State ex rel. Counsel for Dis. v. Walz

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Nebraska A dvance Sheets
291 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. WALZ
Cite as 291 Neb. 566
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator, v.
K ristin R enee Walz, respondent.
___ N.W.2d ___
Filed August 14, 2015. No. S-12-275.
1. Disciplinary Proceedings: Appeal and Error. In attorney discipline
and admission cases, the Nebraska Supreme Court reviews recommen-
dations de novo on the record, reaching a conclusion independent of the
referee’s findings.
2. Disciplinary Proceedings. The basic issues in a disciplinary pro-
ceeding against an attorney are whether the Nebraska Supreme Court
should impose discipline and, if so, the appropriate discipline under
the circumstances.
3. ____. Under Neb. Ct. R. § 3-304, the Nebraska Supreme Court may
impose one or more of the following disciplinary sanctions: (1) disbar-
ment; (2) suspension; (3) probation in lieu of or subsequent to suspen-
sion, on such terms as the court may designate; (4) censure and repri-
mand; or (5) temporary suspension.
4. ____. To determine whether and to what extent discipline should be
imposed in a lawyer 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 and 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.
5. ____. When determining appropriate discipline, the Nebraska Supreme
Court considers aggravating and mitigating factors.
6. ____. The propriety of a sanction in an attorney discipline case must
be considered with reference to the sanctions imposed in prior simi-
lar cases.
Original action. Judgment of disbarment.
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291 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. WALZ
Cite as 291 Neb. 566
John W. Steele and Kent L. Frobish, Assistant Counsels for
Discipline, for relator.
John D. Rouse for respondent.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Per Curiam.
INTRODUCTION
The issue in this attorney discipline proceeding is what dis-
cipline should be imposed on Kristin Renee Walz (Respondent)
for violating certain provisions of the Nebraska Rules of
Professional Conduct.
Respondent pled no contest and was convicted of a felony.
Respondent admits that she was convicted of making terror-
istic threats, a Class IV felony, pursuant to Neb. Rev. Stat.
§ 28-311.01 (Reissue 2008). The referee recommended dis-
barment, and after our review, we conclude that disbarment is
the proper sanction.
BACKGROUND
On September 3, 2010, Respondent was admitted to the
practice of law in the State of Nebraska. At the time of the
events set forth herein, Respondent was engaged in the private
practice of law in Lancaster County, Nebraska.
Respondent was initially charged with second degree domes-
tic assault and use of a weapon to commit a felony. She was
accused of assaulting her husband with a knife. The State later
amended the charges to first degree assault and use of a deadly
weapon to commit a felony. Respondent has consistently
denied causing her husband’s injuries and has maintained that
she was asleep when the injuries occurred.
At some point, Respondent’s husband admitted to police
that Respondent had cut him with a knife. He later recanted
and explained his statement was made while he was sleep
deprived, under the influence of drugs, and under pressure by
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STATE EX REL. COUNSEL FOR DIS. v. WALZ
Cite as 291 Neb. 566
the police. He also stated that he made the statement to hide
the fact that he had acquired drugs illegally and was under the
belief that he could simply refuse to press charges. He stated
that he was eating cake in bed and was under the influence of
pain medication. He claimed he fell asleep, rolled over on the
knife, and was injured as a result.
Pursuant to a plea agreement, Respondent pled no contest to
one count of making terroristic threats. She was convicted on
March 9, 2012, and was sentenced to 1 to 3 years’ imprison-
ment with credit for 55 days served. She began her sentence
July 3 and was released on parole in December. Her parole
ended in July 2013.
On April 4, 2012, the Committee on Inquiry of the First
Judicial District filed an application with this court for tem-
porary suspension of Respondent’s license to practice law. We
entered an order suspending Respondent until further order of
the court. Respondent remains under suspension pursuant to
that order.
On October 31, 2012, formal charges were filed against
Respondent based upon her felony conviction for making
terroristic threats. The charges alleged that Respondent had
violated the Nebraska Rules of Professional Conduct by com-
mitting a criminal act.
Respondent’s answer to the formal charges denied she had
violated her oath of office as an attorney or Neb. Ct. R. of Prof.
Cond. § 3-508.4(a) and (b). A referee was appointed in January
2013, but due to a joint request to stay the proceedings while
Respondent’s criminal appeal and postconviction relief were
pending, the case did not resume until 2014.
On April 30, 2014, a hearing on the formal charges was
commenced. Respondent, her husband, and her treating clini-
cal psychologist, Dr. Caryll Palmer Wilson, testified.
