State ex rel. Counsel for Dis. v. Robak

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www.nebraska.gov/apps-courts-epub/
12/28/2018 08:09 AM CST
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. ROBAK
Cite as 301 Neb. 748State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Frank E. Robak, Sr., respondent.
___ N.W.2d ___
Filed November 30, 2018. No. S-18-165.
1. Disciplinary Proceedings. Violation of a disciplinary rule concerning
the practice of law is a ground for discipline.
2. Disciplinary Proceedings: Rules of the Supreme Court. Under Neb.
Ct. R. § 3-304, the Nebraska Supreme Court may impose one or more of
the following disciplines: (1) disbarment; (2) suspension; (3) probation
in lieu of or subsequent to suspension, on such terms as the court may
designate; or (4) censure and reprimand.
3. Disciplinary Proceedings. 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 offender generally, and (6) the offender’s present or
future fitness to continue in the practice of law.
4. ____. With respect to the imposition of attorney discipline in an indi-
vidual case, the Nebraska Supreme Court evaluates each attorney disci-
pline case in light of its particular facts and circumstances.
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 coop-
eration with the discipline process is fundamental to the credibility of
attorney disciplinary proceedings.
Original action. Judgment of suspension.
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Nebraska Supreme Court A dvance Sheets
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STATE EX REL. COUNSEL FOR DIS. v. ROBAK
Cite as 301 Neb. 748Julie L. Agena, Assistant Counsel for Discipline, for relator.
No appearance for respondent.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
INTRODUCTION
The Counsel for Discipline of the Nebraska Supreme Court,
relator, filed formal charges against Frank E. Robak, Sr., for
violations of the Nebraska Rules of Professional Conduct and
his oath of office as an attorney. Robak failed to respond. We
then granted relator’s motion for judgment on the pleadings
limited to the facts but reserved ruling on the appropriate
discipline. Robak defaulted in submitting a brief. We now
conclude that the uncontested violations and the state of our
record mandate that we indefinitely suspend Robak from the
practice of law.
BACKGROUND
Robak was admitted to the practice of law in Nebraska in
September 1983. At all relevant times, he engaged in the prac-
tice of law in Omaha, Nebraska.
The record in this case is composed of the uncontested for-
mal charges. In May 2013, C.H. retained Robak to represent
him in a civil action and paid Robak $5,000. Over the fol-
lowing 3 years, Robak sporadically communicated with C.H.,
with the communication mostly being initiated by C.H. Robak
repeatedly told C.H. that he was working on C.H.’s case. In
October 2016, Robak declined C.H.’s request for a refund of
his money.
C.H. filed a grievance. Relator sent C.H.’s grievance to
Robak, and Robak provided a written response. Robak reported
that he had been hospitalized several times since October 2014,
that the illness took a toll on his law practice, that he informed
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STATE EX REL. COUNSEL FOR DIS. v. ROBAK
Cite as 301 Neb. 748C.H. he was “‘not in a position’” to provide a full refund, and
that he was on Social Security disability. Relator sent two writ-
ten requests for additional information from Robak, but Robak
failed to respond. The matter was upgraded to a formal griev-
ance, but Robak did not respond.
Relator subsequently filed formal charges against Robak.
According to the formal charges, Robak violated his oath of
office as an attorney1 and violated provisions of the Nebraska
Rules of Professional Conduct. Specifically, relator alleged that
Robak violated rules regarding competence,2 diligence,3 bar
admission and disciplinary matters,4 and misconduct.5 Robak
did not file an answer to the formal charges.
Relator moved for judgment on the pleadings. Robak did
not file an objection. We granted the motion as to the facts and
directed the parties to brief the issue of discipline. Relator rec-
ommended a suspension of at least 2 years followed by 2 years
of monitored probation. Robak did not file a brief.
ANALYSIS
[1] Violation of a disciplinary rule concerning the practice of
law is a ground for discipline.6 Because Robak did not file an
answer to the formal charges and we granted relator’s motion
for judgment on the pleadings, Robak’s violation of several
disciplinary rules has been established. The only issue before
us is the appropriate discipline.
