State ex rel. Counsel for Dis. v. Owen

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/03/2022 12:07 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. OWEN
Cite as 311 Neb. 403State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. James A. Owen, respondent.
___ N.W.2d ___
Filed April 15, 2022. No. S-21-538.
Original action. Judgment of suspension.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
INTRODUCTION
This case is before the court on the conditional admission
filed by James A. Owen, the respondent, on February 2, 2022.
The court accepts the respondent’s conditional admission and
enters an order suspending the respondent from the practice of
law for a period of 6 months.
FACTS
The respondent was admitted to the practice of law in the
State of Nebraska on September 22, 2015. At all times rele­
vant to these proceedings, the respondent was engaged in the
practice of law in Plattsmouth, Nebraska.
On June 25, 2021, the Counsel for Discipline of the
Nebraska Supreme Court, the relator, filed formal charges
against the respondent. The formal charges consisted of two
counts. Pursuant to Neb. Ct. R. § 3-302, the respondent is
under the jurisdiction of the Committee on Inquiry of the Fifth
Judicial District.
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311 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. OWEN
Cite as 311 Neb. 403The formal charges generally allege violations relating to
competence, diligence, communications, fees, and misconduct,
some of which are attributable to his lack of appellate experi-
ence. The violations arose from the respondent’s representa-
tion of J.D. pursuant to a contract for legal services in which
the respondent agreed to represent J.D. in proceedings for
modification of a divorce decree and contempt. The contract
between the respondent and J.D. provided that J.D. advance
$2,500 toward the legal services. The contract provided that the
advanced fees would be deposited into the respondent’s trust
account and that he would withdraw funds upon completing
services at a rate of $150 per hour. The contract provided that
when expenses were incurred after the advanced payment was
depleted, the respondent would bill J.D. for expenses and/or
services at a rate of $150 per hour. However, the respondent
never provided itemized bills to J.D.
Count I.
The respondent appeared on behalf of J.D. in the district
court for Johnson County, Nebraska. On June 5, 2019, an order
of modification and parenting plan was issued in the case. On
July 5, the respondent filed a notice of intent to appeal. After
filing the transcript with the Nebraska Court of Appeals, the
respondent made no further filings or appearances on behalf
of J.D. in either the district court or the Court of Appeals.
On July 29, the Court of Appeals issued a show cause order
for J.D. to provide the court with a copy of the required child
support worksheet that was used to determine the amount of
J.D.’s child support obligation set forth in the June 5 modi-
fication order. The respondent failed to respond to the Court
of Appeals and failed to file the child support worksheet. The
matter was remanded to the Johnson County District Court,
and on September 26, the Johnson County District Court
entered a judgment on the mandate. The respondent failed to
notify J.D. that the appeal had been remanded. On or about
December 19, the respondent provided J.D. a draft copy of a
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. OWEN
Cite as 311 Neb. 403brief he wrote for the Court of Appeals and claimed it was due
to that court on December 23.
In his response to the relator, the respondent stated that he
believed that the appeal was still open and that a brief would
need to be submitted. He stated he did not inform J.D. that the
matter had been remanded because he was not aware that it
was his fault the matter had been remanded. He stated that
this was his first attempt at an appeal and that he was not well
versed in appellate practice. He billed J.D. in advance for the
appellate work.
The formal charges allege that by his actions, the respond­
ent 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 violated Neb. Ct. R.
of Prof. Cond. §§ 3-501.1 (rev. 2017) (competence), 3-501.3
(diligence), 3-501.4(a)(3) and (4) and (b) (communications),
3-501.5(a), (b), and (f) (fees), and 3-508.4(a) and (c) (rev.
2016) (misconduct).
Count II.
Count II also relates to the respondent’s representation of
J.D. After August 21, 2019, the respondent made no filings in
the district court case. Prior to March 12, 2020, the respondent
and J.D. discussed filing a motion with the court to change her
child support obligations due to the arrest of her ex-husband.
On March 12, the respondent texted J.D. stating, “‘It’s signed.
It’ll be uploaded to the court system overnight and I’ll be
able to access it tomorrow.’” Later in the text conversation,
the respondent, when asked whether it would suspend child
support, stated, “‘Yes. But that will only be good for 30 days
under an ex parte order.’”
