State ex rel. Counsel for Dis. v. Trembly

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Nebraska Supreme Court A dvance Sheets
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STATE EX REL. COUNSEL FOR DIS. v. TREMBLY
Cite as 300 Neb. 195
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. K ent J. Trembly, respondent.
___ N.W.2d ___
Filed June 15, 2018. No. S-17-461.
1. Disciplinary Proceedings: Appeal and Error. Because attorney disci-
pline cases are original proceedings before the Nebraska Supreme Court,
the court reviews a referee’s recommendations de novo on the record,
reaching a conclusion independent of the referee’s findings.
2. 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.
3. ____. 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.
4. ____. Each attorney discipline case must be evaluated in light of its
particular facts and circumstances.
5. ____. 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.
6. ____. The propriety of a sanction must be considered with reference to
the sanctions imposed in prior similar cases.
7. Disciplinary Proceedings: Rules of the Supreme Court. A pattern of
noncompliance with Nebraska disciplinary rules and cumulative acts of
attorney misconduct are distinguishable from isolated incidents, there-
fore justifying more serious sanctions.
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STATE EX REL. COUNSEL FOR DIS. v. TREMBLY
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8. Disciplinary Proceedings: Convictions. A felony conviction is
a strongly aggravating factor in determining the sanction ultimately
imposed on an attorney.
9. Disciplinary Proceedings. An attorney’s cooperation in disciplinary
proceedings, taking responsibility for his or her actions, and lack of
previous discipline are each mitigating factors.
10. ____. A continuing commitment to the legal profession and the commu-
nity is also a mitigating factor in an attorney discipline case.
11. ____. When no exceptions to the referee’s findings of fact in an attorney
discipline case are filed, the Nebraska Supreme Court may consider the
referee’s findings final and conclusive.
12. Disciplinary Proceedings: Case Disapproved. State ex rel. Counsel
for Dis. v. Mills, 267 Neb. 57, 671 N.W.2d 765 (2003), is disapproved
to the extent it was determined therein that a 2-year suspension was a
sufficient sanction based on the egregious conduct substantiating the
grounds for disciplinary action.
Original action. Judgment of suspension.
Julie L. Agena, Assistant Counsel for Discipline, for relator.
Clarence E. Mock, of Johnson & Mock, P.C., L.L.O., for
respondent.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and H all, District Judge.
Per Curiam.
This is an attorney discipline case in which the only ques-
tion before this court is the appropriate sanction. Kent J.
Trembly admits to receiving a felony conviction for filing a
false individual income tax return in the U.S. District Court for
the District of Nebraska. The referee recommended Trembly be
suspended from the practice of law for 18 months. However,
after our de novo review of the record, we conclude a 3-year
suspension from the practice of law is the proper sanction.
BACKGROUND
Trembly was admitted to the practice of law in the State of
Nebraska on September 28, 1994. At all relevant times, he was
engaged in the practice of law in Wahoo, Nebraska.
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STATE EX REL. COUNSEL FOR DIS. v. TREMBLY
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Grounds for Attorney Discipline
On December 16, 2015, the U.S. District Court for the
District of Nebraska accepted Trembly’s plea of guilty and
found him guilty of the charge of filing a false tax return for
tax year 2006, under I.R.C. § 7206(1) (2012). Specifically,
Trembly filed a U.S. individual tax return that failed to report
any gross receipts from his business activity—involving
legal, veterinary, supplement sales, and investment broker-
age businesses—omitting gross receipts of $1,110,982.77. On
December 8, 2016, Trembly was sentenced to probation for 2
years, with 6 months of home restriction, and restitution in the
amount of $110,374.58.
Procedural History
On May 3, 2017, Counsel for Discipline of the Nebraska
Supreme Court filed formal charges against Trembly, alleging
that he violated his oath of office as an attorney, Neb. Rev.
Stat. § 7-104 (Reissue 2012), and Neb. Ct. R. of Prof. Cond.
