State ex re. Counsel for Dis. v. Island , 296 Neb. 624 ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    06/30/2017 01:11 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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    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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    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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    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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    STATE EX REL. COUNSEL FOR DIS. v. ISLAND
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    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.
    

Document Info

Docket Number: S-16-715

Citation Numbers: 296 Neb. 624

Filed Date: 5/5/2017

Precedential Status: Precedential

Modified Date: 6/30/2017