State ex rel. Counsel for Dis. v. Connor ( 2014 )

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CONCLUSION
For the reasons explained above, O’Brien failed to present
evidence of a genuine issue of material fact that the permis-
sible reason of poor job performance articulated by BPS for
his termination was a pretext; therefore, BPS is entitled to
judgment as a matter of law. The Court of Appeals did not err
when it affirmed the district court’s order granting summary
judgment in favor of BPS.
Affirmed.
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. James E. Connor, respondent.
___ N.W.2d ___
Filed December 12, 2014. No. S-13-963.
1. Disciplinary Proceedings: Appeal and Error. In attorney discipline and admis-
sion cases, the Nebraska Supreme Court reviews recommendations de novo on
the record, reaching a conclusion independent of the referee’s findings.
2. Disciplinary Proceedings. To determine whether and to what extent discipline
should be imposed in a lawyer 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 respondent generally, and
(6) the respondent’s present or future fitness to continue in the practice of law.
3. ____. Each attorney discipline case must be evaluated individually in light of its
particular facts and circumstances. In addition, the propriety of a sanction must
be considered with reference to the sanctions imposed in prior similar cases.
Original action. Judgment of suspension.
Kent L. Frobish, Assistant Counsel for Discipline, for
relator.
Thomas J. Anderson, of Thomas J. Anderson, P.C., L.L.O.,
and Tim J. Kielty for respondent.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
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P er Curiam.
I. NATURE OF CASE
The issue presented in this attorney discipline proceeding
is what discipline should be imposed on James E. Connor,
respondent, for violating certain provisions of the Nebraska
Rules of Professional Conduct and his oath of office as an
attorney. These violations occurred while respondent was serv-
ing as guardian and conservator for Geraldine Dell and as
attorney for the personal representative of her estate.
The referee recommended a 90-day suspension of respond­
ent’s license to practice law without any subsequent period of
probation. Respondent does not challenge the factual findings
of the referee or the allegations in the formal charges, but
takes two exceptions to the referee’s report. Respondent takes
exception to the referee’s finding that posttraumatic stress
disorder (PTSD) was not a mitigating factor and to the recom-
mendation of a 90-day suspension of respondent’s license to
practice law.
Respondent’s violations are undisputed, and in light of the
various factors present in this case, we suspend respondent for
a period of 30 days with a subsequent 1-year period of moni-
tored probation.
II. FACTS
On September 12, 1979, respondent was admitted to practice
law in Nebraska, and he engaged in the private practice of law
in Omaha, Nebraska, at all times relevant to this case. This
disciplinary proceeding relates to formal charges originally
filed on November 1, 2013, by the Counsel for Discipline of
the Nebraska Supreme Court, relator, and amendments filed on
December 26, 2013, and April 24, 2014.
Relator alleged that certain conduct by respondent from
approximately 2005 to 2012 violated respondent’s oath of
office as an attorney and the Nebraska Rules of Professional
Conduct. Count I alleged that respondent’s acts and omis-
sions during his guardianship and conservatorship of Dell
violated Neb. Ct. R. of Prof. Cond. §§ 3-501.1 (com­petence),
3-501.3 (diligence), and 3-508.4 (misconduct). Count II
alleged that respondent’s acts and omissions during his
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legal representation of the personal representative and resid-
ual beneficiary of Dell’s estate, Thomas J. Hurst, violated
§§ 3-501.1, 3-501.3, and 3-508.4, as well as Neb. Ct. R. of
Prof. Cond. § 3-501.15 (safekeeping property).
The referee’s hearing was held on February 27 and March
12, 2014. Testimony was offered from respondent, Hurst,
Hurst’s new attorney, and respondent’s secretary, and a total of
56 exhibits were admitted into evidence. The substance of the
referee’s findings based on evidence adduced at the hearing
and respondent’s admissions of the allegations contained in the
formal charges may be summarized as follows:
1. Count I
On January 24, 2003, respondent caused to be filed in the
Douglas County Court a petition to appoint himself as tem-
porary and permanent guardian and conservator for Dell, his
cousin. The appointment came after Dell was found uncon-
scious on the floor of her home and was hospitalized. Dell
had never married and had no children. On February 28, the
court appointed respondent as guardian and conservator for
Dell. Following her hospitalization, Dell resided in several
assisted living facilities and never again resided in her home.
Respondent had authority to sell Dell’s home in Omaha.
Respondent, as guardian and conservator, was ordered to file
an inventory with the court within 90 days of his appointment.
