In re Application of Collins ( 2014 )

Nebraska Advance Sheets
IN RE APPLICATION OF COLLINS 519
Cite as 288 Neb. 519
NPPD’s subordination agreements did not affect NPPD’s right
to demand the water from other users.
The majority opinion rejects the junior appropriators’ argu-
ment that permitting NPPD to demand the water from them
constituted a recovery of both money and water for loss of the
same appropriation right. It reasons that if a “junior appropria-
tor is allowed to use water because of a subordination agree-
ment, the senior appropriator is not receiving that to which it
is otherwise entitled.” I disagree. This reasoning is contrary to
the election of remedies doctrine. An appropriator can enforce
an appropriation right or a contract to compensate it for the use
of its water, but it is not entitled to a double recovery for the
same loss.11
Clearly, a senior appropriator cannot demand water from
a junior appropriator which has paid compensation for the
water’s use.12 But application of the election of remedies doc-
trine may require other considerations in the context of water
law. Because the director did not decide this issue, I would
remand the cause for further consideration of the evidence
to determine the effect of the subordination agreements on
NPPD’s right to demand water from the junior appropriators.
11
See Genetti v. Caterpillar, Inc., 261 Neb. 98, 621 N.W.2d 529 (2001).
12
See Clear Springs Foods, Inc. v. Spackman, 150 Idaho 790, 252 P.3d 71
(2011).
In reApplication of Loretta D. Collins for
Admission to the Nebraska State Bar.
___ N.W.2d ___
Filed July 11, 2014. No. S-13-1020.
1. Rules of the Supreme Court: Attorneys at Law: Appeal and Error. Under
Neb. Ct. R. § 3-126 (rev. 2013), the Nebraska Supreme Court considers the
appeal of an applicant from a final ruling of the Nebraska State Bar Commission
de novo on the record made at the hearing before the commission.
2. Rules of the Supreme Court: Attorneys at Law. The Nebraska Supreme Court
is vested with the sole power to admit persons to the practice of law in this state
and to fix qualifications for admission to the Nebraska bar.
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3. ____: ____. The Nebraska Supreme Court has delegated administrative responsi-
bility for bar admissions solely to the Nebraska State Bar Commission.
4. Attorneys at Law: Proof. The applicant for admission to the Nebraska State Bar
bears the burden of proving good character by producing documentation, reports,
and witnesses in support of the application.
5. Attorneys at Law. Where the record of an applicant for admission to the
Nebraska State Bar demonstrates a significant lack of honesty, trustworthiness,
diligence, or reliability, a basis may exist for denying his or her application.
6. Attorneys at Law: Disciplinary Proceedings. Standing alone, a disciplinary
reprimand is not a determination that a lawyer lacks the requisite character and
fitness to continue practicing law.
7. Courts: Jurisdiction: Attorneys at Law. While the Nebraska Supreme Court is
not bound by character and fitness determinations of other jurisdictions, it may
consider them in assessing the qualifications of an applicant for admission to the
Nebraska State Bar.
Original action. Application granted.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for applicant.
Loretta D. Collins, pro se.
Jon Bruning, Attorney General, Stephanie Caldwell, and
Christopher J. Preston, Senior Certified Law Student, for
Nebraska State Bar Association.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
P er Curiam.
Our rules permit a lawyer to be admitted to practice in
Nebraska without taking the bar examination if the lawyer
has attained educational qualifications at least equal to those
required for applicants for admission by examination, is
licensed and in good standing in the practice of law in another
state, and has been actively and substantially engaged in the
practice of law in another jurisdiction for 5 of the 7 years pre-
ceding the application.1 Persons seeking admission in this way
are classified as “Class 1-B applicants.”2
1
Neb. Ct. R. § 3-119(B) (rev. 2013).
2
Id.
Nebraska Advance Sheets
IN RE APPLICATION OF COLLINS 521
Cite as 288 Neb. 519
Loretta Collins is a lawyer admitted to practice and in good
standing in Alabama and Colorado. She moved for admis-
sion in Nebraska as a Class 1-B applicant, but the Nebraska
State Bar Commission (Commission) rejected her application,
finding she lacked the requisite character and fitness. Collins
appeals from the Commission’s decision.
I. FACTS
Collins was honorably discharged from the U.S. Navy after
approximately 8 years of active duty. She has been licensed
to practice law in Alabama since September 2000 and in
Colorado since August 2008. She is in good standing in both
states. She applied for admission to the Nebraska bar in 2013,
and after reviewing her application and supporting documents,
the Commission denied admission due to a lack of accept-
able character and fitness. Collins appealed that decision, and
an evidentiary hearing was held before the Commission. The
Commission then affirmed its decision, and Collins filed this
timely appeal.
