State ex rel. Counsel for Dis. v. Chvala , 304 Neb. 511 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
STATE EX REL. COUNSEL FOR DIS. v. CHVALA
Cite as 304 Neb. 511
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator, v.
Janet L. Krotter Chvala, respondent.
___ N.W.2d ___
Filed November 22, 2019. No. S-17-773.
1. Disciplinary Proceedings: Appeal and Error. Attorney discipline cases
are original proceedings before the Nebraska Supreme Court. As such,
the court reviews a referee’s recommendations de novo on the record,
reaching a conclusion independent of the referee’s findings.
2. Disciplinary Proceedings: Proof. Violations of disciplinary rules must
be established by clear and convincing evidence.
3. Disciplinary Proceedings. The basic issues in a disciplinary proceed-
ing against an attorney are whether discipline should be imposed and,
if so, the appropriate discipline evaluated under the particular facts and
circumstances of the case.
4. Disciplinary Proceedings: Appeal and Error. When a party takes
exception to the referee’s report in a disciplinary proceeding, the
Nebraska Supreme Court conducts a trial de novo on the record, in
which the court reaches a conclusion independent of the findings of
the referee; provided, however, that where the credible evidence is in
conflict on a material issue of fact, the court considers and may give
weight to the fact that the referee heard and observed the witnesses and
accepted one version of the facts rather than another.
5. ____: ____. In a disciplinary proceeding, when a referee makes an
express determination about the relative credibility of witnesses, the
Nebraska Supreme Court gives weight to that determination in its de
novo review, but it is not bound by it.
6. Attorney and Client. A lawyer is ultimately responsible for the conduct
of his or her employees and associates in the course of the professional
representation of the client.
7. ____. An attorney-client relationship with respect to a particular matter
may be implied from the conduct of the parties.
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STATE EX REL. COUNSEL FOR DIS. v. CHVALA
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8. Attorney and Client: Proof. Generally speaking, an attorney-client
relationship is created when (1) a person seeks advice or assistance
from an attorney, (2) the advice or assistance sought pertains to mat-
ters within the attorney’s professional competence, and (3) the attorney
expressly or impliedly agrees to give or actually gives the desired advice
or assistance. In appropriate cases the third element of an attorney-client
relationship may be established by proof of detrimental reliance, when
the person seeking legal services reasonably relies on the attorney to
provide them, and the attorney, aware of such reliance, does nothing to
negate it.
9. Disciplinary Proceedings: Attorney and Client. Generally speaking,
any commercial activity engaged in for a profit will constitute a business
transaction for purposes of the disciplinary provisions that prohibit an
attorney from entering into a business transaction with a client.
10. Disciplinary Proceedings: Attorney and Client: Real Estate: Words
and Phrases. For purposes of the disciplinary provisions that prohibit
an attorney from entering into a business transaction with a client, “busi-
ness transaction” is a broad term, and it plainly includes an agreement to
purchase real property and an agreement to lease real property.
11. Disciplinary Proceedings: Attorney and Client: Words and Phrases.
In the context of the disciplinary provisions governing business transac-
tions with clients, a client is defined as one over whom the attorney has
influence arising from a previous or current attorney-client relationship.
Thus, a “client” in this context means not only one with whom the attor-
ney has an existing attorney-client relationship, but also those who have
relied on the attorney on an occasional and on-going basis.
12. Disciplinary Proceedings: Attorney and Client: Conflict of Interest:
Proof. To establish a violation of Canon 5, DR 5-104(A), of the Code of
Professional Responsibility, it is necessary to show that (1) the attorney
and the client had differing interests in the transaction, (2) the client
expected the lawyer to exercise his or her professional judgment for the
protection of the client, and (3) the client consented to the transaction
without full disclosure.
13. Conflict of Interest: Words and Phrases. Differing interests are inter-
ests that are conflicting, inconsistent, diverse, or otherwise discordant.
14. Disciplinary Proceedings: Conflict of Interest: Words and Phrases.
In the attorney discipline context, the term “differing interests” has
been broadly defined to include any interest adversely affecting either
the lawyer’s judgment on behalf of a client or the lawyer’s loyalty to
a client.
15. Conflict of Interest. It is fundamental that the interests of a purchaser
in a transaction are directly contradictory to the interests of the seller in
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STATE EX REL. COUNSEL FOR DIS. v. CHVALA
Cite as 304 Neb. 511
the transaction. Similarly, the competing interests of lessor and lessee
necessarily present differing interests.
16. Attorney and Client. The nature of the transaction itself can show that
the client expected the lawyer to exercise professional judgment for his
or her protection. So, too, can the prior relationship of the attorney and
the client.
17. ____. As a general matter, it is natural and proper for a client with a
longstanding business relationship with a lawyer to feel that the law-
yer is to be trusted, will not act unfairly, and will protect him or her
against danger.
18. Disciplinary Proceedings: Conflict of Interest. For purposes of Canon
5, DR 5-104(A), of the Code of Professional Responsibility, a full
disclosure requires both that the client is advised there is a conflict of
interest and that the client is informed of the possible areas this conflict
of interest may affect.
19. ____: ____. A key part of a full disclosure under Canon 5, DR 5-104(A),
of the Code of Professional Responsibility, is explaining to the client
any effect the conflict may have on the exercise of the attorney’s profes-
sional judgment. In other words, full disclosure means explaining the
nature of the conflict presented by the attorney’s role in the business
transaction, and also explaining to the client why he or she would ben-
efit from independent counsel.
20. ____: ____. When a full disclosure is required under Canon 5,
DR 5-104(A), of the Code of Professional Responsibility, it must
include a clear explanation of the differing interests between the attor-
ney and the client, a detailed explanation of the risks and disadvantages
to the client as a result of those differing interests, and an explanation of
the advantages of seeking independent legal advice.
21. ____: ____. The full disclosure required by Canon 5, DR 5-104(A), of
the Code of Professional Responsibility, is not satisfied by a mere dis-
claimer of an attorney-client relationship.
22. Disciplinary Proceedings: Attorney and Client: Conflict of Interest.
Canon 5, DR 5-104(A), of the Code of Professional Responsibility, is
designed to address the concern that an attorney’s legal skill and train-
ing, together with the relationship of trust and confidence between the
lawyer and client, create the possibility of overreaching when the lawyer
participates in a business transaction with a client. This concern exists
whether or not the attorney actually provides legal advice or services to
the client in the business transaction.
23. ____: ____: ____. To be effective, the full disclosure required by Canon
5, DR 5-104(A), of the Code of Professional Responsibility, must be
made before the client consents to the business transaction.
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STATE EX REL. COUNSEL FOR DIS. v. CHVALA
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24. ____: ____: ____. Under Canon 5, DR 5-105, of the Code of Professional
Responsibility, a lawyer may represent several clients whose interests
are not actually or potentially differing, but should nevertheless explain
any circumstances that might cause a client to question the lawyer’s
undivided loyalty.
25. Attorney and Client: Conflict of Interest. If a lawyer is asked to
undertake or continue representation of multiple clients having poten-
tially differing interests, the lawyer must weigh carefully the possibility
that his or her judgment may be impaired or his or her loyalty divided if
he or she accepts or continues the employment.
26. Disciplinary Proceedings: Attorney and Client: Conflict of Interest.
Under Canon 5, DR 5-105(C), of the Code of Professional Responsibility,
a lawyer may represent multiple clients with differing interests if (1) it
is obvious the lawyer can adequately represent the interest of each and
(2) if each client consents to the representation after full disclosure of
the possible effect of such representation on the exercise of his or her
independent professional judgment on behalf of each.
27. Attorney and Client: Conflict of Interest. Even in those instances
where a lawyer is justified in representing two or more clients hav-
ing differing interests, it is nevertheless essential that each client be
given the opportunity to evaluate his or her need for representation
free from any potential conflict and to obtain other counsel if he or she
so desires.
28. ____: ____. Before a lawyer may represent multiple clients, the law-
yer should explain fully to each client the implications of the common
representation and should accept or continue employment only if the
client consents. And if there are present other circumstances that might
cause any of the multiple clients to question the undivided loyalty
of the lawyer, he or she should also advise all of the clients of those
circumstances.
29. Disciplinary Proceedings: Attorney and Client: Conflict of Interest.
A full disclosure under Canon 5, DR 5-105, of the Code of Professional
Responsibility, requires the attorney to not only inform the client of the
attorney’s relationship with other clients, but also to explain the pitfalls
that may arise in the course of the transaction that would make it desir-
able for the client to have independent counsel.
30. ____: ____: ____. For purposes of Neb. Ct. R. of Prof. Cond. § 3-501.7
(rev. 2019), informed consent requires that each affected client be aware
of the relevant circumstances and of the material and reasonably fore-
seeable ways that the conflict could have adverse effects on the interests
of that client. The information required depends on the nature of the
conflict and the nature of the risks involved. When representation of
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STATE EX REL. COUNSEL FOR DIS. v. CHVALA
Cite as 304 Neb. 511
multiple clients in a single matter is undertaken, the information must
include the implications of the common representation, including pos-
sible effects on loyalty, confidentiality, and the attorney-client privilege
and the advantages and risks involved.
31. Attorneys at Law. One of the essential eligibility requirements for
admission to the practice of law in Nebraska is the ability to conduct
oneself with a high degree of honesty, integrity, and trustworthiness in
all professional relationships and with respect to all legal obligations.
32. Disciplinary Proceedings: Attorney and Client. Attorneys who engage
in dishonest or deceitful conduct in their communications with clients
violate Neb. Ct. R. of Prof. Cond. § 3-508.4(c) (rev. 2016).
33. Disciplinary Proceedings. With respect to the imposition of attorney
discipline, each attorney discipline case must be evaluated in light of its
particular facts and circumstances.
34. ____. 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.
35. ____. In attorney discipline matters, the propriety of a sanction must
be considered with reference to the sanctions imposed in prior similar
cases.
36. ____. To determine whether and to what extent discipline should be
imposed in an attorney 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.
37. ____. Cumulative acts of attorney misconduct are distinguishable from
isolated incidents, therefore justifying more serious sanctions.
38. Attorney and Client. Violations of client trust and loyalty, particularly
when they result in personal financial gain to the attorney, harm the rep-
utation of the entire legal profession by undermining public confidence
and trust in attorneys, in the courts, and in the legal system generally.
39. Disciplinary Proceedings: Attorney and Client. There is a need to
preserve the public trust and confidence in members of the bar. Among
the major considerations in determining whether a lawyer should be
disciplined is maintenance of the highest trust and confidence essential
to the attorney-client relationship. As a profession, the bar continuously
strives to build and safeguard such trust and confidence.
40. Disciplinary Proceedings. The goal of attorney discipline proceedings
is not as much punishment as a determination of whether it is in the
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STATE EX REL. COUNSEL FOR DIS. v. CHVALA
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public interest to allow an attorney to keep practicing law. Providing for
the protection of the public requires the imposition of an adequate sanc-
tion to maintain public confidence in the bar.
41. ____. It is a very serious matter when attorney misconduct brings doubt
into the minds of many as to the competence of the legal profession to
represent a client’s best interest.
42. ____. The Nebraska Supreme Court does not look kindly upon acts
which call into question an attorney’s honesty and trustworthiness. The
essential eligibility requirements for admission to the practice of law in
Nebraska include the ability to conduct oneself with a high degree of
honesty, integrity, and trustworthiness in all professional relationships
and with respect to all legal obligations. With or without misappropria-
tion, acts of dishonesty can result in disbarment.
Original action. Judgment of disbarment.
Kent L. Frobish, Assistant Counsel for Discipline, for relator.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
respondent.
Heavican, C.J., Miller-Lerman, Stacy, Funke, Papik, and
Freudenberg, JJ.
Per Curiam.
This is an original action brought by the Counsel for
Discipline of the Nebraska Supreme Court against attorney
Janet L. Krotter Chvala, alleging she violated several discipli­
nary provisions and her oath as an attorney by, among other
things, entering into business transactions with clients without
providing the full disclosure mandated by the disciplinary
rules and engaging in conduct involving deceit and dishon-
esty. Chvala denied the allegations. A referee was appointed,
and an evidentiary hearing was held. The referee found clear
and convincing evidence of multiple disciplinary violations and
recommended that Chvala be disbarred. Chvala filed an excep-
tion to the referee’s report, challenging both the findings and
the recommended sanction.
On de novo review, we find clear and convincing evidence
that Chvala violated several disciplinary provisions and her
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STATE EX REL. COUNSEL FOR DIS. v. CHVALA
Cite as 304 Neb. 511
attorney oath. And given the seriousness of the violations, we
agree with the referee that the appropriate sanction for Chvala’s
misconduct is disbarment.
I. BACKGROUND
Chvala has been licensed to practice law in Nebraska since
1984. She is an experienced, well-respected lawyer with a
busy law practice focused primarily on business formation,
real estate, and probate in the area of O’Neill and Atkinson,
Nebraska. Chvala has not been the subject of any prior disci-
plinary action.
II. FACTS
Brothers Wayne Kaup and Kurt Kaup operate several
­farming-related businesses in the O’Neill and Atkinson area. In
the 7 years before the 2003 real estate transaction at the heart
of this disciplinary action, Chvala regularly provided legal
serv­ices to Wayne and Kurt and represented them in a variety
of matters, including the purchase of farmland, the handling
of crop liens, and the organization of business entities for hay
operations, livestock operations, and hauling grain. Chvala also
performed a variety of legal services for Wayne and Kurt’s
mother, Diane Kaup, during this time period.
1. Morrison Land
On January 2, 2003, Wayne and Kurt signed a contract
to purchase a section of prime farmland in Holt County,
Nebraska, known as the Morrison Land. The purchase price
was $996,880.50. They put 5 percent down and sought private
financing for the remainder of the purchase price.
Their mother, Diane, agreed to finance a quarter section
of the land, and their aunt, Rita Olberding (Rita), agreed to
finance another quarter section. Wayne and Kurt contacted
Chvala at her law office and asked if she would be interested in
hearing about an investment proposal regarding the Morrison
Land. She said she was, and on January 12, 2003, Wayne and
Kurt met with Chvala and her husband, Gary Chvala (Gary), at
Chvala and Gary’s home.
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STATE EX REL. COUNSEL FOR DIS. v. CHVALA
Cite as 304 Neb. 511
(a) January 12, 2003, Meeting
It is undisputed that during the January 12, 2003, meeting at
Chvala and Gary’s home, Wayne and Kurt discussed their need
to finance the Morrison Land purchase. But Chvala and the
Kaup brothers disagree as to what specifically was said during
the meeting.