We granted the parties’ joint motion to continue the report
of the referee pending final resolution of Respondent’s crimi-
nal charges and a motion to withdraw her plea. Respondent’s
motion to withdraw her no contest plea was subsequently
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STATE EX REL. COUNSEL FOR DIS. v. WALZ
Cite as 291 Neb. 566
overruled. The court also found that postconviction relief was
no longer available, because Respondent was no longer in cus-
tody and there was no allegation that she was on parole.
On August 18, 2014, the referee filed a report, finding
that Respondent’s conviction of a felony was a violation of
her oath of office as an attorney and, specifically, a viola-
tion of § 3-508.4(a) and (b). The referee recommended that
Respondent be disbarred.
In mitigation, Respondent asserted that she did not com-
mit an act that harmed the public or her clients, she did not
commit an act of dishonesty, she did not show herself to be
untrustworthy, and she had diligently and capably represented
her clients and their interests. She argued that she should be
allowed to practice law in the future because the felony con-
viction did not render her unfit to practice law.
ASSIGNMENT OF ERROR
Neither party has taken exception to the report or factual
findings of the referee. Therefore, the only issue is the appro-
priate sanction under the circumstances. Respondent opposes
the referee’s recommendation and the Counsel for Discipline’s
request for disbarment.
STANDARD OF REVIEW
[1,2] In attorney discipline and admission cases, we review
recommendations de novo on the record, reaching a conclu-
sion independent of the referee’s findings.1 The basic issues in
a disciplinary proceeding against an attorney are whether the
Nebraska Supreme Court should impose discipline and, if so,
the appropriate discipline under the circumstances.2
1
State ex rel. Counsel for Dis. v. Smith, 287 Neb. 755, 844 N.W.2d 318
(2014).
2
State ex rel. Counsel for Dis. v. Cording, 285 Neb. 146, 825 N.W.2d 792
(2013).
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Nebraska A dvance Sheets
291 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. WALZ
Cite as 291 Neb. 566
ANALYSIS
[3] Under Neb. Ct. R. § 3-304, this court may impose
one or more of the following disciplinary sanctions: “(1)
Disbarment by the Court; or (2) Suspension by the Court; or
(3) Probation by the Court in lieu of or subsequent to suspen-
sion, on such terms as the Court may designate; or (4) Censure
and reprimand by the Court; or (5) Temporary suspension by
the Court.”
Section 3-508.4 provides that it is professional misconduct
for a lawyer to do either of the following: “(a) violate or
attempt to violate the Rules of Professional Conduct[,] know-
ingly assist or induce another to do so[,] or do so through the
acts of another [or] (b) commit a criminal act that reflects
adversely on the lawyer’s honesty, trustworthiness[,] or fitness
as a lawyer in other respects.”
Respondent strenuously denied committing the crime of
making terroristic threats, and her husband, the purported
victim of the crime, also insisted that she did not com-
mit a crime against him. He retracted all statements he had
previously made to police and claimed that he originally
made the statements while under the influence of drugs and
sleep deprivation.
Respondent stated she took a plea deal because she feared
a prolonged trial and a conviction of a far more serious crime
that could result in years of incarceration. She wanted to
avoid a lengthy trial because she had a 17-year-old daughter
and a seriously ill husband who relied on her for support, and
she wanted to avoid the bad publicity a trial would generate
because she is an attorney. She claimed to have exculpatory
evidence and intended to continue her pursuit to exonerate
herself of the crime.
It is not uncommon for one who accepts a plea bargain to
make similar claims after the fact. However, it is not our task
in this case to determine the innocence or guilt of Respondent,
but only the appropriate discipline to be imposed for the
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Nebraska A dvance Sheets
291 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. WALZ
Cite as 291 Neb. 566
conviction. We are instructed by Neb. Ct. R. § 3-326(A),
which states:
For the purposes of Inquiry of a Complaint or Formal
Charges filed as a result of a finding of guilt of a crime,
a certified copy of a judgment of conviction consti-
tutes conclusive evidence that the attorney committed the
crime, and the sole issue in any such Inquiry should be
the nature and extent of the discipline to be imposed.
The certified copy of Respondent’s judgment of convic-
tion is conclusive evidence that she was convicted of mak-
ing terroristic threats, in violation of § 28-311.01. Unless
the conviction is vacated, Respondent remains a convicted
felon. Therefore, the only issue before us is the discipline to
be imposed.
[4] To determine whether and to what extent discipline
should be imposed in a lawyer discipline proceeding, we
consider the following factors: (1) the nature of the offense,
(2) the need for deterring others, (3) the maintenance and
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
Each attorney discipline case must be evaluated individ­
ually in light of its particular facts and circumstances.4 The
propriety of a sanction must be considered with reference to
the sanctions imposed in prior similar cases.5
Nature of Offense and Deterrence
Offenses involving violence, dishonesty, breach of trust, or
serious interference with the administration of justice require
3
State ex rel. Counsel for Dis. v. Barnes, 275 Neb. 914, 750 N.W.2d 668
(2008).