§ 3-508.4(a) through (c). Trembly admitted to these allega-
tions in his answer, and we sustained Counsel for Discipline’s
motion for judgment on the pleadings limited to the facts. We
then appointed a referee for the taking of evidence limited to
the appropriate discipline.
R eferee’s R eport
After an evidentiary hearing, the referee reported his find-
ings of fact and recommendations for the appropriate sanc-
tion. The referee reasoned that omitting over $1 million of
income from a tax return was serious, needed to be deterred,
and reflected poorly on the reputation of the bar as a whole.
However, the referee noted that Trembly’s actions did not harm
any clients and that “Trembly has accepted responsibility for
the actions that form the basis of this proceeding, has satisfied
all terms of his probation and has cooperated with Counsel for
[D]iscipline to resolve this matter expeditiously.”
The referee also identified certain mitigating factors that
reflect on Trembly’s present and future fitness to practice
law: Trembly’s cooperation with Counsel for Discipline and
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accept­ance of responsibility; Trembly’s lack of prior discipli­
nary issues, with Counsel for Discipline or the professional
boards in the three states where he holds a veterinarian license;
and his honorable discharge from the Nebraska Air National
Guard as a lieutenant colonel in 2014.
In the report, the referee acknowledged the seriousness of a
felony conviction and that this court has generally found dis-
barment to be the appropriate sanction for attorneys who have
received a felony conviction. Nevertheless, the referee stated
that such discipline was not required and that “the nature of
the conduct . . . ought to be evaluated more thoroughly than the
final classification of any criminal proceeding.”
The referee found Trembly’s conduct more egregious than
in cases where attorneys filed no income tax returns, receiv-
ing 1-year suspensions, but less egregious than in State ex rel.
Counsel for Dis. v. Mills1 (Mills I), where we issued a 2-year
suspension. Because the attorney in Mills I, Stuart B. Mills,
was convicted of a felony for the conduct we had disciplined
him for after our proceedings and he received no additional
suspension because of the conviction, the referee determined
Trembly’s felony conviction was essentially irrelevant to deter-
mining his discipline. In weighing the factors for imposing
discipline and the mitigating factors, the referee determined
the appropriate sanction for Trembly fell between cases involv-
ing 1-year and 2-year suspensions. Accordingly, the referee
recommended Trembly be suspended from the practice of law
for 18 months.
ASSIGNMENT OF ERROR
The only question before this court is the appropriate
discipline.
STANDARD OF REVIEW
[1] Because attorney discipline cases are original proceed-
ings before this court, we review a referee’s recommendations
1
State ex rel. Counsel for Dis. v. Mills, 267 Neb. 57, 671 N.W.2d 765 (2003).
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de novo on the record, reaching a conclusion independent of
the referee’s findings.2
ANALYSIS
[2-4] 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 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 attitude
of the respondent generally, and (6) the respondent’s present or
future fitness to continue in the practice of law.4 Each attorney
discipline case must be evaluated in light of its particular facts
and circumstances.5
Violation of a disciplinary rule concerning the practice
of law is a ground for discipline.6 Further, criminal offenses
committed by an attorney and involving violence, dishonesty,
breach of trust, or serious interference with the administration
of justice require imposition of attorney discipline.7
Trembly admitted being convicted of a felony for filing a
false individual income tax return and violating the Nebraska
Rules of Professional Conduct and his oath of office as an
attorney, § 7-104, in his answer to the formal charges. Thus,
we granted Counsel for Discipline’s motion for judgment on
the pleadings as to the facts substantiating the grounds for
2
State ex rel. Counsel for Dis. v. Halstead, 298 Neb. 149, 902 N.W.2d 701
(2017).
3
State ex rel. Counsel for Dis. v. Jorgenson, 298 Neb. 855, 906 N.W.2d 43
(2018).
4
Id.
5
Id.