According to Chvala, the meeting was primarily between
Gary and the Kaup brothers. Chvala testified she merely intro-
duced Wayne and Kurt to Gary, and then explained: “He’s buy-
ing the property if he decides to do this. And I have done work
for you in the past. And I cannot represent you in any capacity
because God willing, he’s always going to be my husband.”
According to Chvala, she was not otherwise involved in the
January 12, 2003, meeting.
Wayne and Kurt testified that Chvala actively participated in
the meeting and that she was the one with whom they negoti-
ated. They denied that Chvala made any statement about it
being only Gary’s deal. Wayne testified that Chvala did most
of the talking during the meeting and that Gary remained
mostly silent. Wayne explained that although he and Kurt had
approached Chvala about financing a quarter section, Chvala
told them she was interested in two quarter sections (which
total a half section) and did not want to loan them money.
Instead, Chvala offered to purchase a half section of the
Morrison Land and then lease it back to Wayne and Kurt with
an option to purchase the land at the end of the lease term.
The parties discussed several ways to structure the arrange-
ment. One proposal, made by the Kaup brothers, was that
Chvala and Gary would receive a guaranteed 5-percent rate of
return and the Kaup brothers would have an option to purchase
for the fair market value of the land at the end of the lease
term. However, they ultimately agreed Chvala and Gary would
purchase the half section of the Morrison Land and lease it
back to Wayne and Kurt pursuant to a 10-year triple-net lease
that would guarantee a 7-percent rate of return to Chvala and
Gary, with an option for the Kaup brothers to purchase the land
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STATE EX REL. COUNSEL FOR DIS. v. CHVALA
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at the end of the lease term for the original purchase price.
Both Wayne and Kurt testified that near the end of the meet-
ing, Chvala told them the half section of land would be titled
in Gary’s name for estate planning purposes.
A few days after the January 12, 2003, meeting, and in reli-
ance on the agreement reached with Chvala and Gary, Wayne
and Kurt assigned their rights under the purchase agreement
to Gary so he could purchase the half section of the Morrison
Land. Wayne and Kurt executed similar assignments in favor
of Diane and Rita for the respective quarter sections of the
Morrison Land they planned to purchase.
Gary was a high school teacher and coach, and a respected
member of the community. Prior to January 2003, he had not
been involved in purchasing or leasing farmland. Gary died
unexpectedly before the evidentiary hearing in this disciplinary
case. But his deposition was taken in a related civil case filed
by Wayne and Kurt against Chvala and Gary, and a transcript
of that deposition was received as an exhibit during the dis-
ciplinary hearing. In his deposition, Gary testified he did not
remember how the Morrison Land deal was first presented
to him, but he consistently described it as “my land” and
insisted that “[i]t has nothing to do with [Chvala], she’s got her
own situation.”
Gary testified he and Chvala decided the Morrison Land
would be titled in his name, but admitted that their “joint
funds” were used to purchase the land and that Chvala was
obligated on a promissory note for a substantial portion of the
purchase price. Gary’s deposition testimony also showed he
was unfamiliar with virtually all the details of the deal. When
asked whose idea it was to lease the property back to Wayne
and Kurt, Gary said, “Well, I’m not really sure.” Gary did not
understand and could not explain the triple-net lease provi-
sions, and when asked why he chose such a lease arrangement
for the deal, Gary testified he got the idea from forms he had
seen around Chvala’s law office. Gary was not able to explain
how he planned to make a profit on the investment as it was
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STATE EX REL. COUNSEL FOR DIS. v. CHVALA
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structured. When pressed, he testified, “Well, my intent was
that eventually I thought with a lease option that with the price
of land going the way it was that eventually that I was going to
make a profit on the whole situation. I wasn’t going to run the
thing just to break even.”
The referee found, based on Gary’s testimony, that it was
hard to believe that Gary, who had no experience in buy-
ing and leasing farm ground, initiated the idea of not
loaning the Kaups the money, but rather buying the land
and then leasing it to the Kaups on a 10-year triple net
lease with an Option to Purchase at the end of 10 years.
The referee further found that Wayne and Kurt’s testimony
about the discussions and agreements reached during the
January 12, 2003, meeting was credible, and he expressly
found that Chvala’s testimony was not credible.
(b) Closing on Morrison Land
Closing on the Morrison Land occurred in February 2003.
Gary became the titled owner of a half section of the Morrison
Land, which he purchased for $497,637. To finance the pur-
chase, Gary used approximately $240,000 from Chvala’s per-
sonal savings account, and he and Chvala jointly borrowed the
balance of the purchase price. Both Gary and Chvala signed
the promissory notes and loan agreements.
Rita became the titled owner of a quarter section of the
Morrison Land, and Diane took title to the other quarter section
through Sandyland, LLC, an entity formed by Chvala expressly
for that purpose.
Chvala prepared the deeds, transfer statements, and bills of
sale for Gary, Sandyland, and Rita.
(c) Termination of Prior Leases
After the closings, Chvala drafted lease termination notices
on behalf of all of the new owners of the Morrison Land—
Gary, Sandyland, and Rita. In the notices, Chvala represented
herself as the attorney for each Morrison Land owner. In
a subsequent letter dated February 28, 2003, and addressed
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STATE EX REL. COUNSEL FOR DIS. v. CHVALA
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collectively to “Diane, Rita, Wayne and Kurt,” Chvala pro-
vided copies of the lease termination notices she had sent to the
former tenants, explaining:
I felt like the owner needed to terminate the lease in order
to prevent an argument by a tenant that we as owners
could only terminate if the property was sold to another
third party. Therefore, I think we are covered in that both
Morrisons and us have forwarded notices of termination
of the existing lease to the current tenants and sub-tenant.
If you have any questions regarding this matter, please
let me know.
Chvala testified that she prepared the termination notices “for
all of the parties to ensure that the previous tenants were not
going to show up and try to farm this property.”
(d) Lease and Option Agreements
on Morrison Land
At the time of closing, the leases and option agreements
governing the Morrison Land had not yet been prepared.
Wayne testified that he and Kurt were not concerned by the
delay because “[w]e trusted that what we talked about [with
Chvala] is what was going to happen.” Eventually, Chvala
prepared all of the lease and option agreements that governed
Wayne and Kurt’s relationship with the three Morrison Land
owners. The agreements were similar, but we focus primarily
on the terms of the agreements that governed the half section
of the Morrison Land titled in Gary’s name.
(i) Lease Agreement
Chvala prepared a 10-year triple-net lease agreement which
Gary signed as the lessor, and Wayne and Kurt signed as the
lessees. Paragraph 3 of the lease agreement provided that
base rent was “a sum that constitutes a net net net seven per-
cent (7%) annual return on the total cost to LESSOR of the
land,” which amounted to “an annual rental of $34,835.00
per year.” The lease agreement also contained paragraph 21,
which provided:
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STATE EX REL. COUNSEL FOR DIS. v. CHVALA
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21. REPRESENTATION. The law firm of STROPE,
KROTTER & GOTSCHALL, P.C. has prepared this
Lease Agreement. The law firm of STROPE, KROTTER
& GOTSCHALL, P.C. has in the past and presently
performs legal services for both LESSOR and LESSEE
in unrelated matters. LESSOR AND LESSEE, by sign-
ing this document, hereby acknowledge and agree that
STROPE, KROTTER & GOTSCHALL, P.C. is not acting
as an attorney for either party to this contract. LESSOR
and LESSEE expressly acknowledge and agree that they
have had an opportunity to have an attorney of their
choosing review this Lease Agreement and freely and
voluntarily sign this Agreement without reliance upon
any representations or advice from STROPE, KROTTER
& GOTSCHALL, P.C. All parties agree that they have
not relied on the legal representation or advice of . . .
CHVALA in this matter and that they have had an oppor-
tunity to have any attorney of their choosing review
this Agreement and sign the same voluntarily and with-
out reliance upon any representation or advice from
. . . CHVALA.
Despite the representation in paragraph 21 that Chvala “[was]
not acting as an attorney for either party to this contract,” she
admitted during the evidentiary hearing that she was advising
Gary in the transaction “as his spouse.” None of the other lease
agreements on the Morrison Land indicated on whose behalf
the agreement was prepared.
(ii) Option Agreements
Chvala prepared separate option agreements for Wayne and
Kurt to sign with all three Morrison Land owners. None of the
option agreements indicated whether they were prepared on
behalf of the respective Morrison Land owner, or Wayne and
Kurt, or both. Again, we focus primarily on the terms of the
option agreement involving the half section of the Morrison
Land titled in Gary’s name.
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STATE EX REL. COUNSEL FOR DIS. v. CHVALA
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That option agreement identified Gary as the “seller” and
identified Wayne and Kurt as the “purchasers” of the half sec-
tion of the Morrison Land. It gave Wayne and Kurt an exclu-
sive option to purchase the half section of land for $497,637.
They could exercise the option any time after November 1,
2010, until 5 p.m. on March 1, 2013, by providing written
notice thereof to Gary either in person or by registered mail
at the Atkinson address where Chvala and Gary resided at the
time the option agreement was executed. The option agreement
contained no disclaimer similar to that in paragraph 21 of the
lease agreement.
At the time the option agreement was signed, the assessed
value of the Morrison Land was $528 per acre. Ten years
later, due to a significant rise in land values, the assessed
value was $2,167 per acre, and the market value was signifi-
cantly higher.
(e) Modification of Rents
Bill Gaines is a certified public accountant who, at all rel-
evant times, represented Wayne and Kurt and their various
businesses, Diane and her businesses, and Chvala and Gary
and their businesses. Chvala’s files indicate that in July and
November 2003, she talked with Gaines about the Morrison
Land leases and the impact of the “passive activity rules” gov-
erning related parties. After meeting with Gaines in November
2003, Chvala learned that modifying the Morrison Land lease
agreements to a modified crop-share arrangement would result
in more favorable tax treatment for the landowners.
On November 25, 2003, Chvala sent a letter to Wayne and
Kurt on her firm letterhead. The other Morrison Land own-
ers were copied on the letter. Chvala reported that Gaines had
suggested “on all of the leases we use a modified crop share
arrangement and have you pay a dollar amount for the crops
produced on the real estate and then reimburse you for fertil-
izer, chemicals, seed and machine hire to arrive at the same
net.” Chvala’s letter advised, “This income will still not be
subject to social security tax but then would be considered as
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active income or loss and not subject to the passive activity
rules.” Her letter also advised Wayne and Kurt, “Before we
go any further, please check with the FSA Office to insure the
two of you can still receive all government payments if a crop
share arrangement is in place.” She added, “If you would rather
I contact them, please let me know.”
Kurt testified that he understood this change in rents was
designed to provide a tax benefit to the owners of the Morrison
Land. He and Wayne did not object to the change, because
they had “trust and confidence” in Chvala. According to Kurt,
because Chvala had asked for the change, they were “willing
to do it.”
Regarding the rent modification, the referee found:
[Chvala] determined that for income tax purposes it would
be advantageous if the Kaups’ cash lease was changed to
a modified crop share. However, there was no benefit to
Wayne and Kurt to make this change if it meant that their
annual rental amount could increase. To address that con-
cern, [Chvala] told Wayne and Kurt that even though they
would call the arrangement a modified crop share, the
annual cash rental amount would not change. All Wayne
and Kurt had to do was manipulate the input expense
numbers and crop sale numbers to arrive at the same net
rental amount.
The record shows that after November 2003, Wayne and
Kurt, doing business as K & W Farms, paid rent using the
modified crop-share arrangement suggested in Chvala’s letter.
To facilitate the modified rents, Chvala instructed Wayne and
Kurt to complete an annual “[r]ent [w]orksheet,” which they
did. No written changes or addenda were made to the previ-
ously executed lease agreement.
2. Transfer of Ownership
to TTC Enterprises
In December 2003, Chvala and Gary formed TTC Enterprises,
LLC, and Gary transferred title of the half section of the
Morrison Land to TTC Enterprises. Chvala prepared the legal
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documents necessary to both create TTC Enterprises and to
effectuate the title transfer of the Morrison Land. Gary owned
99 percent of the shares in TTC Enterprises, and Chvala owned
the remaining 1 percent. Chvala notified Wayne and Kurt that
ownership of the half section of the Morrison Land had been
transferred to TTC Enterprises, but she did not advise them of
her ownership interest in the entity.
Throughout the 10-year lease term, Wayne and Kurt farmed
the Morrison Land as part of their farming operation, K & W
Farms, which Chvala reorganized as a partnership in 2006.
Wayne and Kurt delivered to Chvala at her law office rent
checks for the half section of the Morrison Land owned by
TTC Enterprise. The first year the rent was made payable
to Gary, and thereafter, the checks were made payable to
TTC Enterprises. When the Kaup brothers received checks
from TTC Enterprises regarding the Morrison Land, they were
signed by Chvala and made payable to “K & W Farms.”
3. Premier Pork, LLC,
Builds Hog Facility
Premier Pork, LLC, is an entity Chvala created for Wayne
and Kurt in 1998. At all relevant times, Chvala was the attor-
ney for Premier Pork. Wayne, Kurt, Diane, and Rita were all
members of Premier Pork when it was organized. In late 2004,
Wayne and Kurt met with Chvala to discuss plans for Premier
Pork to construct a hog finishing facility on nonirrigated por-
tions of the Morrison Land.
Their plan was to construct the facility on a 5-acre tri-
angle of the Morrison Land owned by TTC Enterprises and
an adjacent 5-acre triangle of the Morrison Land owned by
Rita. Because it was essential to the hog finishing business
that manure generated by the hogs could be spread across the
entire section of the Morrison Land, Premier Pork also needed
to obtain manure easements from all of the owners of the
Morrison Land. Wayne testified they would never have pro-
posed building the hog confinement facility on the Morrison
Land if there was any question they were not going to “own
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the land later.” He testified that Chvala and Gary were “[v]ery
accommodating” of their plan.
Wayne and Kurt asked Chvala to assist them with the land
transfers and easements needed to start the hog finishing opera-
tion on the Morrison Land. Wayne testified that he and Kurt
obtained the necessary measurements of the 5-acre tracts and
provided the information to Chvala so she could prepare legal
descriptions and warranty deeds conveying the tracts from
TTC Enterprises and Rita to Premier Pork. Chvala admitted
she communicated with Wayne about these transactions, and
she further admitted that Wayne asked her office to prepare the
necessary warranty deeds, real estate transfer statements, and
manure easements. But Chvala denied preparing the necessary
legal documents, testifying instead that her legal assistant pre-
pared the documents under her supervision.