Respondent failed to file an inventory within the 90 days. In
response, the court issued an order to show cause directing
respondent to file the inventory by July 15, 2003. Respondent
filed an inventory on July 25, which listed Dell’s home at a
value of $28,600, together with bonds, mutual funds, mort-
gages, notes, cash, and insurance totaling nearly $220,000. He
failed to timely file annual accountings of the estate assets and
annual reports of Dell’s condition.
Dell died on February 5, 2006, but respondent did not file
an application to terminate the guardianship and conservator-
ship until August 12, 2009. He did not timely file his final
accounting, and over a period of several years, respondent
repeatedly requested continuances of court hearings related to
closing the estate.
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2. Count II
Subsequent to Dell’s death, respondent located her “Last
Will and Testament,” and on September 14, 2006, he filed an
“Application for Informal Probate” in Douglas County Court.
The will nominated Dell’s friend, Margaret Fogerty, to serve
as personal representative of the estate, and on September 21,
Fogerty was so appointed by the court.
Respondent did not file an inventory for the estate until
March 8, 2007. On the inventory, respondent again listed the
estate’s assets, including the house in Omaha, at approximately
$220,000. Respondent and Fogerty opened an account for the
estate at a bank in Omaha.
On April 25, 2007, Fogerty died, but respondent did not
learn of her death for several months. After Fogerty’s death, the
successor personal representative named in Dell’s will refused
to serve. Respondent persuaded Hurst to serve as personal rep-
resentative of the estate. Hurst accepted only on the condition
that respondent assume all the duties and responsibilities of the
personal representative and that Hurst not be required to write
a “whole bunch of checks.” Hurst is a second cousin to both
Dell and respondent and is the residual beneficiary of Dell’s
estate. The court appointed Hurst as personal representative,
and Hurst retained respondent as his attorney.
After respondent failed to appear at a scheduled hearing
to close the estate on July 2, 2008, the court issued a show
cause order directing respondent to close the estate by August
26. Respondent admitted that he repeatedly asked for contin­
uances throughout 2008 and 2009 because he and Hurst were
trying to renovate Dell’s house for sale. Respondent admitted
that he did not seriously turn his attention to the house until
the spring of 2009.
By 2009, the house had become rundown and had severely
depreciated in value. Realtors who appraised the house
opined that it would take $35,000 to $45,000 to renovate and
restore the property to a potential market value of $75,000 to
$80,000. At respondent’s suggestion, Hurst agreed to under-
take renovations in preparation for sale. The project started
in the summer of 2009 and was completed in May 2011, at
which time the house sold for $72,000. Personal property was
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removed from the house and placed in storage. Storage fees
totaled $2,825.
Respondent used cash drawn from the estate checking
account to pay for much of the renovation. When he prepared
an accounting after the house was sold, he discovered an
apparent shortfall between cash expenditures and receipts that
he had obtained from the contractor.
Respondent failed to file an “Inheritance Tax Worksheet”
until August 3, 2012, and the inheritance tax was not paid
until September 6. The accrued penalty interest on the tax was
$2,057.34. Respondent reimbursed the penalty interest when
the estate was finally closed.
On October 8, 2012, Hurst dismissed respondent as his
attorney, and in a December 18 grievance letter to relator,
Hurst complained that it had taken more than 61⁄2 years to close
the estate, which had still not been closed at the time Hurst
filed the complaint.
Hurst filed a “Petition for Surcharge and Judgment” against
respondent in Douglas County Court on January 31, 2013.
Hurst retained an attorney to represent him, and the attorney
performed an accounting that showed an apparent shortfall of
$13,893.54. It was not until the hearing on February 27, 2014,
that respondent was finally able to account for nearly all the
cash expenditures he made as Hurst’s attorney.
Relator filed formal charges against respondent on November
1, 2013. A hearing before the referee was held on February 27
and March 12, 2014.
3. R eferee’s Findings
On count I, the thrust of which was a lack of competence
and diligence while serving as Dell’s guardian and conservator,
the referee found that respondent’s conduct violated his oath
of office. The referee found by clear and convincing evidence
that respondent failed to timely file the initial inventory, as
well as annual accountings and reports, causing the court to
repeatedly issue orders to show cause. He also failed to file his
final accounting and to terminate the guardianship and conser-
vatorship until 3 years after Dell’s death. The referee found
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those actions to be a failure to provide competent representa-
tion and reasonable diligence and promptness.
