
State ex rel. Counsel for Dis. v. Tonderum, supra (declining
to disbar attorney and instead imposing indefinite suspension
after attorney failed to respond to formal charges).
In view of the facts which have been established, and
Jorgenson’s conduct in connection with the current matter,
we determine that Jorgenson be indefinitely suspended from
the practice of law in the State of Nebraska, with a minimum
suspension of 2 years, effective immediately. Upon application
for reinstatement, Jorgenson shall fully answer for the current
charges; shall fully answer for failing to respond to his clients,
the Counsel for Discipline, and the courts; and shall also have
the burden to demonstrate his present and future fitness to
practice law.
CONCLUSION
We order that Jorgenson be indefinitely suspended from the
practice of law in the State of Nebraska, with a minimum sus-
pension of 2 years, effective immediately. Jorgenson may apply
for reinstatement consistent with the terms outlined above.
Jorgenson 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. Jorgenson is directed to pay costs
and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and
7-115 (Reissue 2012) and § 3-310(P) and Neb. Ct. R. § 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.
Wright, J., not participating.