TTC Enterprises transferred the 5 acres from its half sec-
tion of the Morrison Land to Premier Pork on April 19, 2005.
Wayne and Kurt’s annual rent on the remaining half section of
the Morrison Land owned by TTC Enterprises did not change
after the transfer. As part of the TTC Enterprises transaction,
Chvala also prepared a “Real Estate Transfer Statement Form
521.” This form stated TTC Enterprises was the grantor, and
Chvala signed the form as the representative for the grantee,
Premier Pork.
After acquiring the 5 acres from both TTC Enterprises and
Rita and obtaining manure easements from all owners of the
Morrison Land, the Kaup brothers spent nearly $1 million
dollars to build the hog finishing facility on the Morrison
Land.
4. Legal Representation
of Kaup Brothers
The referee found that throughout the 10-year term of the
leases on the Morrison Land, Chvala continued to represent
Wayne and Kurt in their personal and business matters. We
summarize just a fraction of the evidence of that representation:
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• From 2002 to 2009, Chvala provided ongoing representation
to K & W Trucking, Inc., an entity owned by Wayne and Kurt
and used to haul grain;
• From 2003 to 2011, Chvala provided ongoing representation
to Green Valley Hay & Mulch, LLC, a hay brokerage busi-
ness owned by Wayne;
• From 2004 to 2006, Chvala provided ongoing representation
to Wayne and Kurt regarding their various business and farm-
ing operations, including K & W Farms;
• From 2006 through 2011, Chvala provided ongoing rep-
resentation to K & W Farms after it was reorganized as a
partnership;
• From 2004 through 2007, Chvala provided ongoing represen-
tation to Premier Pork, the hog finishing business owned by
Wayne and Kurt and others;
• From 2004 through 2009, Chvala provided estate planning
services to Wayne;
• In 2005 and 2006, Chvala provided estate planning services
to Kurt; and
• In 2007, Chvala and her law partner represented Wayne in
his divorce.
Moreover, during the 10-year term of the Morrison Land
leases, Chvala regularly communicated with Wayne and Kurt
regarding a variety of legal matters, including some relat-
ing to the Morrison Land. For instance, in October 2004,
Chvala met with Wayne and Kurt to discuss and coordinate
their various land, farming, and livestock matters. Chvala’s
notes from that meeting show they discussed the Morrison
Land, including the Kaup brothers’ plan to construct the
hog finishing facility on that land. In July 2006, Chvala met
again with Wayne and Kurt to discuss their business planning
needs, and Chvala’s notes from that meeting included refer-
ence to K & W Farms’ farming operation on the Morrison
Land and Premier Pork’s new hog finishing facility on the
Morrison Land.
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5. February 23, 2010, Meeting
On February 23, 2010, Wayne and Kurt met with Chvala
and discussed at least three matters: certain buy-sell arrange-
ments involving their businesses, the operating structure of
their businesses, and the option to purchase the half section of
the Morrison Land owned by TTC Enterprises. With respect to
the option to purchase, Chvala’s notes from that meeting say
“R/E / Lease - documents control, their option - OK to con-
tinue lease.”
Chvala kept a personal file titled “Chvala/Kaup Option
and Lease,” and during the evidentiary hearing, she offered a
memorandum to that file dated February 25, 2010, which she
prepared concerning the February 23 meeting. This memoran-
dum stated in part:
We discussed the Lease Agreement and Purchase Option
that Gary/TTC have with Wayne and Kurt. I told them
that Gary had no problem continuing the lease arrange-
ment for the time being. We also discussed the fact that I
do their work on other legal matters and we have differing
interests on this matter and that I cannot represent them
on this issue, as I will be protecting Gary and my inter-
ests, and they should feel free to obtain separate, other
representation on this arrangement. They said they under-
stood that and then asked if we intended to honor the
agreements and I responded “certainly, they are legally
binding documents, we made the deal and we intend to
follow the terms of the agreements.”
Wayne testified that the statements described by Chvala in
this memorandum never happened. Specifically, he testified
Chvala “[n]ever” discussed that her interest in the lease and
option agreements differed from theirs and “[n]ever” told them
to consult other legal counsel regarding the Morrison Land.
According to Wayne, when they discussed the option agree-
ment during the February 23, 2010, meeting, the focus was
on whether Chvala and Gary were interested in selling at least
a portion of the half section of the Morrison Land owned by
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TTC Enterprises early, before the option opened. Wayne testi-
fied that Chvala told them they were not interested in splitting
the land, but did want to find other land to invest in when the
time came to exercise the option. The referee’s report indi-
cates he found Wayne’s testimony on this issue more credible
than Chvala’s.
6. April 15, 2011, Letter
In January 2011, during a time when the option period was
open, Kurt contacted Chvala’s office and asked for signed cop-
ies of the agreements he and Wayne had with the Morrison
Land owners. Approximately 3 months later, on April 15,
Chvala responded to this request in a letter to Kurt, enclosing
a copy of the option agreement between Gary and the Kaup
brothers. Her letter advised that she checked her files but could
not find signed copies of the option agreements with either Rita
or Sandyland. The April 15 letter also stated:
As you know, I perform various legal work for you
and your entities as needed or directed by you. We have
previously discussed the Lease Agreement and Purchase
Option and I have informed you that we have differing
interests and I cannot represent you on those matters, and
you should feel free to obtain separate, other representa-
tion on that arrangement. It is our intention to continue
the lease arrangement this year as in the past.
If you wish to discuss further, please feel free to con-
tact me.
7. November 12, 2012, Telephone Call
On November 12, 2012, Kurt telephoned Chvala at her
office. He knew the option was open at this time, and he testi-
fied that he called to “relay[] to her again that we were wanting
to buy their ground.” During the call, Kurt told Chvala they
were “ready and willing” to purchase the half section of the
Morrison Land. He testified that Chvala responded by saying
that she was busy, that she and Gary were looking for other
land to invest in, and that she was looking “to do something
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more towards the end of the year.” Kurt testified Chvala did
not tell him they needed to do anything else to exercise the
option, and after the November 12 telephone conversation,
Kurt expected they would be able to purchase the half section
of the Morrison Land from TTC Enterprises at the end of 2012.
When asked whether he relied on that telephone conversation
with Chvala, Kurt testified, “Very much so.” He also testified
that because he always dealt with Chvala with respect to the
Morrison Land, he never even thought about communicating
directly with Gary.
Chvala agreed that Kurt telephoned her office on November
12, 2012, but she testified it was to discuss settling up the
modified rent amounts for that year. She admitted that during
the call Kurt mentioned they were working on financing for the
option, but she denied that Kurt said, “I want to exercise the
option.” She also denied telling Kurt that she and Gary were
looking for other investment property. The day after this tele-
phone call, Wayne and Kurt wrote a check to TTC Enterprises
for the 10th and final annual rent payment due under the lease
agreement. The referee found that, at this point, Chvala and
Gary had “received the 7% annual return on their investment
as agreed to in January 2003.”
Kurt subsequently learned of some land for sale known as
the Waldo Quarters. On or about December 12, 2012, Kurt
called Chvala to inform her the Waldo Quarters land was avail-
able. Chvala responded in a text message to Kurt the same
day: “Not interested in Waldo Qtrs . . . probably nothing this
year . . . .”
8. Communication With Bank
and Title Company
On or about December 13, 2012, 1 day after Chvala told
Kurt she was not interested in buying the Waldo Quarters,
Kurt contacted Jon Schmaderer, president of the local bank, to
arrange financing to purchase the half section of the Morrison
Land owned by TTC Enterprises. Kurt told Schmaderer the
deal would be done by the end of the year. That same day,
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Schmaderer asked bank employee Nicole Cadwallader to
“order a $500,000 title commitment on K&W Farms” and
provided a legal description of the half section of the Morrison
Land owned by TTC Enterprises. Schmaderer told Cadwallader
he thought Chvala would do the closing. Cadwallader replied
that she would contact the title company to find out the rel-
evant information.
Cadwallader did so on December 18, 2012, and the title
company told her it needed the seller’s name, sale price, and
the legal description of the property or a copy of the purchase
agreement to order the title insurance. During this conversa-
tion, Cadwallader told the title company that Chvala was han-
dling the closing.
On December 19, 2012, the owner of the title company
called Chvala and left a message with her secretary asking
Chvala to call him “ASAP.” Chvala knew the owner and had
done business with him in the past. The secretary told Chvala
that the owner of the title company had received “a note from
[Cadwallader] . . . something about K&W Farms. He doesn’t
have any info to go on. [Cadwallader] said you were han-
dling!” Chvala testified that she read the message, but did not
understand it to be referencing the purchase option with Wayne
and Kurt. She did not respond to the message.
9. December 19, 2012, Telephone Call
Also on December 19, 2012, Cadwallader telephoned Chvala
to discuss the information she needed to order the title insur-
ance. Cadwallader testified that the conversation lasted 1 min-
ute or less and that she “asked if [Chvala] was handling the
[K & W Farms] closing.” According to Cadwallader, Chvala
seemed to recognize what she was talking about and did not
seem confused. Chvala told Cadwallader the closing was not
going to happen before the end of the year, but was “‘[l]ooking
more towards March.’”
Chvala recalled Cadwallader asking whether she had a
purchase agreement and saying Wayne and Kurt needed to
close by the end of the year. But according to Chvala, she did
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not realize Cadwallader was referencing the Morrison Land
and instead thought she was referring to the Waldo Quarters,
which Chvala understood Wayne and Kurt were interested
in buying.
10. Title Commitment Email
After the telephone call with Chvala on December 19, 2012,
Cadwallader sent an email to the bank stating:
I just talked to [Chvala] and the deal between her and
K&W is not happening this year. She said she cannot get
it done and is looking more toward March for a closing
date. I have talked to [the loan officer] and he was going
to let Kurt know. McCarthy is working on the title insur-
ance and will have that to us but no closing for now.
A title commitment was sent via email from the title com-
pany to both Cadwallader and Chvala on December 21. The
title commitment clearly showed the land to be purchased
by Wayne and Kurt was the half section of the Morrison
Land owned by TTC Enterprises. Chvala testified she did not
open this email until sometime in January 2013. Once she
opened the email and saw the title commitment, she admits
she knew Wayne and Kurt were trying to move forward with
closing on the half section of the Morrison Land owned by
TTC Enterprises. Despite this knowledge, Chvala did noth-
ing. Instead, she waited until after the option period closed to
contact Wayne and Kurt. When asked why, Chvala testified, “I
thought having communication with them would have been a
violation of the ethical rules. I distanced, advised I could not
represent them, and I did not want to give them any communi-
cation or advice at all.”
Wayne testified that he and Kurt both knew Chvala was
aware they wanted to buy the half section of the Morrison
Land, so when the closing did not occur at the end of 2012
they simply “trusted it was going to happen” based on “how
[Chvala’s] schedule” worked. Wayne was not concerned when
the option period closed on March 1, 2013, because he had “an
immense amount of trust” in Chvala.
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11. March 2013 Communications
By its terms, the option terminated at 5 p.m. on March 1,
2013. Kurt called Chvala’s office on March 6, but Chvala did
not take his call, even though she was in the office. On March
8, Kurt sent an email to Chvala which stated:
I know I have talked to you about our intent to pur-
chase the S 1⁄2 of Section 6-31-14 a couple of times
back in the spring of 2011 and again in December of
2012. . . . Schmaderer told me he was going to order
the Title Commitment back in December. I believe that
has been delivered to the bank and they are just waiting
for a Purchase Agreement. I was wondering if we could
get together with you hopefully this week and get this
finished up or if that won’t work at least get something
done here in the month of March.
The same day this email was received by Chvala, it was
faxed by Gary to an attorney he had retained to represent him
in the matter. Gary’s attorney then sent Wayne and Kurt a
letter by certified mail advising that the purchase option and
lease had expired, but that Gary was willing to enter into a
new lease agreement with them. After receiving this certified
letter, Kurt telephoned Gary because he was “confused about
why we were getting [the letter] after everything I had been
doing towards the end . . . of 2012.” According to Kurt, Gary
told him, “‘That’s [Chvala’s] deal.’ . . . ‘You’ll have to talk to
her about that.’”
On March 12, 2013, Chvala wrote a letter to Wayne and
Kurt. She acknowledged they had been attempting to reach her
for several days, and then stated:
Years ago, when the leases were drafted, I handled those
matters and included disclosure and obtained your con-
sents to my doing so.
Now, I think changes in the law make it prudent that I
refrain from providing services to you in connection with
new contracts or legal matters with my husband or our
company. I prefer not to continue to provide service even
with consents and waivers of possible conflicts.
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In response, Wayne and Kurt hired another attorney who,
on March 15, 2013, sent Gary a letter via registered mail to
the address listed in the option agreement, notifying him that
Wayne and Kurt were exercising their option to purchase the
half section of the Morrison Land. Gary’s attorney rejected this
as a “nonconforming attempt to exercise the option at issue.”
On April 2, Wayne and Kurt tendered a cashier’s check for the
option purchase price to Gary and TTC Enterprises. This too
was rejected.
12. Civil Suit and Settlement
On April 8, 2013, Wayne and Kurt filed a civil lawsuit in the
district court for Holt County against Gary, Chvala, and TTC
Enterprises. Gary died unexpectedly in July, and the civil suit
was revived with Chvala as Gary’s personal representative. The
parties eventually settled the civil suit, and as a result of the
settlement, Wayne and Kurt purchased the half section of the
Morrison Land owned by TTC Enterprises for $1.8 million—
more than 31⁄2 times the purchase price of $497,637 set out in
the option agreement.
13. Procedural History of
Disciplinary Action
While the civil lawsuit was pending, Chvala contacted
the Counsel for Discipline to self-report that there had been
“some suggestion” her actions with respect to the Morrison
Land may have violated the disciplinary rules. Wayne and
Kurt subsequently filed a grievance against Chvala with the
Counsel for Discipline, also regarding the Morrison Land. The
Committee on Inquiry of the Third Judicial District reviewed
the matter and determined there were reasonable grounds for
discipline against Chvala. Formal charges were filed on July
26, 2017, and amended formal charges were filed on January
29, 2018.