[2,3] Under Neb. Ct. R. § 3-304, we may impose one or more
of the following disciplines: (1) disbarment; (2) suspension;
1
Neb. Rev. Stat. § 7-104 (Reissue 2012).
2
Neb. Ct. R. of Prof. Cond. § 3-501.1.
3
Neb. Ct. R. of Prof. Cond. § 3-501.3.
4
Neb. Ct. R. of Prof. Cond. § 3-508.1(b).
5
Neb. Ct. R. of Prof. Cond. § 3-508.4(a) and (d).
6
State ex rel. Counsel for Dis. v. Wolfe, ante p. 117, 918 N.W.2d 244(2018).
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STATE EX REL. COUNSEL FOR DIS. v. ROBAK
Cite as 301 Neb. 748(3) probation in lieu of or subsequent to suspension, on such
terms as we may designate; or (4) censure and reprimand.7
To determine whether and to what extent discipline should be
imposed in an attorney discipline proceeding, this court consid-
ers 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 offender generally, and (6) the offender’s present
or future fitness to continue in the practice of law.8
[4,5] With respect to the imposition of attorney discipline in
an individual case, we evaluate each attorney discipline case
in light of its particular facts and circumstances.9 For purposes
of determining the proper discipline of an attorney, this court
considers the attorney’s acts both underlying the events of the
case and throughout the proceeding, as well as any aggravat-
ing or mitigating factors.10
The record on these formal charges establishes both client
neglect and failure to cooperate with the disciplinary process.
Robak failed to provide competent and diligent representa-
tion to C.H. and failed to communicate with him regard-
ing his legal action. After C.H. filed a grievance, Robak
initially responded to the grievance. But he thereafter failed
to provide information requested by relator, failed to respond
to the formal grievance notice, failed to file an answer to
the formal complaint, and failed to file an answer to the for-
mal charges.
[6] Responding to inquiries and requests for information
from relator is an important matter, and an attorney’s coop-
eration with the discipline process is fundamental to the
7
State ex rel. Counsel for Dis. v. Tonderum, 286 Neb. 942, 840 N.W.2d 487(2013).
8
State ex rel. Counsel for Dis. v. Wolfe, supra note 6.
9
Id.
10
Id.
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STATE EX REL. COUNSEL FOR DIS. v. ROBAK
Cite as 301 Neb. 748credibility of attorney disciplinary proceedings.11 Failing to
participate in the disciplinary process is a very serious mat-
ter.12 Moreover, Robak has not filed a brief with this court
regarding the appropriate discipline.
In responding to C.H.’s grievance, Robak alluded to health
issues. But his failure to provide additional information and to
answer the formal charges leaves this potential mitigating fac-
tor undeveloped. One factor weighs in Robak’s favor. Robak
has been licensed to practice law for 35 years, and the record
does not show any previous discipline in Nebraska.
In considering the appropriate sanction, we are mindful
of the sanctions imposed in similar cases. In several cases,
we have indefinitely suspended the attorney. For example,
in State ex rel. Counsel for Dis. v. Jorgenson,13 an attorney
violated disciplinary rules in two separate incidents involving
noncompliance and lack of communication. As an aggravating
factor, we recognized that in 2012, the attorney received a
public reprimand and 1 year’s probation for incidents involv-
ing entering into a contingency fee agree­ment to represent
a client when the attorney should have known the client’s
claims were time barred and entering into contingency fee
agreements not committed to writing. Further, the attorney
failed to cooperate with the disciplinary process. We sus-
pended the attorney indefinitely, with a minimum suspen-
sion of 2 years. In State ex rel. Counsel for Dis. v. Tighe,14
which involved two consolidated cases against an attorney,
the attorney failed to work competently and failed to respond
to inquir­ies regarding his clients’ grievances. We ordered
11
See State ex rel. Counsel for Dis. v. Jorgenson, 298 Neb. 855, 906 N.W.2d
43 (2018).
12
Id.13
Id.14
State ex rel. Counsel for Dis. v. Tighe, 295 Neb. 30, 886 N.W.2d 530(2016).
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STATE EX REL. COUNSEL FOR DIS. v. ROBAK
Cite as 301 Neb. 748an indefinite suspension. We imposed an indefinite suspen-
sion, with a minimum suspension of 3 years, in State ex rel.