1. Disciplinary R ecord
Collins has no disciplinary record in Colorado. However,
between September 29, 2000, and March 22, 2013, five disci-
plinary complaints were filed against her in Alabama.
(a) Dismissed Complaints
Three of the complaints were investigated by the Alabama
Disciplinary Commission (Alabama Commission) and
“screened out” with no action taken. These complaints were
filed on February 7, 2011; September 21, 2009; and January
16, 2004.
The February 2011 complaint arose when the Alabama
Commission received notice from Collins’ bank that a check
had been written against her trust account and that the account
lacked sufficient funds to cover the check. When contacted
by the Alabama Commission, Collins discovered there had
been an accounting error and remedied the account. The
Alabama Commission took no further action on the complaint.
Collins did not disclose this complaint and investigation on
her application to be admitted to the Nebraska bar. When
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questioned by the Commission, she stated she had forgotten
about the complaint.
The September 2009 complaint was filed by a former client
and related to the estate of the client’s mother. It was inves-
tigated and then “screened out” by the Alabama Commission
without further action. Collins did not disclose this complaint
and investigation on her application to be admitted to the
Nebraska bar. When questioned by the Commission, she stated
she had forgotten about the complaint.
The January 2004 complaint involved a client’s dissatisfac-
tion with services provided by Collins. It was investigated by
the Alabama Commission, and no further action was taken.
Collins disclosed this complaint and investigation on her appli-
cation to be admitted to the Nebraska bar.
(b) Complaints Resulting
in Discipline
(i) Public Reprimand
The remaining two Alabama complaints resulted in disci-
plinary action against Collins. She disclosed both actions on
her application to be admitted to the Nebraska bar.
The first resulted in a public reprimand and was based on
facts that occurred in 2003-04. Sometime around July 2003,
Collins agreed to represent Maria Oravec, an elderly woman,
in an estate matter. Collins agreed to accept a $6,000 retainer
and to bill at $150 per hour thereafter. Based on Collins’
hourly bills, Oravec paid Collins the $6,000 plus an additional
$3,750. In February 2004, Oravec terminated Collins’ serv­
ices. Almost immediately thereafter, Collins liquidated one
of Oravec’s investment accounts and deducted a $50,000 fee.
Oravec and her new counsel discovered the withdrawal and
sued for malpractice.
Collins maintained that in January or February 2004, the
parties had renegotiated her fee to a flat $50,000, which would
be due once the estate was closed. It is undisputed that her
new agreement was not in writing. Collins maintained that
when Oravec terminated her services, Collins contacted the
Alabama Commission, explained the situation, and was advised
to deduct the $50,000 fee from the estate and then withdraw.
Nebraska Advance Sheets
IN RE APPLICATION OF COLLINS 523
Cite as 288 Neb. 519
Oravec denied agreeing to the $50,000 payment, and whether
the Alabama Commission in fact so advised Collins is unclear
from the record.
Oravec’s new attorney testified before the Alabama
Commission that Collins had performed very little work on the
estate, that it was not a difficult estate, and that he would have
charged Oravec approximately $2,000 total for the necessary
legal work. The Alabama Commission found the fees Collins
charged Oravec were clearly excessive and publicly repri-
manded her. In its report and order entered after the discipli­
nary hearing, the Alabama Commission found that Collins
acted with a “[d]ishonest or selfish motive” and that she
refused to “acknowledge [the] wrongful nature of [her] con-
duct.” Oravec also filed a separate action against Collins for
malpractice. The malpractice action was settled when Collins
agreed to pay $25,000 to Oravec.
(ii) Private Reprimand
On January 24, 2008, Collins’ client entered into a lien
assignment with a chiropractor related to treatment received
by the client. The lien was for approximately $9,000. Collins
settled her client’s case for $3,500 and then attempted to get
the chiropractor to agree to accept a lesser amount in satisfac-
tion of the lien, but the chiropractor refused. Nevertheless,
Collins paid the full $3,500 to the client. The chiropractor filed
a complaint with the Alabama Commission, and Collins admit-
ted she failed to honor the lien and eventually paid the chiro-
practor $2,500 from her own pocket. On February 14, 2013,
the Alabama Commission accepted her conditional guilty plea
and issued a private reprimand.
2. Credit and Criminal R ecord
Collins listed three “DEBTS: Defaults; Past Due;
Revocations” on her Nebraska bar application. But when the
Commission reviewed her credit history, it found 14 accounts
with negative history, including six delinquent filings, seven
collection actions, and one “charge off.” Collins was asked by
letter to “explain the omission of this information and explain
the circumstances surrounding each of the negative credit
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history” occurrences. She responded by letter with documen-
tation explaining each of the accounts and that they either
had been discharged or were current, but did not explain why
the information was omitted from her application. During her
hearing before the Commission, she stated that her failure
to address the omissions “must have been an oversight” and
explained that she filled out her application by utilizing a
credit report and that the additional negative accounts were
not on that report. Collins’ credit history demonstrates she has
had a credit card or charge account revoked and that she has
defaulted on a student loan.