Prior to September 1, 2005, the conduct of Nebraska
attorneys was governed by Nebraska’s Code of Professional
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Responsibility. Since that date, the conduct of Nebraska attor-
neys has been governed by the Nebraska Rules of Professional
Conduct. Because the alleged disciplinary violations against
Chvala span from 2003 through 2013, Chvala was charged
with violations of various provisions under both the code
and the rules. Some of the sections of the Nebraska Rules of
Professional Conduct have been amended after 2013, but for
purposes of this opinion, the current version of the rules will be
referenced, because the amendments do not impact the appli-
cability of the rules to Chvala’s alleged disciplinary violations.
Chvala denied all charges.
Retired Judge Paul W. Korslund was appointed as referee,
and a 4-day evidentiary hearing was held. The referee issued a
99-page report and recommendation finding multiple violations
of the disciplinary provisions and recommending Chvala be
disbarred. Chvala timely filed exceptions to the referee’s report
and recommendation.
III. STANDARD OF REVIEW
[1,2] Attorney discipline cases are original proceedings
before the Nebraska Supreme Court. As such, the court reviews
a referee’s recommendations de novo on the record, reaching
a conclusion independent of the referee’s findings.1 Violations
of disciplinary rules must be established by clear and convinc-
ing evidence.2
IV. ANALYSIS
[3-5] The basic issues in a disciplinary proceeding against
an attorney are whether discipline should be imposed and, if
so, the appropriate discipline evaluated under the particular
facts and circumstances of the case.3 In this appeal, Chvala
1
See State ex rel. Counsel for Dis. v. Nimmer, 300 Neb. 906, 916 N.W.2d
732 (2018).
2
See id.
3
State ex rel. Counsel for Dis. v. Jorgenson, 302 Neb. 188, 922 N.W.2d 753
(2019).
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contends the referee erred in finding she committed any vio-
lation of a disciplinary provision and further erred in recom-
mending disbarment. Where, as here, a party takes exception
to the referee’s report, this court conducts a trial de novo on
the record in which we reach a conclusion independent of
the findings of the referee; provided, however, that where the
credible evidence is in conflict on a material issue of fact, we
consider and may give weight to the fact that the referee heard
and observed the witnesses and accepted one version of the
facts rather than another.4 Here, the referee made express deter-
minations regarding the relative credibility of the testimony of
Chvala and Wayne and Kurt on certain matters. When a referee
makes an express determination about the relative credibility of
witnesses, we give weight to that determination in our de novo
review, but we are not bound by it.5
We have conducted a trial de novo on the record, and
we address below those disciplinary violations alleged in the
amended formal charges which we find were proved by clear
and convincing evidence.
1. Preliminary Issues
In defending against these disciplinary charges, Chvala
emphatically denies that she (1) played any role whatsoever
in the Morrison Land deal or (2) provided any legal represen-
tation regarding the Morrison Land. We soundly reject both
arguments. Instead, we find clear and convincing evidence that
Chvala played a central role in negotiating the purchase of the
half section of the Morrison Land, that Chvala was an owner of
that land, and that Chvala provided simultaneous legal advice
and representation to both the lessors and the lessees of the
Morrison Land.
4
Nimmer, supra note 1.
5
See State ex rel. Counsel for Dis. v. Ellis, 283 Neb. 329, 808 N.W.2d 634
(2012).
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(a) Chvala Negotiated Morrison Land Deal
Chvala flatly denies any direct involvement in the January
12, 2003, meeting with the Kaup brothers. She claims the
decision to purchase the Morrison Land, and all the decisions
regarding that investment, were made by Gary. In arguing
that no disciplinary provisions are implicated by her conduct,
Chvala’s brief to this court states, “[She] did not buy the
Morrison Ventures land or lease it to Kaups; her husband did.
So the [disciplinary] Rule does not apply.”6
The referee expressly found that, to the extent Chvala testi-
fied she was not involved in either the January 12, 2003, meet-
ing or in decisions regarding how to structure the Morrison
Land investment, her testimony was “implausible and not cred-
ible.” Having reviewed the record de novo, we agree.
There is clear and convincing evidence that once Wayne and
Kurt approached Chvala about investing in the Morrison Land,
she became the primary negotiator of the resulting deal. The
record fully supports the referee’s findings that (1) Chvala was
the one who decided to purchase a half section of the Morrison
Land and lease it back with an option to purchase rather than
loan Wayne and Kurt money to purchase a quarter section
of the land outright, (2) Chvala was the one who negotiated
the terms of the lease agreement with Wayne and Kurt, and
(3) Chvala was the one who decided the half section of the
Morrison Land would be titled in Gary’s name for estate plan-
ning purposes.
(b) Chvala Was Investor and Owner
The record also refutes Chvala’s claim that she had no own-
ership interest in the Morrison Land. It is true that the half
section of the Morrison Land was initially titled in only Gary’s
name, but roughly half the funds used to purchase the land came
from Chvala’s personal bank account and she was obligated on
the promissory note that secured the remaining portion of the
6
Brief for respondent at 30.
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purchase funds. She therefore had a personal financial interest
as an investor in the half section of the Morrison Land from
the date of purchase forward. Moreover, Chvala obtained an
ownership interest in the Morrison Land once Gary transferred
title of his half section to TTC Enterprises, an entity in which
Chvala was a shareholder. On this record, we find Chvala
was as much an investor and owner in the half section of the
Morrison Land as was her husband, and we soundly reject her
claims to the contrary.
(c) Chvala Acted as Attorney
Regarding Morrison Land
Chvala generally denies acting as an attorney regarding the
Morrison Land. She specifically denies either (1) preparing
the legal documents related to the Morrison Land transac-
tions or (2) representing any client in matters relating to the
Morrison Land. We address each argument in turn, and we
reject both.
(i) Chvala Prepared All Relevant
Legal Documents
Throughout her testimony, Chvala resisted being character-
ized as the attorney who prepared the legal documents relating
to the Morrison Land. The following exchange is one such
example from her testimony:
[Counsel for Discipline:] [Y]ou participated in the
transfer of approximately 4.7 acres of land from TTC
Enterprises to Premier Pork in April of 2005; correct?
[Chvala:] No.
Q: No. You didn’t participate in that?
A: No.
Q: You didn’t draft any of the documents?
A: My office did.
Q: Who in your office?
A: Barb.
Q: Is she a lawyer?
A: No.
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Q: No. Did Barb on her own create these documents?
A: Yes.
Q: Without any input from you? Is that what you’re
testifying?
A: I prepared the deed forms. I had the deed forms in
my office available. I oversee my staff. When this trans-
action came up, I communicated with Wayne. He said
what he wanted. He wanted a deed from Gary and an
easement.
Q: Okay. And you prepared those in your office?
A: No. I told him to deliver the documents, and I
would get them to Gary.
Q: Deliver what documents?
A: The deed and the easement.
Q: Who prepared those?
A: He didn’t have time to go have them done some-
where else, so asked Barb to prepare those documents.
Q: Who asked Barb?
A: Wayne.
Q: Wayne came to your office and asked Barb to
prepare documents regarding a transaction with TTC
Enterprises?
A: Yes. And said that his mother[, Diane,] would be
sending the legal descriptions.
Q: And so Barb was providing legal representation to
Wayne . . . ?
A: No. Our office was the scrivener on those deeds
with the legal description that Diane with Wayne provided
by fax to Barb.
Consistent with the above testimony, Chvala generally took
the position that the legal documents pertaining to the Morrison
Land, including warranty deeds in 2003 and 2005, the lease
agreements, the option agreements, and the manure easements,
were all prepared by nonattorney staff in her office using
standard forms she had prepared previously. In her testimony,
Chvala repeatedly described her role in preparing those legal
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documents as that of a “scrivener.” In her brief to this court,
she repeats this general argument, urging us to find that when
a lawyer acts as a “scrivener” they are not acting as an attorney
for any party.7 We firmly reject her invitation.
[6] Even assuming without deciding that an attorney may,
consistent with the ethical rules, enter into a limited scope
agreement 8 for the sole purpose of reducing to writing an
agreement separately negotiated by parties with differing inter-
ests, there was no limited scope agreement here with respect
to any of the Morrison Land documents Chvala prepared.
Chvala’s argument that she should be treated only as a scriv-
ener appears to be an attempt to minimize the role she played
as an attorney by suggesting she had no meaningful role
in preparing essential legal documents that related to the
Morrison Land. But it hardly needs saying that a lawyer is
ultimately responsible for the conduct of his or her employees
and associates in the course of the professional representation
of the client.9
Only lawyers may engage in the practice of law in Nebraska,
and that includes “[s]election, drafting, or completion, for
another entity or person, of legal documents which affect the
legal rights of the entity or person.”10 Nonlawyer assistants in
a law office act under the supervision of a lawyer,11 and they
“act for the lawyer in rendition of the lawyer’s professional
services.”12 A lawyer may not avoid responsibility for miscon-
duct by hiding behind an employee’s behavior, nor may the
lawyer avoid a charge of unprofessional conduct by contend-
ing the legal work was performed by an employee.13 And as
7
Id. at 21.
8
See Neb. Ct. R. of Prof. Cond. § 3-501.2 (rev. 2016).
9
State ex rel. NSBA v. Kirshen, 232 Neb. 445, 441 N.W.2d 161 (1989).
10
Neb. Ct. R. § 3-1001(B).
11
Neb. Ct. R. § 3-1005.
12
Neb. Ct. R. of Prof. Cond. § 3-505.3, comment 1.
13
See Kirshen, supra note 9.
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p­ reviously stated, a lawyer is ultimately responsible for the
conduct of his or her employees and associates in represent-
ing clients.14
It is thus immaterial, for purposes of this disciplinary action,
whether Chvala personally prepared the legal documents relat-
ing to the Morrison Land or had her office staff prepare them
for her review and approval. The evidence is clear and con-
vincing that Chvala was the attorney responsible for prepar-
ing most, if not all, of the essential legal documents related
to the Morrison Land. We reject, as both factually and legally
unsound, Chvala’s attempts to distance herself from the prepa-
ration of the essential legal documents in an effort to avoid the
disciplinary provisions governing attorneys.
(ii) Chvala Represented Lessors and
Lessees of Morrison Land
Despite preparing all of the pertinent legal documents relat-
ing to the Morrison Land, Chvala denies representing any of
the Morrison Land lessors (Gary, TTC Enterprises, Sandyland,
and Rita) or lessees (Wayne and Kurt) in any matter related
to the Morrison Land. Chvala does not deny that during the
term of the Morrison Land lease agreements all these parties
were her existing clients in other matters, but she argues that
she did not represent any of these parties in matters related to
the Morrison Land. We find her position in this regard some-
what astonishing.
[7] Although Chvala did not have a discreet engagement
agreement with any of the lessors or lessees with respect to
the Morrison Land, that does not end our inquiry. An attorney-
client relationship with respect to a particular matter may be
implied from the conduct of the parties.15 And here, we find
clear and convincing evidence, particularly when viewed from
the standpoint of the lessors and lessees of the Morrison Land,
14
See id.
15
See McVaney v. Baird, Holm, McEachen, 237 Neb. 451, 466 N.W.2d 499
(1991).
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the conduct of the parties shows that Chvala was the attorney
everyone looked to for legal advice related to the Morrison
Land and that she was the attorney who prepared all of the
legal documents necessary to achieve their goals and protect
their interests regarding that land.
[8] Generally speaking, an attorney-client relationship is
created when (1) a person seeks advice or assistance from an
attorney, (2) the advice or assistance sought pertains to mat-
ters within the attorney’s professional competence, and (3)
the attorney expressly or impliedly agrees to give or actually
gives the desired advice or assistance.16 In appropriate cases
the third element of an attorney-client relationship may be
established by proof of detrimental reliance, when the person
seeking legal services reasonably relies on the attorney to
provide them, and the attorney, aware of such reliance, does
nothing to negate it.17
Here, the record shows that from January 12, 2003, until
at least March 12, 2013, all those involved with the Morrison
Land, including the Kaup brothers, sought and relied upon
Chvala’s assistance in transactions related to the Morrison
Land. Sometimes Chvala’s assistance was specifically requested
on a Morrison Land matter—like when she was asked to form
Sandyland for Diane to hold and manage the Morrison Land,
when she was asked to prepare the warranty deeds and transfer
statements on behalf of all three Morrison Land purchasers,
and when she was asked by Wayne to prepare the warranty
deeds so Premier Pork could obtain title to portions of the
Morrison Land from TTC Enterprises and Rita. But in most
instances, Chvala provided legal advice and assistance regard-
ing the Morrison Land without a specific request. It appears
she did so on her own initiative, performing the legal work she
felt was necessary.
For instance, shortly after closing on the Morrison Land
occurred, Chvala prepared and sent lease terminations to all of
16
Id.
17
Id.
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the prior tenants, representing herself as the attorney for each
of the three Morrison Land owners. There is no evidence the
Kaup brothers or any of the three landowners asked Chvala
to take this action on their behalf, but Chvala admits that she
prepared and sent the lease terminations on behalf of “all the
parties” and that she did so “to ensure that the previous tenants
were not going to show up and try to farm” any of the Morrison
Land. Chvala forwarded copies of the lease termination notices
in a letter she collectively addressed to “Diane, Rita, Wayne
and Kurt” explaining to all that she felt the notices were nec-
essary to protect against an argument by the prior tenants and
subtenants that they still had rights to farm the Morrison Land.
Chvala’s actions in this regard would reasonably lead Diane,
Rita, Wayne, and Kurt to believe she was protecting and repre-
senting their collective interests in the matter, and Chvala did
nothing to negate that belief.
Chvala prepared all of the lease agreements and all of the
option agreements that governed the relationships between
the owners of the Morrison Land as lessors and Wayne and
Kurt as lessees. In the lease agreement between Gary and the
Kaup brothers, Chvala included language stating that she was
“not acting as an attorney for either party to this contract.”
But no such language appears in any of the other lease agree-
ments, or in any of the three option agreements. Instead, it is
not apparent from the face of those agreements, or from the
testimony of the parties, whether Chvala prepared those agree-
ments on behalf of the lessors, the lessees, or both. What is
apparent is that even absent evidence that a particular client
directed Chvala to prepare the lease and option agreements on
their behalf, the agreements were necessary to accomplish the
investment goals and to protect the financial interests of all
those involved in the Morrison Land transactions, whether as
lessors or lessees. We therefore conclude that, on this record,
with the exception of the lease agreement Chvala prepared for
Gary and the Kaup brothers, her conduct in preparing all the
necessary lease and option agreements for all involved parties
would reasonably lead those parties to believe Chvala was
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protecting and representing their interests in the matter. Chvala
did nothing to negate that belief.
