State ex rel. Counsel for Dis. v. Island

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/05/2017 09:14 AM CDT
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. ISLAND
Cite as 296 Neb. 624
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Bell Island, respondent.
___ N.W.2d ___
Filed May 5, 2017. No. S-16-715.
Original action. Judgment of public reprimand.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Per Curiam.
INTRODUCTION
On July 22, 2016, formal charges containing one count
were filed by the office of the Counsel for Discipline of the
Nebraska Supreme Court, relator, against Bell Island, respond­
ent. Respondent filed an answer to the formal charges on
September 19. A referee was appointed, and the referee held a
hearing on the charges.
The referee filed a report on February 6, 2017. With respect
to the formal charges, the referee concluded that respondent’s
conduct had violated the following provisions of the Nebraska
Rules of Professional Conduct: Neb. Ct. R. of Prof. Cond.
§§ 3-503.6 (trial publicity), 3-504.1(a) (truthfulness in state-
ments to others), and 3-508.4(a) and (d) (misconduct). With
respect to the discipline to be imposed, the referee recom-
mended a public reprimand. Neither relator nor respondent
filed exceptions to the referee’s report. The parties filed a
joint motion for judgment on the pleadings under Neb. Ct. R.
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. ISLAND
Cite as 296 Neb. 624
§ 3-310(L) (rev. 2014) of the disciplinary rules. We grant the
motion for judgment on the pleadings and impose discipline
as indicated below.
STATEMENT OF FACTS
Respondent was admitted to the practice of law in the State
of Nebraska on September 22, 1994. At all times relevant to
these proceedings, he was engaged in the practice of law in
Gering, Nebraska.
On July 22, 2016, relator filed formal charges against
respondent. The formal charges contain one count generally
regarding respondent’s statements to the press regarding his
client’s refusal to testify at a murder trial. The formal charges
alleged that by his conduct, respondent violated his oath of
office as an attorney pursuant to Neb. Rev. Stat. § 7-104
(Reissue 2012) and Neb. Ct. R. of Prof. Cond. § 3-504.4(a)
(respect for rights of third persons), as well as professional
conduct rules §§ 3-503.6(a), 3-504.1(a), and 3-508.4(a), (c),
and (d). On September 19, respondent filed his answer to the
formal charges, generally denying the allegations set forth in
the formal charges.
A referee was appointed on October 5, 2016. The referee
held a hearing on the formal charges on December 21.
After the hearing, the referee filed his report and recom-
mendation on February 6, 2017. The substance of the ref-
eree’s findings may be summarized as follows: In July 2008,
a 2-year-old child was murdered in her home in Scotts Bluff
County. At the time she was murdered, the only adults present
in the home were the child’s mother, who became respond­
ent’s client; the client’s boyfriend, Dustin Chauncey; and their
friend. A law enforcement investigation ensued, but no crimi-
nal charges were filed at that time. During the investigation,
in late 2008 or early 2009, respondent began representing the
client. Prior to respondent’s involvement, the client had given
several inconsistent statements to law enforcement regard-
ing the events that occurred on the night that her child was
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. ISLAND
Cite as 296 Neb. 624
murdered, but after respondent became involved, the client
gave no further statements to law enforcement.
Following pressure from the community, the district court
for Scotts Bluff County appointed James Zimmerman to con-
duct a grand jury. The court appointed Zimmerman from
outside the Scotts Bluff County Attorney’s office in order to
alleviate community concerns that the county attorney had
not brought criminal charges. The grand jury convened and
returned an indictment against Chauncey for intentional child
abuse resulting in death, a Class IB felony. The grand jury also
indicted the client as an accessory after the fact in the death
of her child, a Class IV felony. The charges against the client
were dismissed because the statute of limitations had run. The
charges against Chauncey proceeded to trial.
Chauncey’s trial commenced on February 23, 2015.