4
State ex rel. Counsel for Dis. v. Pivovar, 288 Neb. 186, 846 N.W.2d 655
(2014).
5
State ex rel. Counsel for Dis. v. Beltzer, 284 Neb. 28, 815 N.W.2d 862
(2012).
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STATE EX REL. COUNSEL FOR DIS. v. WALZ
Cite as 291 Neb. 566
discipline.6 Respondent was not convicted of a crime that
involved actual physical violence—such as assault, domestic
assault, or battery—but, rather, a crime of threatening to com-
mit such violence.7
The referee found that the certified copy of Respondent’s
judgment of conviction was conclusive evidence that she had
been convicted of a felony crime of violence. The evidence was
clear and convincing that Respondent violated § 3-508.4(b)
by committing a criminal act that reflects adversely on the
lawyer’s honesty, trustworthiness, or fitness as a lawyer in
other aspects.
R eputation of Bar
This is our first case involving an attorney’s conviction for
a crime of violence, and the sanction must be tailored to main-
tain public confidence in the bar community.
Protection of Public
Respondent’s psychologist, Wilson, testified that there was
no evidence that Respondent has violent or aggressive tend­
encies. However, protection of the public is not merely con-
cern for a physical danger to the public. The goal of attorney
discipline proceedings is not as much punishment as determi-
nation of whether it is in the public interest to allow an attor-
ney to keep practicing law.8 Therefore, an adequate sanction is
necessary to maintain public confidence in the bar.
Attitude of R espondent
Respondent has remained fully cooperative with the
Counsel for Discipline. Such cooperation is always credited
to a respondent when we consider sanctions. However, unlike
other cases where sanctioned attorneys have acknowledged
their misconduct and expressed genuine remorse, Respondent
6
See § 3-508.4, comment 2.
7
See § 28-311.01.
8
State ex rel. Counsel for Dis. v. Sundvold, 287 Neb. 818, 844 N.W.2d 771
(2014).
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STATE EX REL. COUNSEL FOR DIS. v. WALZ
Cite as 291 Neb. 566
insists on her innocence. She intends to pursue ways to
exonerate herself. But it is not our task in the instant case
to review her conviction. Consequently, Respondent has
not accepted responsibility for her actions. As an attorney,
Respondent knew or should have known at the time she
entered a plea of no contest that a felony conviction would
result in severe sanctions.
Fitness to Continue
Practice of Law
Respondent’s psychologist, Wilson, began seeing Respondent
for therapy in 2008. Respondent needed assistance with learn-
ing how to cope with anxiety and other mental health issues.
Respondent’s IQ falls in the highly superior range. Wilson
stated that Respondent shows no signs of aggressive or vio-
lent tendencies, or any signs of marital problems or domes-
tic violence.
The referee gave consideration to Wilson’s opinion that
Respondent showed no aggressive tendencies in her clini-
cal observations. Wilson testified that Respondent will need
counseling to resolve these issues and “get back on her feet.”
Such counseling is needed before Respondent can manage her
depression to a point where she would be fit to practice law.
Wilson stated that given the circumstances, this would take at
least 12 months. Wilson’s psychotherapy notes indicate that all
the diagnoses regarding Respondent’s condition are neurologi-
cally based syndromes and that Respondent has acknowledged
that she was not fit to practice law. At the time of the referee’s
report, the evidence indicated that Respondent was not fit to
practice law.
Mitigating Factors
[5] When determining appropriate discipline, the Nebraska
Supreme Court considers aggravating and mitigating factors.9
We note that there are some mitigating factors. The referee
9
State ex rel. Counsel for Dis. v. Palik, 284 Neb. 353, 820 N.W.2d 862
(2012).
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STATE EX REL. COUNSEL FOR DIS. v. WALZ
Cite as 291 Neb. 566
found that Respondent has been fully cooperative with the
Counsel for Discipline.
The referee also noted several letters and affidavits from
attorneys and former clients in support of Respondent, includ-
ing evidence of pro bono legal work that she did before being
suspended. The referee stated that Respondent has exhibited
extraordinary compassion and dedication in representing indi-
gent persons and persons of limited means.
Prior to her conviction and suspension, Respondent was
in good standing and had no prior complaints, misconduct,
or criminal history. However, in contrast to prior discipline
cases in which an attorney’s conduct was shown to be an iso-
lated incident in a lengthy and otherwise unblemished career,
Respondent was in practice approximately 6 months before
the misconduct occurred. She was admitted to practice on
September 3, 2010, and the misconduct which resulted in her
conviction occurred on February 12, 2011.