The referee rejected relator’s claims that respondent’s actions
in failing to sell Dell’s home amounted to incompetence,
because many of the delays were outside respondent’s control
or were a simple matter of judgment. He rejected the allegation
that respondent misled the court in requesting continuances,
noting that “[t]here is not clear and convincing evidence that
respondent gave false reasons in support of his requests for
continuance or that he misled the Court in any way.” The ref-
eree found that there was no evidence of dishonesty, but that
the length of time to close the estate exhibited a lack of com-
petence, diligence, and promptness.
On count II, regarding respondent’s handling of Dell’s estate,
the referee also determined that respondent’s actions violated
his oath of office. The referee found that some of the initial
delays resulted from Fogerty’s reclusiveness and inaccessibility
during her time as personal representative, compounded by her
subsequent death, as well as the successor personal representa-
tive’s refusal to serve and, finally, Hurst’s grudging acceptance
of the responsibility. Moreover, the contractor’s slow progress
in making renovations and the slow housing market during the
winter of 2010-11 caused further delay. Ultimately, the referee
determined that respondent’s “inability to account for all of the
cash expenditures prevented him from completing the account-
ing and closing the estate” and that clear and convincing evi-
dence showed that “respondent was, in large part, responsible
for the fact that the estate of Geraldine Dell was not closed for
more than seven years from the day she died.”
The referee determined that respondent lacked competence
and diligence in not attempting to sell or otherwise dispose
of the estate’s personal property. The personal property that
respondent caused to be stored was of little or no value and
was eventually abandoned by Hurst after storage fees in the
amount of $2,825 had been incurred.
Regarding allegations relating to the safekeeping of estate
funds, the parties did not dispute that respondent had Hurst
sign numerous blank checks in advance to avoid trips to
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Gretna, Nebraska, where Hurst resided. Moreover, the con-
tractor performing the renovations insisted on being paid in
cash. Although respondent initially inspected the invoices and
receipts from the contractor, he gradually began to simply
place the receipts in a folder at his office without inspecting
them. Many of the receipts and invoices were merely infor-
mal, handwritten notes from the contractor rather than offi-
cial receipts.
Respondent withdrew large amounts of cash from the
estate’s bank account instead of writing separate checks to the
contractor. He kept the cash in an envelope at his office and
used it to pay the contractor’s invoices. The referee found that
respondent “grossly mishandled” the funds from Dell’s estate.
Although not “client funds, they were funds for which respond­
ent’s client . . . was responsible and accountable.”
We find that the evidence is clear and convincing that
respondent failed to maintain complete and accurate records
of such account funds in violation of § 3-501.15(a). However,
we also note that respondent never comingled the estate
cash with other cash, and eventually, respondent was able to
account for the discrepancies and apparent shortcomings in the
estate’s funds.
4. Sanctions
The referee did not find any aggravating circumstances
in respondent’s actions. The referee recommended a 90-day
suspension of the respondent’s license to practice law, due in
large part to the various mitigating factors that existed in the
case. The referee noted that “the evidence is persuasive that
[respond­ent’s] intentions were honest and that he was moti-
vated by a strong feeling of obligation to a family member.”
The referee succinctly summarized the additional mitigat-
ing factors as follows: (1) Respondent did not misappropriate
estate funds; (2) the violations represented an isolated inci-
dent rather than a pattern of misconduct; (3) respondent had
an unblemished disciplinary record over the entire length of
his legal career, which spanned 35 years; (4) respondent was
fully cooperative with the referee’s office during his investi-
gation of the grievance; (5) the record contained numerous
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letters from active and retired judges and lawyers attesting
to respondent’s honesty, integrity, professionalism, and com-
passion for his clients, his pro bono work, and his overall
competence as an attorney; (6) the letters also attested to
the fact that respondent is a valued member of the bar, par-
ticularly with respect to his work with the Nebraska Lawyers
Assistance Program.
Respondent is a Vietnam War veteran who was wounded
during his service, but the referee rejected respondent’s con-
tention that PTSD contributed to his conduct in the case. The
referee noted a letter from respondent’s psychiatrist that stated:
“[I]t is possible that the type of stress from this probate could
have impacted [respondent’s] dealing with his responsibility.
But I am not aware of any major PTSD symptoms occurring
during this time, and he took no medicine to deal with PTSD.”
There was no additional evidence that PTSD caused or was
connected with respondent’s failure to provide diligent and
competent representation in this case.
III. ASSIGNMENTS OF ERROR
Respondent takes two exceptions to the report of the ref-
eree filed on April 28, 2014. Respondent takes exception to
the report’s finding that PTSD was not a mitigating factor.