In November 2003, Chvala sent a letter to Wayne and Kurt
on her firm letterhead, with copies to all Morrison Land own-
ers, reporting that Gaines, their mutual accountant, had sug-
gested “all of the leases” should use a modified crop-share
arrangement rather than a triple-net arrangement. There is no
evidence that any lessor or lessee specifically asked Chvala
to modify the rental arrangement, but Chvala presented the
arrangement as benefiting all of the Morrison Land owners,
and the record shows that after Chvala sent the letter, Wayne
and Kurt began paying rent under the modified arrangement. In
the same letter, Chvala offered to contact the “FSA Office” on
behalf of Wayne and Kurt to ensure they would still be able to
receive government payments if a modified crop-share arrange-
ment was in place. This is yet another example that would
lead the parties, whether they be lessors or lessees, to believe
Chvala was representing their collective interests regarding the
Morrison Land.
We further note that even Chvala’s own words support a
finding that she considered herself to have an attorney-client
relationship with Wayne and Kurt on matters related to the
Morrison Land. In the letter she sent them on March 13, 2013,
she stated that in the future she would “refrain from providing
services” to them “in connection with new contracts or legal
matters with my husband or our company.” We read this as
an implied admission that she had been providing legal serv­
ices to Wayne and Kurt in connection with Gary and TTC
Enterprises, and thus the Morrison Land, and the record bears
that out.
The evidence demonstrates that all those involved with
the Morrison Land, whether as lessors or lessees, were exist-
ing clients of Chvala’s in other matters and the legal issues
involved in the Morrison Land transactions were within
Chvala’s professional competence and were similar to legal
services Chvala had provided previously to these same clients.
Everyone involved with the Morrison Land relied on Chvala
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to prepare the legal documents that established and governed
all their legal interests regarding the Morrison Land. And
everyone involved with the Morrison Land reasonably relied
on Chvala’s legal advice and expertise to protect their interests
and accomplish their goals.
Given the collective approach Chvala took to handling all
of the legal matters that arose in connection with the Morrison
Land—whether asked to or not—and the reasonable expecta-
tions that conduct created in her existing clients, it should come
as no surprise that we find Chvala represented, either expressly
or impliedly, all of the individuals and entities involved in the
transactions related to the Morrison Land.
(iii) Disclaimers of Attorney-Client
Relationship
In reaching this conclusion, we do not ignore Chvala’s tes-
timony that she orally advised Wayne and Kurt, first during
the meeting of January 12, 2003, and later during a meeting
on February 23, 2010, that even though she was their lawyer
in other legal matters, she could not represent them in matters
related to the Morrison Land because Gary was involved. Nor
do we ignore evidence of the disclaimer contained in paragraph
21 of the lease agreement between Gary and the Kaup broth-
ers or the letter Chvala sent the Kaup brothers in April 2011
referencing prior oral disclaimers. But as we explain below,
none of this evidence changes our conclusion that Chvala had
an attorney-client relationship with Wayne and Kurt on matters
related to the Morrison Land.
As for any oral disclaimers of an attorney-client relation-
ship regarding the Morrison Land, we have already discussed
the referee’s credibility finding that Chvala made no such
disclaimers. Given that finding, Chvala’s April 2011 letter
purporting to reference back to earlier oral disclaimers can
fare no better. But even if we were to find Chvala’s testimony
credible, and conclude she expressly told Wayne and Kurt as
early as 2003 that she would not represent them in matters
related to the Morrison Land, we would nevertheless find that
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Chvala’s subsequent conduct in actually representing the Kaup
brothers concerning the Morrison Land speaks louder than
her words.
Despite Chvala’s claim that she would be representing only
Gary’s interests with respect to the Morrison Land, Chvala
consistently prepared legal documents for, and offered legal
advice to, all those involved with the Morrison Land, including
Wayne and Kurt. When Chvala met periodically with Wayne
and Kurt to discuss their various business ventures and do
business planning, the Morrison Land, including the option,
was discussed to the extent it impacted K & W Farms and
Premier Pork. When Wayne asked Chvala to prepare the neces-
sary documents so Premier Pork could obtain title to portions
of the Morrison Land from TTC Enterprises and Rita, she did
so, and identified herself as the attorney for Premier Pork in
the transaction. When Wayne asked Chvala to prepare manure
easements so Premier Pork could spread manure across the
entire section of the Morrison Land, she did so. Given Chvala’s
conduct in actually providing legal advice and representation
to Wayne and Kurt in the Morrison Land matter, we cannot
give more weight to an oral disclaimer than we do to Chvala’s
subsequent actions.
We reach a similar conclusion regarding the limited dis-
claimer language contained in paragraph 21 of the lease agree-
ment. That language purported to disclaim any attorney-client
relationship between Chvala and all parties to the lease agree-
ment for purposes of reviewing and signing the lease agree-
ment. But “[e]ven the use of a disclaimer may not prevent the
formation of attorney-client relationships if the parties’ subse-
quent conduct is inconsistent with the disclaimer.”18 And here,
because there was clear and convincing evidence that Chvala’s
subsequent conduct was sufficiently inconsistent with the lim-
ited disclaimer set forth in paragraph 21 of the lease agree-
ment, Chvala cannot rely on the disclaimer to argue she had no
18
See S.C. Bar Ethics Adv. Comm. 12-03, 2012 WL 1142185 at *4 (Jan. 1,
2012).
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attorney-client relationship with the Kaup brothers regarding
the Morrison Land.
We now consider the various disciplinary charges against
Chvala, and we do so in light of our preliminary findings that
she (1) played a central role in negotiating the purchase of
a half section of the Morrison Land, and had an ownership
interest in that half section of land, and (2) provided legal
advice and representation to both the lessors and lessees of the
Morrison Land on matters related to the Morrison Land.
2. Business Transactions
With Clients
Chvala was charged with violating the rules prohibiting
lawyers from entering into business transactions with clients
under Canon 5, DR 5-104(A), of the Code of Professional
Responsibility, which governed her conduct before September
1, 2005, and Neb. Ct. R. of Prof. Cond. § 3-501.8 (rev. 2016),
which governed her conduct after September 1, 2005.
DR 5-104 is entitled “Limiting Business Relations with a
Client,” and provides:
(A) A lawyer shall not enter into a business transaction
with a client if they have differing interests therein and if
the client expects the lawyer to exercise his or her profes-
sional judgment therein for the protection of the client,
unless the client has consented after full disclosure.
Section 3-501.8 is entitled “Conflict of interest; current cli-
ents: specific rules,” and provides in part:
(a) A lawyer shall not enter into a business transaction
with a client or knowingly acquire an ownership, pos-
sessory, security or other pecuniary interest adverse to a
client unless:
(1) the transaction and terms on which the lawyer
acquires the interest are fair and reasonable to the client
and are fully disclosed and transmitted in writing in a
manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability
of seeking and is given a reasonable opportunity to seek
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the advice of independent legal counsel on the transac-
tion; and
(3) the client gives informed consent, in a writing
signed by the client, to the essential terms of the trans-
action and the lawyer’s role in the transaction, includ-
ing whether the lawyer is representing the client in the
transaction.
(b) A lawyer shall not use information relating to the
representation of a client to the disadvantage of the client
unless the client gives informed consent, except as per-
mitted or required by these Rules.
Before directly addressing the application of either disci-
plinary provision, we examine two threshold questions that
arise under both: (1) whether the Morrison Land deal was a
“business transaction” and (2) whether Wayne and Kurt were
Chvala’s clients at the time she entered into the Morrison
Land deal.
(a) Business Transaction
[9,10] Generally speaking, any “‘commercial activity
engaged in for a profit’” will constitute a business transac-
tion for purposes of the disciplinary provisions that prohibit
an attorney from entering into a business transaction with a
client.19 A “business transaction” is a broad term, and it plainly
includes an agreement to purchase real property and an agree-
ment to lease real property.20
19
See Sup. Ct. Bd. of Prof ’l Ethics v. Fay, 619 N.W.2d 321, 325 (Iowa
2000).
20
See, e.g., Id. (arrangement where client leased premises owned by
attorney’s daughter, in which attorney held life estate, was business
transaction with client); In re Baer, 298 Or. 29, 688 P.2d 1324 (1984)
(real estate purchase agreement between attorney’s wife and his clients
was business transaction where purchase price was reduced in exchange
for attorney’s services); Matter of James, 452 A.2d 163 (D.C. App. 1982)
(real estate purchase agreement between attorney and clients was busi­
ness transaction).
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It is beyond dispute that the Morrison Land purchase, the
lease and option agreements, and the various related transac-
tions were all business transactions within the meaning of
DR 5-104(A) and § 3-501.8.
(b) Clients
We have already determined that Chvala actually repre-
sented Wayne and Kurt and Premier Pork with respect to the
Morrison Land, but it is important to point out that, for pur-
poses of DR 5-104(A) and § 3-501.8, the term “client” has an
even broader meaning.
[11] In the context of the disciplinary provisions governing
business transactions with clients, a client is defined as one
over whom the attorney has influence arising from a previ-
ous or current attorney-client relationship.21 Thus, a “client”
in this context means not only one with whom the attorney
has an existing attorney-client relationship, but also those who
have relied on the attorney on “‘an occasional and on-going
basis.’”22 In other words, an attorney need not have an open
active case with a client in order to be subject to the restric-
tions of DR 5-104(A) and § 3-501.8, because otherwise “‘the
attorney would be free to use the rapport and confidence . . .
developed with [the] client to persuade the . . . client to do
things that would otherwise be prohibited by [the rules].’”23 As
the Supreme Court of Arizona has explained:
[I]n attorney-client business ventures, an attorney is
deemed to be dealing with a client when “it may fairly
be said that because of other transactions an ordinary
person would look to the lawyer as a protector rather than
as an adversary.” . . . We recognize[] that in applying
21
Bd. of Prof. Ethics and Cond. v. Sikma, 533 N.W.2d 532 (Iowa 1995). See,
also, Matter of Discipline of Martin, 506 N.W.2d 101 (S.D. 1993); Matter
of Neville, 147 Ariz. 106, 708 P.2d 1297 (1985); Matter of Nichols, 95 N.J.
126, 469 A.2d 494 (1984).
22
See Fay, supra note 19, 619 N.W.2d at 325.
23
In re Schenck, 345 Or. 350, 363, 194 P.3d 804, 812 (2008).
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the disciplinary rules we define[] “client” in very broad
terms, but we conclude[] that our obligation to police
the profession and protect the public interest permit[s]
no less.24
We agree with this reasoning and emphasize that it applies
whether one is defining a “client” for purposes of DR 5-104(A)
or its successor, § 3-501.8.
Here, the record shows that when the purchase of and lease
of the half section of the Morrison Land was negotiated in
January 2003, Chvala had already established an ongoing
attorney-client relationship with Wayne and Kurt. She had
regularly been advising them on legal matters, including land
and business transactions, for approximately 7 years, and it is
clear from their conduct that the Kaup brothers viewed Chvala
as a protector rather than an adversary.
We thus conclude that, at the inception of the Morrison Land
deal in January 2003, Wayne and Kurt were Chvala’s clients
for purposes of both DR 5-104(A) and its successor, § 3-501.8.
(c) DR 5-104(A)
The disciplinary rules governing business transactions with
clients are designed to address the concern that an attorney’s
legal skill and training, together with the relationship of trust
and confidence between lawyer and client, may create the
possibility of overreaching when the lawyer participates in
a business transaction with a client.25 Stated differently, the
concern is that “the lawyer may be tempted to subordinate the
interests of the client to the lawyer’s own anticipated pecuni-
ary gain.”26
[12] To establish a violation of DR 5-104(A), it is neces-
sary to show that (1) the attorney and the client had differing
interests in the transaction, (2) the client expected the lawyer
to exercise his or her professional judgment for the protection
24
Matter of Pappas, 159 Ariz. 516, 522, 768 P.2d 1161, 1167 (1988).
25
See § 3-501.8, comment 1.
26
Canon 5, EC 5-4, of the Code of Professional Responsibility.
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of the client, and (3) the client consented to the transaction
without full disclosure.27
(i) Differing Interests
[13-15] Differing interests are interests that are conflicting,
inconsistent, diverse, or otherwise discordant.28 Historically,
in the disciplinary context, the term “‘differing interests’” has
been broadly defined to include any interest adversely affect-
ing either the lawyer’s judgment on behalf of a client or the
lawyer’s loyalty to a client.29 In this respect, it is fundamental
that the interests of a purchaser in a transaction are directly
contradictory to the interests of the seller in the transaction.30
Similarly, the competing interests of lessor and lessee necessar-
ily present differing interests under DR 5-104(A).31
Regarding the Morrison Land, Chvala’s interests clearly dif-
fered from the Kaup brothers’ interests. Because Chvala and
Gary purchased the Morrison Land as an investment, Chvala’s
financial interest in the property, like Gary’s, was that of an
owner and lessor. Because Wayne and Kurt’s interest in the
Morrison Land was that of lessees with an exclusive option to
purchase the land at the end of the lease term, Chvala’s inter-
ests directly conflicted with the interests of Wayne and Kurt.
(ii) Professional Judgment Expected
[16,17] The nature of the transaction itself can show that the
client expected the lawyer to exercise professional judgment
for his or her protection.32 So, too, can the prior relationship of
the attorney and the client.33 As a general matter, “‘it is natural
27
State ex rel. NSBA v. Thor, 237 Neb. 734, 467 N.W.2d 666 (1991).
28
Id., citing Canon 5, EC 5-14, of the Code of Professional Responsibility.
29
David J. Beck, Transactions with Clients, 43 Baylor L. Rev. 149, 152
(1991).
30
See Fay, supra note 19.
31
See id.
32
See id. See, also, Thor, supra note 27.
33
Matter of Pappas, supra note 24.