Her criminal history shows she was fined for not paying
an occupational license in 2005 and was acquitted of criminal
harassment charges brought against her by a former client in
2006. She did not disclose the fine to the Commission. When
questioned about it, she stated she was unaware the fine quali-
fied as a crime.
3. Bar Commission Findings
After reviewing Collins’ application, the Commission had
Collins appear before it for an interview. On September 10,
2013, the Commission voted to deny her application based on
a lack of acceptable character and fitness. Collins appealed,
and a hearing on her appeal was held on October 18. The
Commission affirmed its decision to deny admission, and
Collins filed this timely appeal.
II. ASSIGNMENT OF ERROR
Collins assigns, restated and summarized, that the
Commission erred when it determined she did not have the
present requisite character and fitness for admission to the
Nebraska Bar.
III. STANDARD OF REVIEW
[1] Under Neb. Ct. R. § 3-126 (rev. 2013), the Nebraska
Supreme Court considers the appeal of an applicant from a
final ruling of the Commission de novo on the record made at
the hearing before the Commission.3
3
See In re Application of Hartmann, 276 Neb. 775, 757 N.W.2d 355 (2008).
Nebraska Advance Sheets
IN RE APPLICATION OF COLLINS 525
Cite as 288 Neb. 519
IV. ANALYSIS
[2,3] This court is vested with the sole power to admit per-
sons to the practice of law in this state and to fix qualifications
for admission to the Nebraska bar.4 Neb. Rev. Stat. § 7-102(1)
(Reissue 2012) provides: “No person shall be admitted . . .
unless it is shown to the satisfaction of the Supreme Court that
such person is of good moral character.” This court has del-
egated administrative responsibility for bar admissions solely
to the Commission.5
The standards for conduct and fitness against which all
applicants are measured are set out in Neb. Ct. R. § 3-112 (rev.
2013). As applicable to this case, § 3-112 provides:
In addition to the admission requirements other-
wise established by these rules, the essential eligibility
requirements for admission to the practice of law in
Nebraska are:
(A) the ability to conduct oneself with a high degree
of honesty, integrity, and trustworthiness in all pro-
fessional relationships and with respect to all legal
obligations;
....
(C) the ability to conduct oneself with respect for and
in accordance with the law and the Nebraska Rules of
Professional Conduct;
....
(F) the ability to exercise good judgment in conducting
one’s professional business;
....
(H) the ability to use honesty and good judgment in
financial dealings on behalf of oneself, clients, and oth-
ers; [and]
....
(J) the ability to conduct oneself professionally and
in a manner that engenders respect for the law and the
profession.
4
Id.
5
Id.
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Neb. Ct. R. § 3-116(A) (rev. 2013) further clarifies the charac-
ter and fitness standards and states in part:
The purpose of character and fitness screening before
admission to the practice of law in Nebraska is to ensure
the protection of the public and to safeguard the justice
system. The attorney licensing practice is incomplete if
only testing for minimal competence is undertaken. The
public is adequately protected only by a system that eval-
uates character and fitness as those elements relate to the
practice of law. The public interest requires that the public
be secure in its expectation that those who are admitted to
the practice of law are worthy of the trust and confidence
clients may reasonably place in their attorneys.
[4,5] The applicant for admission to the Nebraska State
Bar bears the burden of proving good character by producing
documentation, reports, and witnesses in support of the appli-
cation.6 Where the record of an applicant for admission to the
bar demonstrates a significant lack of honesty, trustworthiness,
diligence, or reliability, a basis may exist for denying his or
her application.7 Our character and fitness standards list the rel-
evant conduct that may be treated as cause for further inquiry
before the Commission decides whether an applicant possesses
the character and fitness to practice law.8 As relevant here, that
conduct includes:
(1) misconduct in employment;
(2) acts involving dishonesty, fraud, deceit, or
misrepresentation;
....
(4) neglect of financial responsibilities;
(5) neglect of professional obligations;
....
(10) disciplinary action by an attorney disciplinary
agency or other professional disciplinary agency of any
jurisdiction . . . ; or
6
Id.
7
Id.
8
§ 3-116(F).