On March 16, 2020, the respondent drafted an ex parte order
regarding J.D. Less than an hour later, the respondent met
with J.D. and her father. Subsequently, J.D. received a docu-
ment that purported to be a copy of an ex parte order signed
by a judge with an e-filed stamp on the top right corner with a
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311 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. OWEN
Cite as 311 Neb. 403filing date of March 13, 2020, that was identical to the draft ex
parte order created by the respondent on March 16. On April
2, J.D. contacted the clerk of the court in Johnson County and
was told that there was not an ex parte order filed or signed
by that judge. The transaction number on the falsified ex parte
order actually belonged to a different document filed earlier in
the same matter.
In April 2020, the respondent told J.D. that he had filed a
motion to transfer her case to another county. The respondent
told J.D. that a phone hearing was scheduled on the motion for
July 6. No motion to transfer was filed by the respondent, and
no hearing was noticed.
As set forth above, the respondent lied to J.D., claim-
ing he drafted and filed documents, and then the respondent
falsified a signature and filing information on a document
before providing it to her. Formal charges were drafted by the
Counsel for Discipline and were reviewed by the Committee
on Inquiry pursuant to Neb. Ct. R. § 3-309(H) (rev. 2011).
The Committee on Inquiry determined that there were reason-
able grounds for discipline of the respondent and that a public
interest would be served by the filing of formal charges. The
formal charges allege that by his actions, the respondent vio-
lated his oath of office as an attorney licensed to practice law
in the State of Nebraska as provided by § 7-104 and violated
§ 3-508.4 (misconduct).
On February 2, 2022, the respondent filed a conditional
admission pursuant to Neb. Ct. R. § 3-313(B) of the discipli­
nary rules, in which he conditionally admitted that he violated
his oath of office as an attorney and §§ 3-501.1 (competence),
3-501.3 (diligence), 3-501.4(a)(3) and (4) and (b) (commu-
nications), 3-501.5(a), (b), and (f) (fees), and 3-508.4(a) and
(c) (misconduct) of the professional conduct rules. In the
conditional admission, the respondent admitted that his con-
duct violated the identified rules of professional conduct. The
respond­ent knowingly does not challenge or contest the truth
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STATE EX REL. COUNSEL FOR DIS. v. OWEN
Cite as 311 Neb. 403of the matters conditionally asserted and waived all proceed-
ings against him in exchange for a suspension of 6 months.
The proposed conditional admission included a declaration
by the Counsel for Discipline, stating that the respondent’s pro-
posed discipline is appropriate under the facts of this case and
consistent with sanctions imposed in other disciplinary cases
with similar acts of misconduct.
ANALYSIS
Section 3-313, which is a component of our rules governing
procedures regarding attorney discipline, provides in perti-
nent part:
(B) At any time after the Clerk has entered a Formal
Charge against a Respondent on the docket of the Court,
the Respondent may file with the Clerk a conditional
admission of the Formal Charge in exchange for a stated
form of consent judgment of discipline as to all or part of
the Formal Charge pending against him or her as deter-
mined to be appropriate by the Counsel for Discipline
or any member appointed to prosecute on behalf of the
Counsel for Discipline; such conditional admission is
subject to approval by the Court. The conditional admis-
sion shall include a written statement that the Respondent
knowingly admits or knowingly does not challenge or
contest the truth of the matter or matters conditionally
admitted and waives all proceedings against him or her in
connection therewith. If a tendered conditional admission
is not finally approved as above provided, it may not be
used as evidence against the Respondent in any way.
Pursuant to § 3-313, and given the conditional admission,
we find that the respondent knowingly does not challenge or
contest the matters conditionally admitted and has waived
proceedings against him in connection therewith. We fur-
ther determine that by his conduct, the respondent violated
§§ 3-501.1 (competence), 3-501.3 (diligence), 3-501.4(a)(3)
and (4) and (b) (communications), 3-501.5(a), (b), and (f)
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STATE EX REL. COUNSEL FOR DIS. v. OWEN
Cite as 311 Neb. 403(fees), and 3-508.4(a) and (c) (misconduct) of the professional
conduct rules and his oath of office as an attorney licensed in
the State of Nebraska. Despite the seriousness of the conduct,
we note that the respondent was relatively new to the practice
of law and cooperated fully with the Counsel for Discipline.
We further note that under Neb. Ct. R. § 3-310(S) (rev. 2022)
of the disciplinary rules, the respondent is subject to a charac-
ter and fitness evaluation before he is readmitted. Upon due
consideration, the court approves the conditional admission
and enters the orders as indicated below.
CONCLUSION
The respondent is suspended from the practice of law for a
period of 6 months. The respondent shall comply with Neb. Ct.
R. § 3-316 (rev. 2014), and upon failure to do so, the respond­
ent shall be subject to punishment for contempt of this court.
The respondent is also directed to pay costs and expenses in
accordance with § 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.