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and proper for a client with a longstanding business relation-
ship with a lawyer to feel that the lawyer is to be trusted, will
not act unfairly, and will protect him against danger.’”34
Here, Wayne and Kurt had been Chvala’s clients for
approximately 7 years at the time the Morrison Land deal was
entered into, and the record shows they trusted and respected
her. The record also shows Wayne and Kurt expected Chvala
to treat them fairly in the Morrison Land deal based on their
established attorney-client relationship and her familiarity
with their business goals. They approached her as an investor
in the Morrison Land, and they relied on her advice as to the
best way to structure the deal and the rent arrangements. They
also relied on her to draft the necessary legal documents to
help them accomplish their business goal of ultimately own-
ing the Morrison Land. The Kaup brothers later expressed
their gratitude for Chvala’s investment on their behalf in a
2005 letter:
It has been a great pleasure working with you. Words can
not explain how proud we are of this property and THANK
YOU will never be adequate for investing your money in
this real estate for us. The acquisition of this property has
provided a solid income base to our operation.
We find clear and convincing evidence that Wayne and Kurt
expected Chvala to exercise her professional judgment for their
protection when they entered into the Morrison Land deal.
(iii) No Full Disclosure
[18] Because Chvala entered into a business deal with cli-
ents when her interests differed from theirs and the clients
expected her to exercise her professional judgment for their
protection, the ultimate question is whether she provided the
full disclosure required by DR 5-104(A). A full disclosure
34
Id., 159 Ariz. at 523, 768 P.2d at 1168. Accord In re Montgomery, 292 Or.
796, 802, 643 P.2d 338, 341 (1982) (recognizing “[i]n many situations the
client would not be dealing with the lawyer but for the client’s trust and
confidence in the lawyer born of past associations”).
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requires both that the client is advised there is a conflict of
interest and that the client is informed of the possible areas this
conflict of interest may affect.35
[19] A key part of a full disclosure is explaining to the client
any effect the conflict may have on the exercise of the attor-
ney’s professional judgment.36 In other words, full disclosure
means explaining the nature of the conflict presented by the
attorney’s role in the business transaction, and also explaining
to the client why he or she would benefit from independent
counsel.37 This is so because a client must be able to expect
“unfettered independence of professional judgment of a lawyer
whose loyalty to that person is total.”38
[20] Thus, when a full disclosure is required under
DR 5-104(A), it must include a clear explanation of the dif-
fering interests between the attorney and the client, a detailed
explanation of the risks and disadvantages to the client as a
result of those differing interests, and an explanation of the
advantages of seeking independent legal advice.39
For the sake of completeness, we note the nature of the
required disclosure is similar under both DR 5-104(A) and the
successor rule, § 3-501.8, even though, as we discuss later,
§ 3-501.8(2) contains the additional requirement that the cli-
ent’s informed consent must be in writing. The comments to
§ 3-501.8 explain when a disclosure is required:
[T]he lawyer must disclose the risks associated with the
lawyer’s dual role as both legal adviser and participant
in the transaction, such as the risk that the lawyer will
structure the transaction or give legal advice in a way that
favors the lawyer’s interests at the expense of the client.40
35
Thor, supra note 27.
36
See id.
37
See Fay, supra note 19.
38
Id., 619 N.W.2d at 326.
39
See Beck, Transactions with Clients, supra note 29.
40
§ 3-501.8, comment 3.
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Chvala’s conduct was governed by DR 5-104(A) at the time
she entered into the Morrison Land deal with the Kaup broth-
ers, and on this record, we find she failed to provide the full
disclosure required by that rule before entering into the busi-
ness transaction, or at any time thereafter.
a. Disclaimer Is Not Full Disclosure
Chvala claims that during the January 12, 2003, meeting
when the key details of the Morrison Land deal were nego-
tiated, she told Wayne and Kurt she “[could not] represent
[them] in any capacity” because her husband was going to
buy the Morrison Land and “God willing, he’s always going
to be my husband.” Chvala contends this statement satisfied
her ethical obligation under DR 5-104(A). We disagree, for
two reasons.
[21] First, the referee did not find Chvala’s testimony about
this statement to be credible, and instead, the referee concluded
Chvala made no such statement during the January 12, 2003,
meeting. But even if we were to accept Chvala’s testimony that
she expressly told the Kaup brothers she could not represent
them because her husband was going to be involved, such a
statement, without more, would have been inadequate as a
matter of law to satisfy DR 5-104(A). At best, Chvala’s state-
ment was an attempt to disclaim an attorney-client relation-
ship with the Kaup brothers. But the full disclosure required
by DR 5-104(A) is not satisfied by a mere disclaimer of an
attorney-client relationship.
[22] When a lawyer enters into a business transaction with
a client that falls within DR 5-104(A), it is not enough for the
lawyer to merely tell the client “I cannot represent you in this
transaction.” DR 5-104(A) is designed to address the concern
that an attorney’s legal skill and training, together with the
relationship of trust and confidence between the lawyer and
client, create the possibility of overreaching when the lawyer
participates in a business transaction with a client. This con-
cern exists whether or not the attorney actually provides legal
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advice or services to the client in the business transaction.41
And because of this concern, the full disclosure required by
DR 5-104(A) is substantial. It generally requires the attorney
to give the client the kind of advice the client would have
received if the transaction were with a stranger.42
The record shows that at no time during the January 12,
2003, meeting did Chvala advise Wayne and Kurt of the signif-
icant financial investment she would be making in the business
transaction. Nor did she explain how that conflict of interest
might affect the exercise of her professional judgment on their
behalf in terms of structuring the deal, preparing the legal doc-
uments to facilitate the deal, or assisting them in accomplishing
their business goals with respect to the Morrison Land. Nor did
Chvala expressly advise her clients to seek independent legal
advice before they agreed to the terms of the deal or explain to
them why that would be advantageous to them. As such, even
if we were to find credible Chvala’s testimony that she made
a disclaimer during the negotiations on January 12, the dis-
claimer she claims to have made was not sufficient to comply
with DR 5-104(A). Because the Kaup brothers consented to
the Morrison Land deal without the full disclosure required by
DR 5-104(A), Chvala violated this disciplinary provision.
And for the sake of completeness, we also find that Chvala
did not, at any time after entering into the Morrison Land deal,
make the full disclosure required by DR 5-104(A). One of
Chvala’s primary arguments is that language in paragraph 21
41
See, e.g., Sikma, supra note 21 (DR 5-104(A) not limited to situations
where attorney formally acting as counsel in business transaction); In
re Neville, supra note 21 (applicability of DR 5-104(A) not limited to
situations in which lawyer represents client in same transaction in which
interests differ).
42
Id. See, also, 7A C.J.S. Attorney & Client § 354 at 398 (2015) (“[w]here
an attorney enters into a business arrangement with a client, he or she must
make it manifest that he or she gave to his or her client all that reasonable
advice against himself or herself that he or she would have given him or
her against a third person”).
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of the lease agreement satisfied DR 5-104(A). We address that
argument next, and we find it meritless.
b. Paragraph 21 in Lease Agreement
Paragraph 21 contained language stating that Chvala repre-
sented both Gary and the Kaup brothers in unrelated matters
“in the past and presently” and was “not acting as an attorney
for either party to this contract.” There was also language stat-
ing that by signing the agreement, both parties acknowledged
they “had an opportunity to have an attorney of their choos-
ing review [the] Lease” and they were signing it voluntarily
without relying on advice from Chvala. Chvala claims this
language satisfied DR 5-104(A), but we disagree. The dis-
claimer in paragraph 21 came too late, and said too little, to
satisfy the rule.
[23] To be effective, the full disclosure required by
DR 5-104(A) must be made before the client consents to the
business transaction.43 The lease agreement containing para-
graph 21 was not executed until approximately April 7, 2003.
By that point, several months had passed since the Kaup broth-
ers had consented to the material terms of the Morrison Land
deal and significant portions of that business transaction had
already been completed.
The full disclosure required by DR 5-104(A) needed to
occur before the essential terms of the Morrison Land deal
were agreed to, before Wayne and Kurt assigned their rights
under the purchase agreement to Gary, and before the half
section of the Morrison Land was sold to Gary. There is no
question on this record that Wayne and Kurt’s consent to the
Morrison Land deal was given without the benefit of the full
disclosure required by DR 5-104(A).
Moreover, even if the disclaimer in paragraph 21 had been
given to the Kaup brothers before they consented to the
43
See Attorney Disciplinary Board v. Hamer, 915 N.W.2d 302 (Iowa 2018)
(because record did not show attorney made full disclosure to client before
client consented to transaction, violation of DR 5-104(A) established).
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Morrison Land deal, the language of that disclaimer would
have been insufficient as a matter of law to comply with
DR 5-104(A). The language purported to disclaim an attorney-
client relationship, but it did not advise Wayne and Kurt of the
nature of Chvala’s financial interest in the Morrison Land or
explain the role she would play in the business deal. Nor did it
explain how Chvala’s conflict of interest might affect the exer-
cise of her professional judgment in drafting the terms of the
lease and option agreements, or in the decisions she may make
as the lessor during the term of the lease. And nothing in para-
graph 21 advised the clients to seek independent legal advice
or explained why that would be advantageous. Because of this,
paragraph 21 was insufficient to provide the “full disclosure”
required by DR 5-104(A).
We find clear and convincing evidence that Chvala violated
DR 5-104(A) by entering into the Morrison Land deal with
Wayne and Kurt without first obtaining their consent after a
full disclosure. Because Chvala violated DR 5-104(A), she also
violated her oath as an attorney.44
(iv) Additional Violations
of DR 5-104(A)
The referee found three additional violations of DR 5-104(A).
Specifically, he found Chvala committed additional violations:
(1) in November 2003, when she modified the rent arrange-
ment from a triple-net arrangement to a modified crop-share
arrangement; (2) in December 2003, when ownership of the
Morrison Land was transferred from Gary to TTC Enterprises;
and (3) in April 2005, when TTC Enterprises transferred own-
ership of 5 acres of Morrison Land and granted a 10-year
manure easement to Premier Pork, all without providing full
disclosure.
From a disciplinary standpoint, it is immaterial whether
Chvala’s conduct in modifying the Morrison Land deal is
analyzed as four separate business transactions with clients or
44
See Neb. Rev. Stat. § 7-104 (Reissue 2012).
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whether her conduct is instead characterized as ongoing evi-
dence of an impermissible business transaction to which the
clients never consented after full disclosure. Either way, the
record contains clear and convincing evidence that from and
after January 12, 2003, when Chvala entered into the Morrison
Land deal with Wayne and Kurt, she and her clients had dif-
fering interests in the deal, her clients expected her to exercise
her professional judgment for their protection, and her clients
consented to the original business transaction, and to all sub-
sequent modifications of that business transaction, without the
full disclosure required by DR 5-104(A).
(d) § 3-501.8
Chvala was also charged with violating § 3-501.8, the suc-
cessor to DR 5-104(A). The referee found Chvala did not vio-
late § 3-501.8(a), but did violate § 3-501.8(b). We reach the
same conclusion on de novo review.
(i) § 3-501.8(a)
Section 3-501.8(a) provides: “A lawyer shall not enter into
a business transaction with a client or knowingly acquire an
ownership, possessory, security or other pecuniary interest
adverse to a client,” unless certain conditions are met. The
referee found that Chvala did not “enter into” any new busi-
ness transactions with the Kaup brothers after September 1,
2005, and thus concluded that § 3-501.8(a) was not violated.
Counsel for Discipline has not taken exception to this finding,
and we agree the record does not show that Chvala entered into
any new or additional business transactions with clients after
September 1, 2005. However, as we discuss below, her contin-
ued participation in an impermissible business transaction with
clients resulted in other disciplinary violations.
(ii) § 3-501.8(b)
Section 3-501.8(b) provides: “A lawyer shall not use infor-
mation relating to representation of a client to the disadvan-
tage of the client unless the client gives informed consent,
except as permitted or required by these Rules.” Comments
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to the rule explain its underpinnings and provide some practi-
cal examples:
Use of information relating to the representation to the
disadvantage of the client violates the lawyer’s duty of
loyalty. [Section 3-501.8(b)] applies when the information
is used to benefit either the lawyer or a third person, such
as another client or business associate of the lawyer. For
example, if a lawyer learns that a client intends to pur-
chase and develop several parcels of land, the lawyer may
not use that information to purchase one of the parcels in
competition with the client or to recommend that another
client make such a purchase.45
The referee found Chvala violated § 3-501.8(b) by “inten-
tionally lull[ing] the Kaups into believing they had exercised
the option so that the option deadline would pass.” Specifically,
the referee found:
[Chvala] knew everything about the Kaups’ farming and
hog finishing operations. She knew as a result of her prior
representation that the Kaups had structured their busi-
nesses around their ultimate ownership of the entire sec-
tion of the Morrison Land. She knew they had borrowed
substantial sums to build and develop the hog finishing
buildings and were dependent on her half-section to make
the entire operation financially feasible. She knew that
the Kaups would have to meet her financial demands or
risk losing their entire farming and livestock business.
[Chvala] used information relating to her representation
of the Kaups to their disadvantage, and the Kaups never
gave her informed consent to do so.
On de novo review, we agree there is clear and convincing
evidence that in 2012, Chvala used information acquired dur-
ing her representation of the Kaup brothers and their entity
Premier Pork in a way that disadvantaged those clients. She
knew the Kaup brothers had invested significant sums in
45
§ 3-501.8, comment 5.
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developing the 10 acres of Morrison Land they already owned,
and she knew that ownership of the remaining half section
of Morrison Land owned by TTC Enterprises was integral to
the success of their business model. She also knew the Kaup
brothers had the ability to pay a premium for the property and
likely would do so rather than risk losing their investment.
And she used this information to secure a personal financial
benefit for herself, her husband, and their corporation. In
doing so, she violated § 3-501.8(b), and because she violated
that rule, she also violated her oath as an attorney as set out
in § 7-104.
3. Chvala Represented Clients
With Differing Interests
Chvala was also charged with violating both Canon 5,
DR 5-105, of the Code of Professional Responsibility, and
Neb. Ct. R. of Prof. Cond. § 3-501.7 (rev. 2019) by repre-
senting clients with differing or conflicting interests without
obtaining informed consent. We have already determined that
Chvala simultaneously represented the owners-lessors and the
lessees of the Morrison Land. And we agree with the referee
that this representation violated both DR 5-105 and § 3-501.7.
We address each violation in turn.
(a) DR 5-105
DR 5-105 is entitled “Refusing to Accept or Continue
Employment if the Interests of Another Client May Impair the
Independent Professional Judgment of the Lawyer.” DR 5-105
governed Chvala’s conduct before September 1, 2005, and pro-
vides in part:
(A) A lawyer shall decline proffered employment if
the exercise of the lawyer’s independent professional
judgment in behalf of a client will be or is likely to be
adversely affected by the acceptance of the proffered
employment, or if it would be likely to involve the lawyer
in representing differing interests, except to the extent
permitted under DR 5-105(C).