6
Id.
7
See § 3-508.4, comment 2. See, also, State ex rel. Counsel for Dis. v. Walz,
291 Neb. 566, 869 N.W.2d 71 (2015).
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disciplinary action. We must now determine the appropriate
sanction.
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 suspension, on such
terms as the Court may designate; or (4) Censure and rep-
rimand by the Court; or (5) Temporary suspension by the
Court[.]”
[5,6] For purposes of determining the proper discipline of
an attorney, we consider the attorney’s actions both underly-
ing the events of the case and throughout the proceeding, as
well as any aggravating or mitigating factors.8 The propriety
of a sanction must be considered with reference to the sanc-
tions imposed in prior similar cases.9
Nature of Offense
We have stated that “[t]here should be no question that
the knowing failure to file tax returns and to pay taxes is a
serious violation of the ethical obligations of an attorney.”10
Trembly’s actions are even more serious in light of his affirma-
tive misrepresentation to the Internal Revenue Service (IRS) by
underreporting his income and signing that the amount he did
report was accurate. We have stated that the failure to file a tax
return is a crime of moral turpitude, which is now reflected in
a professional conduct rule prohibition against “commit[ing]
a criminal act that reflects adversely on the lawyer’s hon-
esty, trustworthiness or fitness as a lawyer in other respects;
[and] engag[ing] in conduct involving dishonesty, fraud, deceit
or misrepresentation.”11
8
Jorgenson, supra note 3.
9
Id.
10
State ex rel. NSBA v. Caskey, 251 Neb. 882, 889, 560 N.W.2d 414, 418
(1997).
11
§ 3-508.4.
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Another important consideration regarding the nature of
Trembly’s offense is the sheer magnitude of Trembly’s con-
duct. The fact that Trembly underreported over $1.1 mil-
lion in income makes the misrepresentation substantially more
egregious.
Deterrence and R eputation of Bar
Attorneys have an “‘obligation to uphold the laws of the
United States’ and [a] felony conviction thus ‘violate[s] basic
notions of honesty and endanger[s] public confidence in the
legal profession’” at the most egregious level.12 Accordingly,
crimes severe enough to warrant a felony conviction are those
most detrimental to the bar and require a sanction deterring other
members of the bar from committing such actions. While felo-
nies resulting from actions harming a client or committed in the
performance of duties as a legal professional are distinguishable
from felonies committed as a member of the public, both violate
the basic notion that attorneys are guardians of the law.
Protection of Public
Trembly’s actions were in his capacity as an individual, not
an attorney, and did not harm any clients.
Nevertheless, the goal of attorney discipline proceedings is
not as much punishment as a determination of whether it is in
the public interest to allow an attorney to keep practicing law.13
Providing for the protection of the public requires the imposi-
tion of an adequate sanction to maintain public confidence in
the bar.14
Attitude of R espondent
The referee stated, “Trembly has accepted responsibility for
the actions that form the basis of this proceeding, has satisfied
12
State ex rel. Counsel for Dis. v. Council, 289 Neb. 33, 47, 853 N.W.2d
844, 854 (2014).
13
Walz, supra note 7.
14
Id.
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all terms of his probation and has cooperated with Counsel for
[D]iscipline to resolve this matter expeditiously.”
Fitness to Continue Practice of Law
[7] There was no evidence presented of Trembly’s being
unfit to practice law based on any mental condition or any
other issue in personal life. As mentioned above, a criminal
act of any kind negatively reflects on an attorney’s fitness to
practice law. A pattern of noncompliance with our disciplinary
rules and cumulative acts of attorney misconduct are distin-
guishable from isolated incidents, therefore justifying more
serious sanctions.15
Trembly’s honorable discharge from the National Guard, his
lack of other misconduct in the legal and veterinary profes-
sions, and his commitment to remedying his improper action
each weigh in favor of his fitness. In fact, this single indis-
cretion, which occurred over 10 years ago, on his otherwise
unblemished record of 23 years of legal practice provides a
strong indication that he is fit to continue practicing and is
unlikely to reoffend.16
Aggravating Factors
As discussed above, the referee acknowledged that a felony
conviction for the conduct at issue in disciplinary proceedings
is significant, yet the referee gave little weight to Trembly’s
felony conviction in the recommended sanction. Neither
Counsel for Discipline nor Trembly takes exception with the
18-month suspension recommended by the referee. However,
Counsel for Discipline argues Trembly should be strongly
sanctioned for his felony conviction.