Zimmerman wanted the client to testify. On February 24,
Zimmerman sent respondent an email containing an outline
of the questions which Zimmerman intended to ask the cli-
ent during his direct examination of her. Respondent did not
respond to Zimmerman’s email. The client invoked her Fifth
Amendment right to remain silent, and Zimmerman moved
to grant the client immunity regarding her testimony. The
court ordered that the client give her testimony and that if she
refused, she would be held in contempt of court. After confer-
ring with respondent, the client refused to testify, and she was
held in contempt of court by an order filed February 24. On
February 25, the client was brought back before the court. She
again indicated that she was refusing to testify, and she contin-
ued to be held in contempt of court.
During the trial on February 25, 2015, Zimmerman learned
that a press release had been issued to a local radio station.
The press release had been issued at respondent’s direction on
behalf of his client, and it stated:
“[The client] continues to desire to cooperate with the
Prosecution, however, the only testimony they want to
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296 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. ISLAND
Cite as 296 Neb. 624
believe is their version of the truth. The Prosecution’s
version of the truth, while inconsistent with the actual
events, forces [respondent’s client] to either lie or face
perjury charges. She continues to desire justice for her
daughter . . . but will not lie to achieve that result.”
Chauncey’s trial was concluded on February 26, 2015, and
Chauncey was found guilty of intentional child abuse resulting
in death. See State v. Chauncey, 295 Neb. 453, 890 N.W.2d
453 (2017). The client was released from custody, because
there was no longer a need for her to testify.
On April 27, 2015, after the completion of Chauncey’s
trial, Zimmerman submitted a formal complaint to relator in
which he outlined the formal charges he felt should be brought
against respondent.
In the referee’s report on the formal charges, the referee
determined that respondent knowingly made false statements
of material fact and/or law to a third person, made an extra-
judicial statement that was disseminated by means of public
communication that would have had a substantial likelihood
of materially prejudicing the adjudicative proceeding at issue,
and engaged in conduct which is prejudicial to the administra-
tion of justice. Accordingly, the referee found that respondent
violated professional conduct rules §§ 3-503.6, 3-504.1(a),
and 3-508.4(a) and (d). However, the referee found that
respondent did not violate his oath of office as an attorney or
professional conduct rule § 3-504.4.
The referee identified certain aggravating factors, includ-
ing that the nature of the press release was highly offensive
given the fact that it directly called into question Zimmerman’s
integrity in the prosecution of the criminal proceedings against
Chauncey. The referee stated that the public nature of the press
release called into question the reputation of the bar in a com-
munity that was already struggling with the lengthy delay in
the prosecution of this matter. The referee also recognized that
the discipline to be imposed must be clear in order to deter
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296 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. ISLAND
Cite as 296 Neb. 624
others who feel the need to issue such press releases. The ref-
eree further noted that respondent had received a public repri-
mand for an incident that occurred around the same time as the
incident at issue in this case.
The referee also identified certain mitigating factors, includ-
ing that respondent’s actions did not endanger the public, that
respondent regretted the wording of the press release, and that
respondent did not mean to call into question Zimmerman’s
integrity and ethics. The referee also noted that other than the
public reprimand noted above, respondent had not received
any other discipline, and the referee stated: “Two incidents
occurring near the same time over a twenty (20) year period
of practice, would not indicate that he is not fit to continue the
practice of law in the State of Nebraska.”
With respect to the sanctions to be imposed for the forego-
ing actions, considering the aggravating and mitigating factors,
the referee recommended a public reprimand.
ANALYSIS
In view of the fact that neither party filed written exceptions
to the referee’s report, relator filed a motion for judgment on
the pleadings under § 3-310(L). When no exceptions to the
referee’s findings of fact are filed, the Nebraska Supreme Court
may consider the referee’s findings final and conclusive. State
ex rel. Counsel for Dis. v. Ubbinga, 295 Neb. 995, ___ N.W.2d
___ (2017). Based upon the findings in the referee’s report,
which we consider to be final and conclusive, we conclude
that the formal charges are supported by clear and convinc-
ing evidence, and the motion for judgment on the pleadings
is granted.