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(B) A lawyer shall not continue multiple employment
if the exercise of his or her independent professional
judgment in behalf of a client will be or is likely to
be adversely affected by the lawyer’s representation of
another client, or if it would be likely to involve the law-
yer in representing differing interests, except to the extent
permitted under DR 5-105(C).
(C) In the situations covered by DR 5-105(A) and (B),
a lawyer may represent multiple clients if it is obvious
that the lawyer can adequately represent the interest of
each and if each consents to the representation after full
disclosure of the possible effect of such representation on
the exercise of his or her independent professional judg-
ment on behalf of each.
(i) Chvala’s Clients Had
Differing Interests
[24,25] Under DR 5-105, a lawyer may represent several
clients whose interests are not actually or potentially differing,
but should nevertheless explain any circumstances that might
cause a client to question the lawyer’s undivided loyalty.46 And
if a lawyer is asked to undertake or continue representation of
multiple clients having potentially differing interests, “the law-
yer must weigh carefully the possibility that his or her judg-
ment may be impaired or his or her loyalty divided if he or she
accepts or continues the employment.”47
Here, for the same reasons we previously found that Chvala’s
interests as an owner-lessor actually differed from the interests
of Wayne and Kurt as lessees and prospective purchasers, we
now find that the interests of all the other owners-lessors dif-
fered from those of Wayne and Kurt, and their entity Premier
Pork. Because of these differing interests, Chvala’s simultane-
ous representation of all the owners-lessors of the Morrison
46
Canon 5, EC 5-19, of the Code of Professional Responsibility.
47
Canon 5, EC 5-15, of the Code of Professional Responsibility.
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Land, and all the lessees of the Morrison Land, was likely to
involve her in representing differing interests in the same trans-
action. Moreover, even among the lessors there were differing
interests, because one of the lessors was an entity that Chvala
owned and her husband managed, and that personal relation-
ship could adversely affect her independent professional judg-
ment on behalf of other clients. As such, Chvala was required
to comply with DR 5-105(C) and obtain informed consent from
all clients.
(ii) Chvala Did Not Obtain Her
Clients’ Informed Consent
[26] A lawyer may represent multiple clients with differing
interests if (1) it is obvious the lawyer can adequately represent
the interest of each and (2) if each client consents to the rep-
resentation after full disclosure of the possible effect of such
representation on the exercise of his or her independent profes-
sional judgment on behalf of each.48 Here, we do not address
the first of these two elements, because on this record we find
no evidence whatsoever that Chvala provided any client in the
Morrison Land transactions with the full disclosure required by
DR 5-105(C).
[27-29] Even in those instances where a lawyer is justified
in representing two or more clients having differing interests,
“it is nevertheless essential that each client be given the oppor-
tunity to evaluate his or her need for representation free from
any potential conflict and to obtain other counsel if he or she
so desires.”49 Thus, “before a lawyer may represent multiple
clients, the lawyer should explain fully to each client the impli-
cations of the common representation and should accept or
continue employment only if the clients consent.”50 And “[i]f
there are present other circumstances that might cause any of
48
DR 5-105(C).
49
Canon 5, EC 5-16, of the Code of Professional Responsibility.
50
Id.
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the multiple clients to question the undivided loyalty of the
lawyer, he or she should also advise all of the clients of those
circumstances.”51 A full disclosure under DR 5-105 requires the
attorney to not only inform the client of the attorney’s relation-
ship with other clients, but also to explain the pitfalls that may
arise in the course of the transaction that would make it desir-
able for the client to have independent counsel.52
There is no evidence that Chvala provided any client in the
Morrison Land transactions with the full disclosure required by
DR 5-105(C). We therefore agree with the referee that Chvala
violated DR 5-105. And because she violated DR 5-105, she
also violated her oath as an attorney as set out in § 7-104.
(b) § 3-501.7
Section 3-501.7 is entitled “Conflict of interest; current
clients.” Section 3-501.7 governed Chvala’s conduct after
September 1, 2005, and provides:
(a) Except as provided in paragraph (b) . . . , a lawyer
shall not represent a client if the representation involves
a concurrent conflict of interest. A concurrent conflict of
interest exists if:
(1) the representation of one client will be directly
adverse to another client; or
(2) there is a significant risk that the representation
of one or more clients will be materially limited by the
lawyer’s responsibilities to another client, a former client
or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent con-
flict of interest under paragraph (a), a lawyer may repre-
sent a client if:
(1) the lawyer reasonably believes that the lawyer will
be able to provide competent and diligent representation
to each affected client;
51
Id.
52
Supreme Court Atty. Disc. Bd. v. Clauss, 711 N.W.2d 1 (Iowa 2006).
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(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of
a claim by one client against another client represented
by the lawyer in the same litigation or other proceeding
before a tribunal; and
(4) each affected client gives informed consent, con-
firmed in writing.
We find clear and convincing evidence that from September
1, 2005, until Chvala terminated her attorney-client relation-
ship with Wayne and Kurt on March 12, 2013, she continued
to simultaneously represent all of the owners-lessors of the
Morrison Land and all of the lessees-prospective purchasers
of that land. This simultaneous representation continued even
though there was no evidence Chvala prepared additional legal
documents or offered specific legal advice pertaining to the
Morrison Land transactions after September 1, 2005.
During this time, the parties continued operating under the
lease and option agreements Chvala had prepared, and at all
relevant times, and particularly after the option period opened
in 2010, the competing and conflicting interests of Chvala’s
clients remained directly adverse to one another, amounting to
a concurrent conflict of interest under § 3-501.7(a).
[30] There is no need to analyze whether, notwithstanding
this concurrent conflict of interest, it may have been permis-
sible for Chvala to represent these competing interests under
§ 3-501.7(b)(1) through (3), because it is clear from the
record that no client was provided informed consent, confirmed
in writing, as required by § 3-501.7(b)(4). For purposes of
§ 3-501.7:
Informed consent requires that each affected client be
aware of the relevant circumstances and of the material
and reasonably foreseeable ways that the conflict could
have adverse effects on the interests of that client. . . . The
information required depends on the nature of the conflict
and the nature of the risks involved. When representation
of multiple clients in a single matter is undertaken, the
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information must include the implications of the com-
mon representation, including possible effects on loyalty,
confidentiality and the attorney-client privilege and the
advantages and risks involved.53
Here, there is no evidence that after September 1, 2005,
Chvala discussed, with any of the affected Morrison Land
clients, the ways in which her common representation of their
conflicting interests could have adverse effects on the interest
of that client, including possible effects on loyalty and confi-
dentiality. Nor is there any evidence Chvala obtained informed
consent, in writing, from any Morrison Land client. She thus
violated § 3-501.7, and because she violated that rule, she also
violated her oath as an attorney as set out in § 7-104.
4. Chvala’s Dishonesty and Deceit
(a) § 3-508.4
Chvala was charged with violating Neb. Ct. R. of Prof. Cond.
§ 3-508.4 (rev. 2016). Section 3-508.4 is entitled “Misconduct”
and provides in relevant part:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional
Conduct[,] knowingly assist or induce another to do so or
do so through the acts of another;
....
(c) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation[.]
[31,32] One of the essential eligibility requirements for
admission to the practice of law in Nebraska is the ability
to conduct oneself with a high degree of honesty, integrity,
and trustworthiness in all professional relationships and with
respect to all legal obligations.54 As such, this court “‘does not
look kindly upon acts which call into question an attorney’s
53
§ 3-501.7, comment 18 (emphasis supplied).
54
State ex rel. Counsel for Dis. v. Council, 289 Neb. 33, 853 N.W.2d 844
(2014).
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honesty and trustworthiness.’”55 Attorneys who engage in dis-
honest or deceitful conduct in their communications with cli-
ents violate § 3-508.4(c).56
The referee found that Chvala engaged in a pattern of dis-
honest and deceitful conduct regarding the Kaup brothers’
attempts to close on the sale of the half section of Morrison
Land and that she did so “for the sole purpose of enriching
herself at their expense.” Specifically, the referee found:
From at least November 2012, it was [Chvala’s] plan
to delay the Kaups from providing written notice of their
exercise of the option until after March 1, 2013. She
knew that this was her only chance of getting any of
the appreciated value of the land. [Chvala] intentionally
misled Kurt in November 2012, when she told him that
she would close the sale in December. Instead of telling
Kurt that his oral exercise of the option was insufficient,
she implied that she had no objection to closing, but
only that she couldn’t get to it until December. By her
statement, [Chvala] was able to put Kurt off for at least
a month.
....
When [Chvala] was informed by [the bank] that the
Kaups wanted to close the deal with her, [Chvala said]
she couldn’t get it done in December and it is look-
ing more toward March for a closing date. This was
[Chvala’s] critical delay tactic. Without having to talk to
Wayne or Kurt she was able to convey to them that she
55
Id. at 43, 853 N.W.2d at 852.
56
See, State ex rel. Counsel for Dis. v. Thomas, 281 Neb. 336, 799 N.W.2d
661 (2011) (attorney engaged in conduct involving dishonesty and deceit
by avoiding client calls and falsely reassuring clients to avoid admitting
client’s case had been dismissed); State ex rel. Counsel for Dis. v. Simmons,
270 Neb. 429, 703 N.W.2d 598 (2005) (attorney engaged in conduct
involving dishonesty and deceit as result of deceptive communications
with client and law enforcement about whether and where attorney was
holding client’s money).
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would get to the closing, but it wouldn’t be until March.
[The Kaup brothers] relied on [Chvala’s] statement and
thus were lulled into believing that there was no need
to contact [Chvala] in January or February because she
wasn’t going to get to it until March.
On de novo review, we agree with the referee that Chvala
was fully aware of Wayne and Kurt’s efforts to close on the
half section of the Morrison Land beginning in November
2012 and that she deliberately misrepresented her intentions
regarding such a closing. She did so in an effort to delay the
closing without alerting the Kaup brothers to the fact they had
not strictly complied with the terms of the option agreement.
It is clear from the record that Chvala and Gary intended to
strictly enforce the option terms and did not believe the Kaup
brothers had correctly exercised the option. In fact, before the
option expired, Chvala sought a legal opinion from a colleague
on whether the option was enforceable and whether it could be
exercised through oral notice rather than written notice. But
when it became clear that Wayne and Kurt were trying to pro-
ceed with a closing on the half section of the Morrison Land,
Chvala instead made statements that were designed to mislead
her clients and others into believing that she and Gary intended
to proceed with the closing, but could not do so until later.
Chvala’s statements in this regard were dishonest, deceptive,
and misrepresented her true intentions.
We note Chvala argues throughout her brief that decisions
regarding the Morrison Land, including the decision whether
to require strict compliance with the option terms, were Gary’s
decisions, not hers. In this respect, her brief contends, “Chvala
stood by her husband. His decision was to hold the Kaups to
their written Agreements. She had no right to ‘overrule’ Gary
and no right to contradict him.”57 But this argument is pre-
mised on her claim, which we have found lacks merit, that she
played no role in the negotiation and lease of the half section
57
Brief for respondent at 39.
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of the Morrison Land. And in any event, even if the decision
was Gary’s, the misrepresentations and deceitful responses
were hers.
We find clear and convincing evidence that Chvala violated
§ 3-508.4(c) by engaging in conduct involving dishonesty,
deceit, and misrepresentation regarding her intentions to close
on the sale of the Morrison Land. And because we find she vio-
lated other Nebraska Rules of Professional Conduct, we also
find clear and convincing evidence she violated § 3-508.4(a).
Further, by violating these rules, she also violated her oath as
an attorney as set out in § 7-104.
(b) § 3-501.4
Neb. Ct. R. of Prof. Cond. § 3-501.4 is entitled “Commu­
nications” and provides in relevant part:
(a) A lawyer shall:
(1) promptly inform the client of any decision or cir-
cumstance with respect to which the client’s informed
consent, as defined in Rule 1.0(e), is required by these
Rules;
....
(5) consult with the client about any relevant limita-
tion on the lawyer’s conduct when the lawyer knows that
the client expects assistance not permitted by the Rules
of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent rea-
sonably necessary to permit the client to make informed
decisions regarding the representation.
The referee found that Chvala violated § 3-501.4 in 2012
and 2013 for largely the same reasons she was found to have
engaged in deceitful and dishonest conduct under § 3-501.8,
i.e., because she “failed to communicate with Wayne and
Kurt about the limits of her representation” when she knew
they were attempting to exercise the option and proceed with
the closing.
Chvala takes exception to this finding and generally argues
that she had no ethical duty to communicate with the Kaup
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brothers regarding the sale of the half section of the Morrison
Land, because she had no attorney-client relationship with
them in that matter. We have already rejected this argument
as factually and legally incorrect. For the same reasons we
previously found that Wayne and Kurt were Chvala’s clients in
matters related to the Morrison Land for purposes of DR 5-105
and § 3-501.7, we similarly find they were Chvala’s clients
for purposes of § 3-501.4. As such, from and after September
1, 2005, Chvala was obligated to promptly inform Wayne and
Kurt of any circumstance with respect to which their informed
consent was required under the disciplinary rules, to consult
with them about any relevant limitation on Chvala’s conduct
when she knew they expected her assistance, and to explain
matters to the extent reasonably necessary to permit them to
make informed decisions regarding the representation.
As previously stated, Chvala was aware the Kaup broth-
ers were actively trying to close on the half section of the
Morrison Land, and she knew Wayne and Kurt expected her
assistance to complete the closing. Despite this knowledge,
Chvala did not contact the Kaup brothers to provide the full
disclosure she should have provided earlier, to explain the limi-
tations on her conduct, or to encourage them to seek indepen-
dent counsel on the matter before the option expired. Instead,
Chvala actively avoided their attempts to communicate with
her and deliberately frustrated their efforts to schedule a clos-
ing before the option period expired. For these reasons, we find
clear and convincing evidence that Chvala violated § 3-501.4,
and because she violated this rule, she also violated her oath as
an attorney as set out in § 7-104.