Trembly contends that the referee was correct in determin-
ing we have not adopted a bright-line rule requiring disbar-
ment for a felony conviction and the underlying conduct,
not the felony conviction, should be our focal point for
15
Jorgenson, supra note 3.
16
See Walz, supra note 7.
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determining discipline. He argues focusing on a conviction
for the underlying conduct places undue influence on “the
serendipitous exercise of unfettered discretion by a prosecut-
ing authority.”17
As the referee and parties acknowledge, we have not
adopted a bright-line rule requiring the disbarment of attor-
neys who receive a felony conviction. In State ex rel. Counsel
for Dis. v. Walz,18 we explained that “[a]lthough 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 lawyer’s fitness to practice law and that dis-
barment is considered to be the appropriate sanction.” We note
many of the cases cited in Walz included additional significant
aggravating factors to the felony conviction.19 Nevertheless,
we stand behind our statement that the serious nature of a
felony conviction alone is sufficient to warrant disbarment as
an appropriate sanction but reiterate that such a sanction is
not required.
Additionally, we do not believe this court should impose a
bright-line rule that a felony conviction creates a presumption
in favor of disbarment, as we have for acts of misappropriat-
ing funds and commingling.20 Unlike those violations, the acts
that may result in a felony conviction are simply too numerous
to apply a rigid rule governing our determination of how to
handle such conduct. Therefore, we agree with the parties that
the nature of the conduct underlying the conviction, as well
as the other factors for determining discipline, is the proper
focal point for our proceedings. Nevertheless, we also refuse
to adopt a rule that gives no effect to the existence of a felony
conviction for the actions of an attorney.
17
Brief for respondent at 9.
18
Walz, supra note 7, 291 Neb. at 575, 869 N.W.2d at 77.
19
See, Council, supra note 12; State ex rel. Counsel for Dis. v. Wintroub, 277
Neb. 787, 765 N.W.2d 482 (2009).
20
See Council, supra note 12.
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We are not persuaded by Trembly’s argument that the discre-
tionary decision of a prosecuting authority justifies disregard-
ing the ultimate result of criminal charges. Instead, holding
that the discretionary decision of an attorney charged with the
duty of enforcing the law justifies disregarding the ultimate
determination of a judge or jury on the charges brought would
only harm the legal profession. Such discretionary decisions
are based on the severity of the underlying offense and the
need to deter others from committing similar acts, among other
considerations; these are the same factors we consider in our
own determination for sanctions. Further, the end result of a
felony conviction carries with it substantial implications to the
reputation of the bar and the protection of the public deserving
of an appropriate disciplinary response.
We also reject the notion that our reinstatement of Mills
without further sanctions established a precedent that a felony
conviction is meaningless to the appropriate discipline for an
attorney’s conduct.21 In Mills I, we determined the discipline
appropriate for Mills’ misconduct before any conviction had
been imposed. Then, during our reinstatement proceedings in
State ex rel. Counsel for Dis. v. Mills 22 (Mills II), we consid-
ered only whether Mills affirmatively showed both that he had
fully complied with the order of suspension and that he would
not engage in practices offensive to the legal profession in
the future, which he had. Whether Mills should have received
further sanction for his felony conviction was not before this
court. Instead, we explained Mills had been disciplined for his
underlying conduct, with a 2-year suspension, and later for
his felony conviction in separate proceedings, with a private
reprimand, which Counsel for Discipline did not appeal to
this court.23
21
See State ex rel. Counsel for Dis. v. Mills, 272 Neb. 56, 736 N.W.2d 712
(2006).