Respondent also takes exception to the report’s recommenda-
tion of a 90-day suspension of his license.
In all other respects, respondent does not challenge or con-
test the truth of the findings of fact by the referee.
IV. STANDARD OF REVIEW
[1] In attorney discipline and admission cases, we review
recommendations de novo on the record, reaching a conclusion
independent of the referee’s findings.1
V. ANALYSIS
Under Neb. Ct. R. § 3-304, we may impose one or more of
the following disciplinary sanctions: “(1) Disbarment by the
Court; or (2) Suspension by the Court; or (3) Probation by the
1
State ex rel. Counsel for Dis. v. Smith, 287 Neb. 755, 844 N.W.2d 318
(2014).
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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.”
[2] To determine whether and to what extent discipline
should be imposed in a lawyer discipline proceeding, we
consider 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 respondent generally, and (6)
the respondent’s present or future fitness to continue in the
practice of law.2
[3] Each attorney discipline case must be evaluated indi-
vidually in light of its particular facts and circumstances.3 In
addition, the propriety of a sanction must be considered with
reference to the sanctions imposed in prior similar cases.4
1. Posttraumatic Stress Disorder
We first address respondent’s exception regarding the ref-
eree’s refusal to consider PTSD as a mitigating factor. We
see no indication in the record that PTSD played a role in the
admitted violations. On the contrary, the referee considered a
letter from respondent’s psychiatrist that indicated PTSD in
no way affected respondent’s actions or ability to represent
the interests of his clients or otherwise perform his duties.
Accordingly, we also decline to consider PTSD as a mitigat-
ing factor.
2. Conclusion as to Discipline
(a) Count I: Diligence
and Competence
With regard to respondent’s misconduct involving the lack
of diligence and competence, which was due in large part
2
State ex rel. Counsel for Dis. v. Barnes, 275 Neb. 914, 750 N.W.2d 668
(2008).
3
State ex rel. Counsel for Dis. v. Pivovar, 288 Neb. 186, 846 N.W.2d 655
(2014).
4
State ex rel. Counsel for Dis. v. Beltzer, 284 Neb. 28, 815 N.W.2d 862
(2012).
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to his inexperience with probate cases, we find our decision
in State ex rel. Counsel for Dis. v. Seyler5 to be relevant. In
Seyler, we determined that a 30-day suspension was appro-
priate where an attorney who normally worked in the area
of estate planning accepted representation of a plaintiff in a
personal injury case despite having very little litigation expe-
rience. The attorney in Seyler failed to respond to discovery
requests and court orders, failed to attend hearings, and failed
to keep his clients reasonably informed about developments in
the case. All the mitigating factors present in Seyler are pres-
ent in this case to a greater extent, and none of the aggravating
factors were present.
In State ex rel. Counsel for Dis. v. Barnes,6 we found a 30-day
suspension appropriate for an attorney who was retained to
help an organization obtain nonprofit corporation status, even
though he primarily practiced in the areas of domestic relations
and criminal law. The attorney’s inexperience in Barnes led to
various mistakes in the nonprofit’s application for tax-exempt
status. In Barnes, the attorney contended with personal and
family health issues during the representation that caused him
mental and financial stress. Additionally, like respondent, the
attorney in Barnes cooperated with the Counsel for Discipline,
admitted most of the allegations in the formal charges, and
acknowledged responsibility for his actions, and there was no
record of other complaints against the attorney. We find the
scope of aggravating and mitigating circumstances in Barnes
to be analogous to the present case.
Both relator and respondent cite to our decision in State ex
rel. Counsel for Dis. v. Holthaus7 because of its factual simi-
larity to these proceedings. Similar to respondent, the attorney
in Holthaus did not challenge the truth of the allegations of
his violations in the underlying probate case that led to sanc-
tions. He took upon himself all the duties and responsibilities
5
State ex rel. Counsel for Dis. v. Seyler, 283 Neb. 401, 809 N.W.2d 766
(2012).
6
Barnes, supra note 2.
7
State ex rel. Counsel for Dis. v. Holthaus, 268 Neb. 313, 686 N.W.2d 570
(2004).
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of personal representative while serving as an attorney for the
personal representative. Thereafter, he failed to timely file
pleadings and tax returns, did not communicate with the resid-
ual beneficiary of the estate, and improperly handled estate
assets. We determined that the violations warranted a 6-month
suspension of his license to practice law.