Counsel for Dis. v. Tonderum.15 There, an attorney disclosed
confidential information regarding a former client and then
failed to respond to formal charges filed against her.
In other similar cases, we have suspended the attorney for
a set term followed by a probationary period. In State ex rel.
Counsel for Dis. v. Ubbinga,16 an attorney failed to commu-
nicate with and complete work for a client, failed to provide
the client with his file, and failed to cooperate with relator’s
investigation in a timely manner. We recognized as a mitigating
factor the lack of any prior discipline. We suspended the attor-
ney for 1 year and conditioned reinstatement on a 2-year period
of probation. In State ex rel. Counsel for Dis. v. Moore,17 we
suspended an attorney for 2 years with 2 years’ moni­ tored
probation upon reinstatement. In that case, the attorney even­
tually filed an answer to the formal charges and later submitted
a conditional admission of two counts of client neglect and
failure to communicate.
Under the facts of this case, we conclude that the appropri-
ate discipline is an indefinite suspension, with a minimum
suspension of 1 year, followed by 2 years’ monitored proba-
tion. Any application for reinstatement filed by Robak after
the minimum suspension period shall include a showing under
oath which demonstrates his fitness to practice law and fully
addresses the circumstances of the instant violation.
Upon reinstatement, Robak shall comply with the follow-
ing terms of monitored probation: The monitoring shall be by
an attorney licensed to practice law in the State of Nebraska
and who shall be approved of by the Counsel for Discipline.
15
State ex rel. Counsel for Dis. v. Tonderum, supra note 7.
16
State ex rel. Counsel for Dis. v. Ubbinga, 295 Neb. 995, 893 N.W.2d 694(2017).
17
State ex rel. Counsel for Dis. v. Moore, 294 Neb. 283, 881 N.W.2d 923(2016).
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Cite as 301 Neb. 748Robak shall submit a monitoring plan with his application for
reinstatement which shall include, but not be limited to, the
following: During the first 6 months of probation, Robak will
meet with and provide the monitor a weekly list of cases for
which Robak is currently responsible, which list shall include
the date the attorney-client relationship began; the general type
of case; the date of last contact with the client; the last type
and date of work completed on the file (pleading, correspond­
ence, document preparation, discovery, or court hearing); the
next type of work and date that work should be completed on
the case; any applicable statutes of limitations and their dates;
and the financial terms of the relationship (hourly, contingency,
et cetera). After the first 6 months through the end of proba-
tion, Robak shall meet with the monitor on a monthly basis and
provide the monitor with a list containing the same informa-
tion as set forth above. Robak shall work with the monitor to
develop and implement appropriate office procedures to ensure
protection of the clients’ interests. Robak shall reconcile his
trust account within 10 working days of receipt of the monthly
bank statement and provide the monitor with a copy within
5 working days. Robak shall submit a quarterly compliance
report to the Counsel for Discipline, demonstrating adherence
to the foregoing terms of probation. The quarterly report shall
include a certification by the monitor that the monitor has
reviewed the report and that Robak continues to abide by the
terms of probation. If at any time the monitor believes Robak
has violated the professional conduct rules or has failed to
comply with the terms of probation, the monitor shall report
the same to the Counsel for Discipline. Robak shall pay all of
the costs in this case, including the fees and expenses of the
monitor, if any.
CONCLUSION
We order that Robak be indefinitely suspended from the
practice of law in the State of Nebraska, with a minimum
suspension of 1 year, effective immediately. Robak may apply
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STATE EX REL. COUNSEL FOR DIS. v. ROBAK
Cite as 301 Neb. 748for reinstatement consistent with the terms outlined above.
Robak’s reinstatement shall be conditioned upon his being on
monitored probation for a period of 2 years following reinstate-
ment, subject to the terms set forth above. Acceptance of an
application for reinstatement is conditioned on the application’s
being accompanied by a proposed monitored probation plan,
the terms of which are consistent with this opinion.
Robak 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. Robak 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 within 60 days after an order imposing costs and
expenses, if any, is entered by the court.
Judgment of suspension.