22
Id.
23
Id.
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STATE EX REL. COUNSEL FOR DIS. v. TREMBLY
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[8] As we indicated in Walz, the fact that Mills had not
been convicted of a felony at the time of our disciplinary pro-
ceedings was relevant to our consideration of the appropriate
discipline.24 Therefore, we consider a felony conviction to be
a strongly aggravating factor in determining the sanction ulti-
mately imposed on an attorney.
Mitigating Factors
[9,10] Trembly fully cooperated with Counsel for Discipline,
admitted to his misconduct, took responsibility for his actions,
had practiced for many years, and had no previous disciplinary
history. Further, the violation he committed was a completely
isolated act not part of any pattern of misconduct. These are all
mitigating factors.25 Further, a continuing commitment to the
legal profession and the community is also a mitigating factor
in an attorney discipline case.26
[11] In his brief, Trembly argues that letters attesting to his
good character and honesty were submitted to the referee as
evidence. However, these letters were not mentioned in the
referee’s report, and Trembly has not taken exception to the
findings of fact in the referee’s report. When no exceptions to
the referee’s findings of fact in an attorney discipline case are
filed, the Nebraska Supreme Court may consider the referee’s
findings final and conclusive.27 We find the referee’s report
final and conclusive, so we do not consider any letters submit-
ted on Trembly’s behalf.
Prior Cases
On two prior occasions, we have issued sanctions to attor-
neys who received a felony conviction for the same offense
24
Walz, supra note 7.
25
Halstead, supra note 2; Council, supra note 12.
26
Council, supra note 12.
27
State ex rel. Counsel for Dis. v. Island, 296 Neb. 624, 894 N.W.2d 804
(2017).
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as Trembly.28 However, in both cases, the attorney voluntarily
surrendered his license and we determined disbarment was an
appropriate sanction without analysis.29 Accordingly, we do
not find either case binding here, where Trembly has not cho-
sen to voluntarily relinquish his license.
Further, our reinstatement proceedings on one of these
cases, State ex rel. NSBA v. Scott,30 evidences its dissimi-
larity from the present case. During that proceeding, we
reviewed the conduct of the attorney which formed the basis
for the disciplinary proceedings: He admitted to receiving a
felony conviction for filing a false income tax return and to
filing false income tax returns continuously for 15 years.31
In determining whether the attorney should be reinstated,
we considered the fact he still owed the State of Nebraska
$18,000 and the IRS $300,000 to $400,000 in unpaid taxes,
fees, and penalties and over $61,000 in restitution for his
underlying misconduct.32 Additionally, we noted that 1 week
before his disbarment, the attorney had received a 1-year
suspension for deliberately lying to a court, among other
misconduct.33
The cumulative acts of misconduct and an overall pattern
of violating our ethical rules, the failure to comply with the
restitution order of the sentence, and the voluntary license sur-
render each show a stark contrast between the circumstances
in State ex rel. NSBA v. Scott 34 and this case. We note our
proposition of law that disbarment ought not to be imposed
28
State ex rel. NSBA v. Scott, 252 Neb. 749, 566 N.W.2d 741 (1997); State
ex rel. NSBA v. Watkins, 252 Neb. 588, 563 N.W.2d 790 (1997).
29
Id.
30
State ex rel. NSBA v. Scott, 275 Neb. 194, 745 N.W.2d 585 (2008).
31
Id.
32
Id.
33
Id.
34
Id.