Nebraska Advance Sheets
IN RE APPLICATION OF COLLINS 527
Cite as 288 Neb. 519
(11) citation, arrest, charge, or conviction for any crim-
inal offense.9
When there is evidence that an applicant has engaged in any
such conduct, the Commission decides whether present char-
acter and fitness to practice law in Nebraska exists.10 In doing
so, it weighs the significance of the prior conduct against the
following factors:
(1) the applicant’s age at the time of the conduct;
(2) the recency of the conduct;
(3) the reliability of the information concerning the
conduct;
(4) the factors underlying the conduct;
(5) the seriousness of the conduct;
(6) the cumulative effect of the conduct or information;
(7) the evidence of rehabilitation;
(8) the applicant’s positive social contributions since
the conduct;
(9) the applicant’s candor in the admissions process;
and
(10) the materiality of any omissions or representations.11
Our task in this case is to review de novo the Commission’s
finding that Collins lacks the requisite character and fitness
to be admitted to the Nebraska bar. Collins asserts that she is
a Navy veteran and that she is licensed in good standing in
both Alabama and Colorado. She further asserts that all of the
conduct underlying her disciplinary actions occurred at least 2
years ago and that the omissions regarding her prior discipli­
nary record and her credit history were completely inadvertent
and largely immaterial to the issue of her character and fitness.
She contends that she simply forgot about the prior discipli­
nary complaints. She also relies on letters of recommendation
from former clients and character references that were submit-
ted with her application.
9
Id.
10
§ 3-116(G).
11
Id.
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The Commission, on the other hand, argues the record
does not demonstrate present character and fitness to prac-
tice law. It relies particularly on Collins’ failure to disclose
the two prior disciplinary complaints and the 11 additional
instances of negative credit history. It also argues that the fac-
tual circumstances underlying Collins’ public reprimand for
taking the $50,000 excessive fee and her private reprimand
for refusing to honor the lien indicate she is of questionable
professional character. The Commission further argues that
her significant financial issues and the evidence of rather sub-
stantial debt negatively reflects on her character and fitness to
practice law.
[6,7] Standing alone, a disciplinary reprimand is not a deter-
mination that a lawyer lacks the requisite character and fitness
to continue practicing law. It is the least severe of the sanc-
tions which may be assessed for an attorney’s misconduct.12
And, unlike suspension and disbarment, a reprimand does
not curtail or extinguish a lawyer’s right to practice. Multiple
reprimands are, of course, cause for greater concern. But the
fact that Collins remains licensed to practice in Alabama, the
jurisdiction which issued the reprimands, is indicative of that
State’s assessment of her character and fitness to practice law.
Likewise, her admission and good standing in Colorado indi-
cate that the licensing authority of that State has deemed her
character and fitness to be sufficient. While we are not bound
by character and fitness determinations of other jurisdictions,
we may consider them in assessing the qualifications of an
applicant for admission to the Nebraska State Bar. Based upon
our review of the record with respect to the Alabama repri-
mands received by Collins, we determine that they are insuf-
ficient to establish that Collins lacks the requisite character and
fitness to practice law in Nebraska.
The Commission primarily argues that Collins’ lack of
candor on her application about her disciplinary history in
Alabama and her financial and criminal history should pre-
clude her admission in Nebraska. In this regard, we have
held that an applicant who recklessly fills out an application,
12
See Neb. Ct. R. § 3-304.
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IN RE APPLICATION OF COLLINS 529
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as the consequence of which the application contains false
answers, is just as culpable of lacking in candor in the appli-
cation process as is the applicant who intends to deceive the
Commission.13 Collins acknowledges that there were mistakes
on her application, but contends they were honest mistakes.
We note that she did disclose four disciplinary complaints
in Alabama, but that two of these were duplicative. Two
of the five complaints in Alabama were not disclosed. The
undisclosed complaints did not result in discipline. Collins
explained that she relied on a credit report in disclosing
her negative credit history and that she did not disclose her
fine for failure to pay an occupation tax because she did not
understand that it was a criminal infraction. While we do not
condone these inaccuracies in Collins’ application, we are
willing to accept Collins’ explanations and conclude that they
are not indicative of reckless behavior which would preclude
her admission in Nebraska.
In sum, we determine on the basis of our de novo review that
Collins possesses sufficient character and fitness for admission
to the Nebraska bar. But we note that Collins’ disciplinary
record in Alabama will become a part of her disciplinary record
in Nebraska, which may be considered by this court in any
future disciplinary proceeding.
V. CONCLUSION
For the reasons discussed, we grant Collins’ Class 1-B appli-
cation for admission to the Nebraska bar. She may be admitted
to practice in Nebraska upon payment of the mandatory mem-
bership assessment and administration of the oath.14
Application granted.
13
In re Appeal of Lane, 249 Neb. 499, 544 N.W.2d 367 (1996).
14
See Neb. Ct. R. §§ 3-128 (rev. 2013) and 3-803(D) (rev. 2014).