State ex rel. Counsel for Dis. v. Panick

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/15/2022 01:05 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. PANICK
Cite as 311 Neb. 627State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Heather C. Panick, respondent.
___ N.W.2d ___
Filed May 20, 2022. No. S-21-709.
1. Disciplinary Proceedings. The basic issues in a disciplinary proceeding
against an attorney are whether discipline should be imposed and, if so,
the type of discipline appropriate under the circumstances.
2. Disciplinary Proceedings: States: Proof. In a reciprocal discipline
proceeding, a judicial determination of attorney misconduct in one
jurisdiction is generally conclusive proof of guilt and is not subject to
relitigation in the second jurisdiction.
3. Disciplinary Proceedings: States. Although a judicial determination
of attorney misconduct in another state is generally given conclusive
effect, the Nebraska Supreme Court is entitled, in a reciprocal discipline
action, to independently assess the facts and independently determine
the appropriate disciplinary action to be taken against the attorney in
this state.
4. Disciplinary Proceedings. In imposing attorney discipline, the Nebraska
Supreme Court evaluates each case 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.
Judgment of suspension.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. PANICK
Cite as 311 Neb. 627Per Curiam.
INTRODUCTION
The issue in this attorney reciprocal discipline case is the
appropriate sanction to be imposed. The State Bar of Texas
suspended the respondent, Heather C. Panick, from the prac-
tice of law for 2 years. The relator, the Counsel for Discipline
of the Nebraska Supreme Court, moved for reciprocal dis-
cipline. We grant the motion for reciprocal discipline and
impose a 2-year suspension, retroactive to commencement of
the Texas suspension.
BACKGROUND
The record in this case is limited. It is composed of the
motion for reciprocal discipline, this court’s order to show
cause, and the parties’ responses to that order.
The respondent was admitted to the practice of law in the
State of Texas. Later, on August 21, 2017, she was admitted to
the practice of law in the State of Nebraska.
On July 14, 2021, the State Bar of Texas issued an “Agreed
Judgment of Active Suspension.” The discipline arose out of
the respondent’s “engag[ing] in conduct involving dishonesty,
fraud, deceit or misrepresentation” while serving as volun-
tary treasurer for a youth sports club. The State Bar of Texas
found that the respondent violated Texas Disciplinary Rule of
Professional Conduct 8.04(a)(3), which is the equivalent of
Neb. Ct. R. of Prof. Cond. § 3-508.4(c) (rev. 2016). It sus-
pended the respondent from the practice of law in Texas for 2
years beginning on September 1, 2021, and ending on August
31, 2023. The State Bar of Texas further ordered the respond­
ent to complete an additional 10 hours of continuing legal
education in the area of trust accounts (3 hours), fiduciary
duties (3 hours), handling client funds (3 hours), and ethics
(1 hour).
The respondent provided a self-report of her suspension to
the relator. The relator then filed a motion for reciprocal disci-
pline against the respondent.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. PANICK
Cite as 311 Neb. 627This court issued an order to show cause as to why we
should not impose reciprocal discipline. In response, the relator
requested “a disciplinary sanction warranted by the facts” but
made no particular recommendation.
The respondent labeled her response to the show cause
order as confidential. She requested discipline less severe than
the Texas discipline. The respondent suggested probation in
lieu of suspension, reprimand by the court, reprimand by the
Disciplinary Review Board, or suspension for a period less
than 1 year. Her unsworn response indicates that she had per-
sonal issues at the time of her misconduct, which we do not
detail here.
After the parties were notified that the case was sched-
uled for oral argument on March 31, the respondent arranged
to appear for argument via videoconferencing. The day prior
to oral argument, the respondent filed a “Motion for Leave to
File Supplemental Statement in Lieu of Testimony.” The next
day, following argument, we overruled the motion. Neither
the respondent nor anyone acting on her behalf appeared
for argument.
ANALYSIS
[1-3] The basic issues in a disciplinary proceeding against
an attorney are whether discipline should be imposed and,
if so, the type of discipline appropriate under the circum­
stances. 1 In a reciprocal discipline proceeding, a judicial
determination of attorney misconduct in one jurisdiction is
generally conclusive proof of guilt and is not subject to reliti-
gation in the second jurisdiction. 2 Although a judicial deter-
mination of attorney misconduct in another state is generally
given conclusive effect, this court is entitled, in a recipro-
cal discipline action, to independently assess the facts and
1
State ex rel. Counsel for Dis. v. Beauvais, 308 Neb. 704, 956 N.W.2d 298(2021).
2
Id.- 630 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. PANICK
Cite as 311 Neb. 627independently determine the appropriate disciplinary action to
be taken against the attorney in this state. 3
Our disciplinary rules set forth the discipline that may
be ­considered for attorney misconduct. The disciplinary
options are:
(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. 4
Another disciplinary rule 5 provides in part that upon receipt
of appropriate notice that a member of Nebraska’s bar has
been disciplined in another jurisdiction, this court may enter
an order imposing the identical discipline, or greater or lesser
discipline as the court deems appropriate.
[4,5] In imposing attorney discipline, we evaluate each case
in light of its particular facts and circumstances. 6 In response
to our order to show cause, the respondent requests less severe
discipline. For purposes of determining the proper discipline
of an attorney, we consider the attorney’s actions both under-
lying the events of the case and throughout the proceeding,
as well as any aggravating or mitigating factors. 7 The rela-
tor’s brief points out that the respondent’s misconduct was
3
State ex rel. NSBA v. Gallner, 263 Neb. 135, 638 N.W.2d 819 (2002).
4
Neb. Ct. R. § 3-304(A).
5
Neb. Ct. R. § 3-321(A).
6
State ex rel. Counsel for Dis. v. Beauvais, supra note 1.
7
State ex rel. Counsel for Dis. v. Barfield, 305 Neb. 79, 938 N.W.2d 863(2020).
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. PANICK
Cite as 311 Neb. 627unrelated to her law practice, did not implicate any breach in
her duty to her clients, and did not involve a failure to respond
to disciplinary inquiries. It appears she had no prior discipline.
We take into consideration the respondent’s explanation of the
situation she was in at the time of her misconduct. But we also
observe that the respondent had an opportunity to contest the
charge and offer mitigating circumstances during the investi-
gatory hearing in the Texas proceeding, that she does not chal-
lenge the discipline ordered by the State Bar of Texas, and that
she did not request a hearing in Nebraska.
Upon due consideration of our record and the fact that the
State Bar of Texas held an investigatory hearing in the matter,
we determine that suspension is appropriate. During oral argu-
ment, the relator suggested that reciprocal discipline retroactive
to September 1, 2021, would be appropriate. We agree. We
grant the motion for reciprocal discipline and impose a suspen-
sion of 2 years, retroactive to the commencement of the Texas
suspension and ending on August 31, 2023.
CONCLUSION
It is the judgment of this court that the respondent be sus-
pended from the practice of law in the State of Nebraska for 2
years, retroactive to the September 1, 2021, suspension in Texas
and ending on August 31, 2023. The respondent shall comply
with all notification requirements by suspended members pro-
vided by Neb. Ct. R. § 3-316 (rev. 2014), and upon failure to
do so, she shall be subject to punishment for contempt of this
court. The respondent 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. 2022) and 3-323(B) of
the disciplinary rules within 60 days after an order imposing
costs and expenses, if any, is entered by the court.
Judgment of suspension.