V. SANCTION
Having found by clear and convincing evidence that Chvala
violated DR 5-104(A) and DR 5-105 of the former Code of
Professional Responsibility, and §§ 3-501.4, 3-501.7, 3-501.8,
and 3-508.4 of the Nebraska Rules of Professional Conduct,
as well as her oath as an attorney as set out in § 7-104, we
turn to the question of the appropriate sanction. The referee
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recommended disbarment. Chvala takes exception to that rec-
ommendation. She argues that dismissal of the charges is
the proper outcome and that “Even A Public Reprimand Is
Too Harsh.”58
[33-35] With respect to the imposition of attorney discipline,
each attorney discipline case must be evaluated in light of its
particular facts and circumstances.59 For purposes of deter-
mining the proper discipline of an attorney, we consider the
attorney’s actions both underlying the events of the case and
throughout the proceeding, as well as any aggravating or miti-
gating factors.60 The propriety of a sanction must be considered
with reference to the sanctions imposed in prior similar cases.61
1. Relevant Factors
[36] 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
reputation of the bar as a whole, (4) the protection of the pub-
lic, (5) the attitude of the respondent generally, and (6) the
respondent’s present or future fitness to continue in the practice
of law.62
(a) Nature of Offense
In this case, Chvala committed multiple, serious viola-
tions, all of which implicate the foundational principles of
client loyalty and trust. The relationship of attorney and cli-
ent has always been recognized as one of special trust and
confidence.63 While the law does not strictly prohibit business
58
Brief for respondent at 39.
59
See Jorgenson, supra note 3.
60
Id.
61
Id.
62
Id.
63
State, ex rel. Nebraska State Bar Ass’n, v. Basye, 138 Neb. 806, 295 N.W.
816 (1941).
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transactions between an attorney and a client, it does impose
the requirement that they be characterized by full disclo-
sure and honesty.64 Here, Chvala completely disregarded those
requirements, and her clients suffered as a result.65
Chvala entered into the deal to purchase the half section of
the Morrison Land, a transaction in which her interests clearly
differed from her clients’ interests, without obtaining her cli-
ents’ consent after full disclosure. Chvala also impermissibly
represented multiple clients with directly competing interests
in multiple transactions related to the Morrison Land, without
providing full disclosure. But most egregious of all, Chvala
took advantage of her clients’ trust, misrepresented her inten-
tions in the business deal, and engaged in conduct that was
dishonest and deceitful in order to realize personal financial
gain at the expense of her clients.
[37] Moreover, although all of the violations stemmed from
the same prohibited business transaction with clients, the viola-
tions were neither technical nor isolated. Instead, the prohibited
business transaction continued for a period of 10 years and the
resulting ethical violations were serious and ongoing. Chvala’s
failure to carefully follow the disciplinary rules when enter-
ing into that business transaction, and her decision to remain
in that business transaction for the next 10 years and provide
legal services to all participants in that matter, resulted in
cumulative acts of misconduct under the Nebraska disciplinary
code and rules. Cumulative acts of attorney misconduct are dis-
tinguishable from isolated incidents, therefore justifying more
serious sanctions.66
(b) Need for Deterring Others
This case provides a textbook example of the ethical mine-
field that is laid when an attorney enters into a business
64
See id.
65
See id.
66
State ex rel. Counsel for Dis. v. Trembly, 300 Neb. 195, 912 N.W.2d 764
(2018).
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transaction with clients whose interests are adverse, without
providing the full disclosure required by the ethical rules.
When considering the deterrence factor, the referee observed:
This is a case in which long-standing clients relied
on their attorney to treat them fairly and honestly. Many
lawyers, especially in rural areas, can relate to [the] type
of practice [Chvala] had where there are close profes-
sional and personal relationships with clients. [Chvala]
had a casual attitude toward her clients who trusted her
in all respects. Others, especially those in similar types
of practice, must be deterred from the kind of misconduct
[Chvala] engaged in.
We agree there is a strong need to deter other attorneys from
taking a casual approach to compliance with the disciplinary
rules that govern business transactions with clients. Similarly,
there is a strong need to deter lawyers from taking a relaxed
approach to representing multiple clients with differing inter-
ests in the same transaction. Chvala argues that “‘[c]onflicts
of interest are a routine part of practice in rural Nebraska,’”67
and we do not doubt that reality. But it underscores, rather
than excuses, a lawyer’s responsibility to carefully monitor
and fully disclose any conflicts of interest before proceeding
further. Here, Chvala paid only lip service to some conflicts of
interest and ignored others altogether.
Finally, we must send a strong message that taking advan-
tage of a client’s trust for personal gain is an egregious viola-
tion of the disciplinary rules and one that must be strongly
deterred.
(c) Reputation of Bar
[38,39] Violations of client trust and loyalty, particularly
when they result in personal financial gain to the attorney,
harm the reputation of the entire legal profession by undermin-
ing public confidence and trust in attorneys, in the courts, and
67
Brief for respondent at 33.
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in the legal system generally.68 There is a need to preserve the
public trust and confidence in members of the bar.69 Among
the major considerations in determining whether a lawyer
should be disciplined is maintenance of the highest trust and
confidence essential to the attorney-client relationship.70 As a
profession, the bar continuously strives to build and safeguard
such trust and confidence.71
Despite the fact that Chvala has been a highly respected
member of the bar for more than 30 years, her misconduct in
this case was egregious and ongoing, and her violations of client
trust and loyalty resulted in significant financial consequences
and served to undermine confidence in the legal profession.
(d) Protection of Public
[40] The goal of attorney discipline proceedings is not as
much punishment as a determination of whether it is in the
public interest to allow an attorney to keep practicing law.72
Providing for the protection of the public requires the imposi-
tion of an adequate sanction to maintain public confidence in
the bar.73
When considering this factor, the referee remarked:
Part of what makes this case particularly tragic, in
addition to the great loss to Wayne and Kurt . . . , is that
[Chvala] enjoyed a sterling public reputation as reflected
by the letters of reference and commendation from a wide
variety of people, including fellow lawyers, members
of the community, students, philanthropists and people
who benefitted from [Chvala’s] charitable giving and
68
See Nimmer, supra note 1.
69
State ex rel. Counsel for Dis. v. Cording, 285 Neb. 146, 825 N.W.2d 792
(2013).
70
Id.
71
Id.
72
Nimmer, supra note 1.
73
Id.
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civic involvement. Those positives are outweighed by
the need to protect the public from being harmed by
the most skilled and talented of lawyers who are held
in high esteem by the public and completely trusted by
their clients.
The record confirms that Chvala is held in high regard as
both a skilled lawyer and a community leader. We agree that
her reputation and contributions to the legal profession are
mitigating factors in this disciplinary action. But they do not
outweigh the aggravating factor that, in the Morrison Land
matter, Chvala ultimately used her legal skills and reputation
to take advantage of the loyalty and trust of her clients for her
personal gain. As a result, her moral fitness to engage in the
practice of law is implicated.74
(e) Attitude of Respondent
Chvala initially self-reported to the Counsel for Discipline,
and this is a mitigating factor we consider. But we cannot over-
look the aggravating factor that during the evidentiary hearing,
Chvala displayed an attitude of defiance and avoidance and
showed no remorse for her misconduct. We also find very
troubling the fact that the referee found some of Chvala’s testi-
mony to be “implausible and not credible” and expressly stated
that “[t]hroughout these proceedings” Chvala “testified falsely,
and refused to accept responsibility for her actions.” Our de
novo review of the record supports these findings, and we see
no reason to discount the referee’s finding that Chvala’s “lack
of credibility in these proceedings [was] egregious.”
(f) Present or Future Fitness to Practice Law
The record shows Chvala is a highly capable and successful
lawyer. It also shows that she consistently either disregarded
or materially misconstrued the ethical rules that govern enter-
ing into a business transaction with clients and representing
74
See Basye, supra note 63.
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multiple clients in the same transaction. Chvala adamantly
denied having an attorney-client relationship with any of the
people or entities involved in the Morrison Land transactions,
despite overwhelming evidence to the contrary.
We are particularly troubled by Chvala’s repeated efforts
to deny involvement in and avoid responsibility for prepar-
ing the deeds, leases, option agreements, and easements that
governed the various Morrison Land transactions. Her testi-
mony in that regard was evasive, and it evolved to meet the
exigency of the questioning. It may have been an inconvenient
truth that she was the lawyer who prepared all of the relevant
legal documents for all of the parties involved in the Morrison
Land transactions, but her reluctance to admit that truth and
take full responsibility as a supervising lawyer demonstrates
an inability and an unwillingness to comply with disciplinary
rules governing attorneys and calls into question her fitness to
practice law.
2. Comparison of Similar Cases
Each attorney disciplinary proceeding is unique, but the pro-
priety of a sanction must be considered with reference to the
sanctions this court has imposed in prior similar cases.75 We
have reviewed our case law and have found no prior cases that
involve disciplinary violations relating to entering into busi-
ness transactions with clients and representing multiple clients
with differing interests in that transaction, as well as conduct
involving deceit and dishonesty and failure to communicate.
In that respect, this case stands alone. But we find guidance in
several prior cases where lawyers have entered into improper
business transactions with clients and/or have engaged in mis-
conduct involving deceit and dishonesty.
[41] In State ex rel. NSBA v. Thor,76 clients in financial dif-
ficulty hired an attorney. The attorney advised them to file
75
Jorgenson, supra note 3.
76
Thor, supra note 27.
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bankruptcy, and he encouraged them to list their only major
asset, some farmland, with a realty company that was both a
client of the attorney and was owned by the attorney’s father.
The attorney then used information he learned during his repre-
sentation of those clients to purchase the farmland for less than
an offer made by a disinterested third party. In the course of
doing so, he actively mislead his clients and failed to disclose
his conflict of interest in the land purchase. We found the attor-
ney had entered into a business relationship with his clients
without making full disclosure and had engaged in misconduct
and deceit. In considering the appropriate discipline, we noted
the conduct had “brought doubt into the minds of many as to
the competence of the legal profession to represent a client’s
best interests,”77 and we concluded the violation was therefore
very serious. We noted, however, that the attorney had other-
wise performed competently, even for these clients, and had
exhibited great remorse for his conduct. We ultimately ordered
the attorney suspended for 1 year.
In State ex rel. NSBA v. Miller,78 an attorney was hired by
a woman who was both a former employee and a former cli-
ent to obtain a refund of an excess insurance payment. The
attorney orally agreed to charge a 20-percent contingent fee,
but the written fee arrangement subsequently executed by the
client stated the attorney would be paid one-third of the amount
obtained if settlement was reached before filing suit and 40
percent of the amount obtained after suit was filed. Despite this
express language in the written agreement, the attorney assured
his client that the oral agreement of a 20-percent contingent fee
was binding.
The attorney spent approximately 6 hours attempting to
recover the overpayment. Then, the party holding the funds
contacted the attorney and notified him it intended to return
the overpayment. Despite this assurance, the attorney filed suit
77
Id., 237 Neb. at 752, 467 N.W.2d at 678.
78
State ex rel. NSBA v. Miller, 258 Neb. 181, 602 N.W.2d 486 (1999).
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against that party approximately 2 hours later. And after the
suit was settled and the overpayment was returned, the attorney
attempted to collect 40 percent of the settlement from his cli-
ent, relying on the written fee agreement. The total fee charged
was $96,000.
We found the attorney, among other things, had engaged in
conduct involving fraud and deceit, both with respect to his
client and throughout the disciplinary proceedings. We noted
that he had previously represented the client and that thus,
she had significant trust in him. We emphasized that although
the evidence was to the contrary, the attorney continued to
insist he had done nothing wrong. We also noted this was the
attorney’s second disciplinary proceeding. In the prior pro-
ceeding, the attorney had been suspended from the practice of
law for a period of 2 years. Because of the cumulative acts of
attorney misconduct and the inexcusable and egregious nature
of the charges, we concluded disbarment was the appropri-
ate sanction.
[42] In State ex rel. Counsel for Dis. v. Crawford,79 the
alleged disciplinary violations were not analogous to the
instant case, as the attorney was being charged with client
neglect. The case is notable, however, for the fact that coun-
sel was “antagonistic, evasive, and untruthful throughout the
investigation and the disciplinary proceeding.”80 We were par-
ticularly concerned with counsel’s lack of veracity during the
proceedings, noting:
This court does not look kindly upon acts which call
into question an attorney’s honesty and trustworthiness.
The essential eligibility requirements for admission to
the practice of law in Nebraska include “[t]he ability to
conduct oneself with a high degree of honesty, integ-
rity, and trustworthiness in all professional relationships
79
State ex rel. Counsel for Dis. v. Crawford, 285 Neb. 321, 827 N.W.2d 214
(2013).
80
Id. at 329, 827 N.W.2d at 223.
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and with respect to all legal obligations.” With or with-
out misappropriation, acts of dishonesty can result in
disbarment.81
3. Sanction of Disbarment
Here, Chvala entered into a business transaction with estab-
lished clients without providing the full disclosure required
by the disciplinary rules. Thereafter, she stayed in the busi-
ness deal as an investor, while simultaneously providing legal
advice and services to all of the lessors and lessees of the
Morrison Land, despite their differing interests. Chvala paid
only passing lip service to the full disclosure requirements, and
she never provided the full disclosure required by the disci-
plinary rules. Finally, and most egregiously, Chvala capitalized
on her clients’ trust by deliberately deceiving and misleading
them into believing a closing would take place without any
further action on their part, in order to obtain personal finan-
cial gain.
When confronted with her wrongdoing, Chvala insisted she
had not entered into the business transaction at all, insisted
the Kaup brothers were not clients, and denied providing
any legal representation regarding the Morrison Land. She
has refused to acknowledge any misconduct whatsoever, has
shown no remorse for her conduct, and has presented testi-
mony that was at best implausible and, according to the ref-
eree, patently false.
Despite an otherwise unblemished legal career, Chvala’s
misconduct was egregious and requires a strong disciplinary
response from this court. It is therefore the judgment of this
court that the appropriate sanction for Chvala’s violations
is disbarment.
VI. CONCLUSION
Given clear and convincing evidence that Chvala vio-
lated Nebraska’s Code of Professional Responsibility and the
81
Id. at 367, 827 N.W.2d at 246-47.
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Nebraska Rules of Professional Conduct, as well as her oath
of office, it is the judgment of this court that she be disbarred
from the practice of law in the State of Nebraska, effective
immediately. She is directed to comply with Neb. Ct. R.
§ 3-316 (rev. 2014), and upon failure to do so, she shall be
subject to punishment for contempt of this court. She may
not apply for reinstatement for a period of at least 5 years82
and must successfully complete the Multistate Professional
Responsibility Examination prior to submitting any application
for reinstatement.
Judgment of disbarment.
Cassel, J., not participating.
82
See Neb. Ct. R. § 3-310(T) (rev. 2019).