We distinguish this case from Holthaus insofar as the vari-
ous mitigating factors that exist in the present case did not
exist in Holthaus. For example, in the present case, respond­
ent’s violations were isolated incidents rather than a pattern
of misconduct. Respondent was candid in his admissions and
expressions of remorse. Respondent had a 35-year legal career
without prior misconduct. Numerous retired and active judges
and lawyers wrote letters on respondent’s behalf attesting to
respondent’s good reputation and his work with the Nebraska
Lawyers Assistance Program. No such mitigating factors were
present in Holthaus.
The referee found that respondent’s intentions were honest
and that he was motivated by a feeling of obligation to help
a family member whom he believed had no one else to assist
her in these matters. Respondent has stated numerous times
that this was the only probate case he had ever taken, and he
intends to decline to accept representation on any probate or
estate cases in the future.
(b) Count II: Safekeeping
Client Funds
Respondent cites to our decision in State of Nebraska
ex rel. NSBA v. Abrahamson8 to support his exception to
a 90-day suspension. Indeed, we find our decision in that
case to be helpful in considering respondent’s violations. In
Abrahamson, we concluded that a 90-day suspension was
appropriate for an attorney who failed to maintain complete
and accurate records of client funds coming into his posses-
sion and failed to render appropriate accounts of client funds.
During the hearing in that case, the attorney’s own accountant
8
State ex rel. NSBA v. Abrahamson, 262 Neb. 632, 634 N.W.2d 462
(2001).
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testified that “on a scale of 1 to 10, with 10 being good book-
keeping practices, [the attorney’s] accounting practices mer-
ited a grade of 1.”9
As in Abrahamson, respondent’s actions in handling the
estate funds were neither intentionally deceptive nor were they
deliberate attempts to misappropriate client funds. Instead, we
find that his actions are more adequately characterized as gross
mishandling or “negligent ineptitude.”
In Abrahamson, we also considered various mitigating fac-
tors, including the attorney’s cooperation during the discipli­
nary proceedings, the correction of his flawed accounting prac-
tices, and his continuing commitment to the legal profession
and the community. Those mitigating factors are present in this
case to an even greater extent, as noted above.
(c) Discipline
The diligent and observant handling of client funds is among
the most important safeguards against the appearance of mis-
conduct and is fundamental to maintaining the client’s confi-
dence in the legal representation and the public’s perception of
the legal profession. Although respondent’s actions in handling
the estate funds were inadvertent, our decision here is instruc-
tive in preventing similar scenarios by other members of the
bar in the future.
Based on a review of prior cases involving similar viola-
tions, and upon due consideration of the record, we find that
a 30-day suspension with a 1-year period of probation is
appropriate. After said suspension is served, respondent shall
automatically be reinstated to practice law provided that rela-
tor has not notified this court of further violations during that
time period.
Upon reinstatement, respondent shall complete 1 year of
monitored probation, which shall include but not be limited to
the following:
(1) On a monthly basis, respondent shall provide the moni-
toring attorney that has been approved by relator with a list of
all cases for which respondent is then currently responsible,
9
Id. at 636, 634 N.W.2d at 465.
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said list to include the following information for each case: (a)
the date the attorney-client relationship began, (b) the type of
case (i.e., criminal, dissolution, probate, contract, et cetera), (c)
the date of the last contact with the client, (d) the last date and
type of work completed on the case, (e) the next type of work
and date to be completed on the case, and (f) any applicable
statute of limitations and its date.
(2) Respondent shall work with the monitoring attorney to
develop and implement appropriate office procedures to ensure
that client matters are handled in a timely manner.
(3) If at any time the monitoring attorney believes respond­
ent has violated a disciplinary rule or has failed to comply
with the terms of probation, the monitoring attorney shall
report the same to relator.
VI. CONCLUSION
This court finds by clear and convincing evidence that
respondent has violated his oath of office and §§ 3-501.1,
3-501.3, and 3-501.15 of the Nebraska Rules of Professional
Conduct. Respondent is suspended from the practice of law for
30 days, effective immediately, and is subject to probation with
monitoring for 1 year immediately following the 30-day sus-
pension. At the end of the 30-day suspension, respondent shall
automatically be reinstated to the practice of law, provided that
relator has not notified this court that respondent has violated a
disciplinary rule during his suspension.
Respondent is ordered to obtain an attorney approved by
relator who shall monitor respondent’s cases and legal activity
in accordance with the requirements set forth in this opinion.
Respondent is directed to pay the costs and expenses in accord­
ance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012)
and Neb. Ct. R. §§ 3-310(P) (rev. 2014) and 3-323(B) within
60 days after an order imposing costs and expenses, if any, is
entered by this court.
Judgment of suspension.