A proceeding to discipline an attorney is a trial de novo on
the record. State ex rel. Counsel for Dis. v. Thebarge, 289 Neb.
356, 854 N.W.2d 914 (2014). Violation of a disciplinary rule
concerning the practice of law is a ground for discipline, and
disciplinary charges against an attorney must be established
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STATE EX REL. COUNSEL FOR DIS. v. ISLAND
Cite as 296 Neb. 624
by clear and convincing evidence. State ex rel. Counsel for
Dis. v. Sundvold, 287 Neb. 818, 844 N.W.2d 771 (2014). See,
also, State ex rel. Counsel for Dis. v. Tighe, 295 Neb. 30, 886
N.W.2d 530 (2016).
Based on the record and the undisputed findings of the
referee, we find that the above-referenced facts have been
established by clear and convincing evidence. Based on the
foregoing evidence, we conclude that by virtue of respondent’s
conduct, respondent has violated §§ 3-503.6, 3-504.1(a), and
3-508.4(a) and (d) of the professional conduct rules.
We have stated that the basic issues in a disciplinary pro-
ceeding against an attorney are whether discipline should be
imposed and, if so, the appropriate discipline under the cir-
cumstances. See State ex rel. Counsel for Dis. v. Ubbinga,
supra. Neb. Ct. R. § 3-304 of the disciplinary rules provides
that the following may be considered as discipline for attor-
ney misconduct:
(A) Misconduct shall be grounds for:
(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 desig-
nate; 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.
See, also, § 3-310(N).
With respect to the imposition of attorney discipline in an
individual case, each attorney discipline case must be eval­
uated in light of its particular facts and circumstances. State
ex rel. Counsel for Dis. v. Ubbinga, supra. For purposes of
determining the proper discipline of an attorney, we consider
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STATE EX REL. COUNSEL FOR DIS. v. ISLAND
Cite as 296 Neb. 624
the attorney’s actions both underlying the events of the case
and throughout the proceeding, as well as any aggravating or
mitigating factors. Id.
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 reputa-
tion of the bar as a whole, (4) the protection of the public, (5)
the attitude of the respondent generally, and (6) the respond­
ent’s present or future fitness to continue in the practice of
law. Id.
The evidence in the present case establishes, among other
facts, that respondent knowingly issued a press release on
behalf of his client which called into question the integrity
of Zimmerman, who was the attorney prosecuting the crimi-
nal case against Chauncey. The press release indicated that
Zimmerman wanted respondent’s client to testify at the trial
and “‘to either lie or face perjury.’” More fully, the press
release stated that “‘[t]he Prosecution’s version of the truth,
while inconsistent with the actual events, forces [the cli-
ent] to either lie or face perjury charges. She continues to
desire justice for her daughter . . . but will not lie to achieve
that result.’”
As aggravating factors, we note, as did the referee, that the
press release was offensive and that the public nature of the
press release called into question the reputation of the bar as a
whole. We further note that respondent had received a public
reprimand for an incident that occurred around the same time
as the incident at issue in this case.
As mitigating factors, we acknowledge, as did the referee,
that respondent has indicated that he regretted the wording of
the press release and that he did not mean to call into question
Zimmerman’s integrity and ethics. We further note, as did the
referee, that other than a prior public reprimand, respondent
has not received any other discipline.
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
STATE EX REL. COUNSEL FOR DIS. v. ISLAND
Cite as 296 Neb. 624
We have considered the record, the findings which have
been established by clear and convincing evidence, and the
applicable law. Upon due consideration, the court finds that
respondent should be publicly reprimanded.
CONCLUSION
The motion for judgment on the pleadings is granted.
Respondent is publicly reprimanded. Respondent is directed
to pay costs and expenses in accordance with § 3-310(P) and
Neb. Ct. R. § 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 public reprimand.