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for an isolated act unless the act is of such a nature that it is
indicative of permanent unfitness to practice law.35
We have also sanctioned attorneys in numerous cases for
failing to file income tax returns, each representing a pattern of
failure to do such.36 In these cases, we have consistently sanc-
tioned the attorneys with a 1-year suspension of their license.37
This case, however, is distinguishable from these cases based
on the affirmative misrepresentation, the felony conviction, and
the magnitude of the offense.
The referee found Mills I to be the most analogous case
to the facts here but also stated that the facts of Mills I were
more egregious. In Mills I, Mills’ misconduct included filing a
federal estate tax return form with the IRS containing affirma-
tive misrepresentations. Additionally, Mills showed a pattern
of misconduct by improperly notarizing and altering client
renunciations and deeds, lying to an IRS agent, encouraging
his clients to lie to an IRS agent, and causing a loss to the
estate he was handling.38
We considered these violations collectively as an isolated
incident in the attorney’s career because they occurred in
the course of one case.39 Other mitigating factors included
Mills’ full compliance with Counsel for Discipline, showing
of remorse, otherwise unblemished career of 30 years, and
community involvement. We sanctioned Mills with a 2-year
suspension.40
Also, as noted above, Mills was convicted of a felony
for his filing with the IRS after our proceedings in Mills I.
35
State ex rel. NSBA v. Douglas, 227 Neb. 1, 416 N.W.2d 515 (1987).
36
See, e.g., State ex rel. NSBA v. Duchek, 224 Neb. 777, 401 N.W.2d 484
(1987); State ex rel. Nebraska State Bar Assn. v. Fitzgerald, 165 Neb. 212,
85 N.W.2d 323 (1957).
37
Id.
38
Mills I, supra note 1.
39
Id.
40
Id.
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We noted in Walz that the absence of this aggravating fac-
tor when we sanctioned Mills may have affected the ulti­
mate sanction.41
[12] In light of the felony conviction Mills received and the
egregious conduct substantiating the grounds for disciplinary
action, we disapprove of the 2-year suspension imposed in
Mills I to the extent that it was considered sufficient.
We agree that Mills I includes similar misconduct and miti-
gating factors to the case at hand. While the breadth of Mills’
misconduct was greater than Trembly’s and represented a pat-
tern of misconduct, Trembly’s misconduct was of a greater
magnitude. Both attorneys had long careers with only one
period of misconduct, were fully cooperative with Counsel
for Discipline, and presented other mitigating factors. Based
on our determination that the 2-year suspension in Mills I was
insufficient and on the strongly aggravating factor of a felony
conviction, we think a 2-year suspension would also be insuf-
ficient here.
Sanction
Trembly’s felony conviction for filing a false income tax
return underreporting more than $1.1 million in income was
an offense of moral turpitude that requires a sanction suffi-
cient to maintain the public’s confidence in the bar and deter
such action in other attorneys. Further, the magnitude of the
violation and the resulting felony conviction aggravate the
misconduct. Conversely, Trembly’s attitude and demonstrated
fitness to continue practicing law, the fact that no clients were
harmed by his actions, and the numerous mitigating factors
each warrant leniency.
These factors make this case most analogous to Mills I,
in which we sanctioned the attorney with a 2-year suspen-
sion. Because the sanction imposed in Mills I was insufficient
for the violation and because of the aggravating factor of
41
Walz, supra note 7.
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Trembly’s felony conviction, we hold that a 3-year suspen-
sion of Trembly’s license is necessary to maintain the pub-
lic’s confidence in the bar and deter such action in other
attorneys.
CONCLUSION
Upon our de novo review of the record, we conclude the
appropriate sanction for Trembly’s misconduct is a 3-year sus-
pension. Accordingly, we find the referee’s recommendation of
an 18-month suspension to be in error.
Trembly is hereby suspended from the practice of law for a
period of 3 years, effective immediately. Trembly is directed to
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. Trembly is 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 of the
disciplinary rules within 60 days after an order imposing costs
and expenses, if any, is entered by the court.
Judgment of suspension.
Heavican, C.J., not participating in the decision.