Prior Cases
[6] The propriety of a sanction must be considered with
reference to the sanctions imposed in prior similar cases.10
There are few Nebraska cases of attorney discipline involv-
ing felony convictions, and none which involves a crime of
violence. Some of our past attorney discipline cases have
involved drug offenses,11 fraudulent activity,12 theft from
clients,13 conspiracy or aiding and abetting in a felony,14 and
10
State ex rel. Counsel for Dis. v. Connor, 289 Neb. 660, 856 N.W.2d 570
(2014).
11
State ex rel. Counsel for Dis. v. Hubbard, 276 Neb. 741, 757 N.W.2d
375 (2008); State ex rel. NSBA v. Brown, 251 Neb. 815, 560 N.W.2d 123
(1997).
12
State ex rel. Counsel for Dis. v. Council, 289 Neb. 33, 853 N.W.2d 844
(2014).
13
State ex rel. Counsel for Dis. v. Tarvin, 279 Neb. 399, 777 N.W.2d 841
(2010).
14
State ex rel. Counsel for Dis. v. Wintroub, 277 Neb. 787, 765 N.W.2d 482
(2009).
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STATE EX REL. COUNSEL FOR DIS. v. WALZ
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sexual ­offenses.15 Although we have not stated a “bright line
rule,” our case law involving discipline for felony convictions
indicates that such a conviction reflects adversely upon a law-
yer’s fitness to practice law and that disbarment is considered
to be the appropriate sanction.
Respondent cites to the sanction we imposed in State ex
rel. Counsel for Dis. v. Mills,16 where we allowed an attorney,
Stuart B. Mills, to be reinstated after serving a 2-year suspen-
sion for falsely notarizing documents and assisting a client in
filing false tax returns based upon those documents. While on
suspension, Mills was convicted in federal court of a felony
involving the same false documents. We later reinstated Mills,
despite the felony, because we had already sanctioned him
for the conduct notwithstanding the felony conviction and,
also, in light of the mitigating factors present in that case.
We noted:
It is clear from the record that Mills’ behavior sur-
rounding his handling of the [case] was an isolated
incident in what has otherwise been an exemplary legal
career. The record indicates that Mills is involved in his
community and has countless letters of support from
judges, lawyers, and laypersons. In addition, Mills has
never been disciplined in the 30 years he has been autho-
rized to practice law in Nebraska.
. . . Furthermore, Mills has admitted his wrongdoing
and has admitted that he engaged in conduct which vio-
lates the Code of Professional Responsibility.17
Unlike the attorney in Mills, Respondent had not received a
sanction for the conduct leading to her conviction. Nor does
15
State ex rel. Counsel for Dis. v. Lauby, 270 Neb. 405, 703 N.W.2d 132
(2005) (child sexual assault); State ex rel. NSBA v. Mellor, 252 Neb. 710,
565 N.W.2d 727 (1997) (child pornography).
16
State ex rel. Counsel for Dis. v. Mills, 267 Neb. 57, 671 N.W.2d 765
(2003).
17
Id. at 71, 671 N.W.2d at 776.
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STATE EX REL. COUNSEL FOR DIS. v. WALZ
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the instant case involve the mitigating circumstances we found
in Mills.
Sanction
Because this is the first attorney discipline case in Nebraska
involving a felony conviction for a crime of violence, it is nec-
essary to convey the serious consequences that attach to such
misconduct. Although no clients were harmed by Respondent’s
misconduct, an attorney’s conviction of a felony for a crime of
violence requires a severe sanction.
It is clear that the stress caused by the inability to practice
law has produced much anxiety for Respondent. However, this
does not excuse the seriousness of her misconduct. Although
Respondent may not be a danger to others, her felony convic-
tion for a crime of violence damages the reputation of the bar
and threatens public confidence in the profession. There is a
need for sanctions to deter crimes of violence by members of
the bar.
CONCLUSION
It is the judgment of this court that Respondent should be
and hereby is disbarred from the practice of law in Nebraska,
effective immediately. Respondent shall comply with Neb. Ct.
R. § 3-316 (rev. 2014), and upon failure to do so, she shall be
subject to punishment for contempt of this court. Respondent
is also directed to pay costs and expenses in accordance with
Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and Neb.
Ct. R. §§ 3-310(P) (rev. 2014) and 3-323(B) of the discipli­
nary rules within 60 days after the order imposing costs and
expenses, if any, is entered by the court.
Judgment of disbarment.