State ex rel. Counsel for Dis. v. Nimmer , 300 Neb. 906 ( 2018 )


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    STATE EX REL. COUNSEL FOR DIS. v. NIMMER
    Cite as 
    300 Neb. 906
    State     of   Nebraska ex rel. Counsel for Discipline
    of the     Nebraska Supreme Court, relator,
    v. John C. Nimmer, respondent.
    ___ N.W.2d ___
    Filed August 31, 2018.   No. S-17-111.
    1.	 Disciplinary Proceedings: Appeal and Error. Because attorney disci-
    pline cases are original proceedings before the Nebraska Supreme Court,
    the court reviews a referee’s recommendations de novo on the record,
    reaching a conclusion independent of the referee’s findings.
    2.	 ____: ____. In an attorney discipline proceeding, when a party takes
    exception to the referee’s report, 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.
    3.	 Disciplinary Proceedings. Client trust accounts, in particular, are
    always open to review by the Counsel for Discipline.
    4.	 Disciplinary Proceedings: Rules of the Supreme Court: Time. An
    attorney’s failure to preserve client trust account records does not pro-
    vide an affirmative defense to charges of impermissible commingling,
    nor does the 5-year preservation rule under Neb. Ct. R. of Prof. Cond.
    § 3-501.15 constrain or limit the Counsel for Discipline’s investigative
    or prosecutorial duties.
    5.	 Disciplinary Proceedings: Time. There is no time limitation on the
    acts or omissions that can give rise to attorney discipline for violating
    the Nebraska Rules of Professional Conduct, the attorney’s oath, or the
    provisions of Nebraska’s disciplinary rules.
    6.	 Disciplinary Proceedings: Attorneys at Law. Attorneys licensed to
    practice law in the State of Nebraska agree to operate under the supervi-
    sion of the office of the Counsel for Discipline.
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    7.	 ____: ____. A license to practice law confers no vested right, but is a
    conditional privilege, revocable for cause.
    8.	 ____: ____. Violation of any of the ethical standards relating to the
    practice of law or any conduct of an attorney in his or her professional
    capacity which tends to bring reproach on the courts or the legal profes-
    sion constitutes grounds for suspension or disbarment.
    9.	 Disciplinary Proceedings. Violation of the standards set forth in
    the disciplinary rules must be established by clear and convincing
    evidence.
    10.	 Disciplinary Proceedings: Rules of the Supreme Court. Collectively,
    subsections (a) and (b) of Neb. Ct. R. of Prof. Cond. § 3-501.15 prohibit
    the commingling of client funds with an attorney’s personal funds.
    11.	 Disciplinary Proceedings. Generally speaking, an attorney violates the
    rule against commingling when the funds of the client are intermingled
    with those of the attorney in such a way that their separate identity is
    lost and they may be used by the attorney for personal expenses or sub-
    jected to the claims of the attorney’s creditors.
    12.	 Disciplinary Proceedings: Proof: Circumstantial Evidence.
    Disciplinary violations can be proved by circumstantial evidence.
    13.	 Disciplinary Proceedings: Attorneys at Law. In the context of attor-
    ney discipline cases, the Nebraska Supreme Court has repeatedly recog-
    nized the ancient maxim that ignorance of the law is no excuse. It is a
    maxim sanctioned by centuries of experience and it applies with even
    greater emphasis to an attorney at law who is expected to be learned in
    the law.
    14.	 Disciplinary Proceedings. Neither good faith nor ignorance of the rules
    prohibiting commingling client and personal funds provides a defense
    to a disciplinary charge that an attorney violated the rules against
    commingling.
    15.	 ____. 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.
    16.	 ____. Each attorney discipline case must be evaluated in light of its
    particular facts and circumstances.
    17.	 ____. 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.
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    STATE EX REL. COUNSEL FOR DIS. v. NIMMER
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    300 Neb. 906
    18.	 ____. In attorney discipline cases, the propriety of a sanction must
    be considered with reference to the sanctions imposed in prior simi-
    lar cases.
    19.	 Disciplinary Proceedings: Rules of the Supreme Court. Under Neb.
    Ct. R. § 3-304, the Nebraska Supreme Court may impose one or more
    of the following disciplinary sanctions: (1) disbarment; (2) suspension;
    (3) probation, in lieu of or subsequent to suspension; (4) censure and
    reprimand; or (5) temporary suspension.
    20.	 Disciplinary Proceedings. The Nebraska Supreme Court considers
    commingling of client funds with an attorney’s own funds to be a matter
    of gravest concern in reviewing claims of lawyer misconduct.
    21.	 ____. The goal of attorney discipline proceedings is not as much punish-
    ment as a determination of whether it is in the public interest to allow an
    attorney to keep practicing law.
    22.	 ____. Providing for the protection of the public requires the imposition
    of an adequate sanction to maintain public confidence in the bar.
    23.	 ____. An attorney’s admission of responsibility for his or her actions
    reflects positively upon his or her attitude and character and is to be
    considered in determining the appropriate discipline.
    24.	____. Because cumulative acts of attorney misconduct are distin-
    guishable from isolated incidents, they justify more serious sanctions.
    Cumulative acts of misconduct can, and often do, lead to disbarment.
    25.	 Disciplinary Proceedings: Words and Phrases. In the context of
    attorney disciplinary proceedings, misappropriation is any unauthor-
    ized use of client funds entrusted to an attorney, including not only
    stealing, but also unauthorized temporary use for the attorney’s own
    purpose, whether or not the attorney derives any personal gain or ben-
    efit therefrom.
    26.	 Disciplinary Proceedings. Lack of financial harm to clients is not a
    mitigating factor in disciplinary proceedings where an attorney has com-
    mingled client and personal funds.
    27.	 ____. Absent mitigating circumstances, disbarment is the appropriate
    discipline in cases of misappropriation or commingling of client funds.
    28.	 Disciplinary Proceedings: Presumptions. Mitigating factors may over-
    come the presumption of disbarment in misappropriation and commin-
    gling cases where they are extraordinary and substantially outweigh any
    aggravating circumstances.
    Original action. Judgment of disbarment.
    William F. Austin, Special Prosecutor, of Blake & Austin
    Law Firm, L.L.P., for relator.
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    STATE EX REL. COUNSEL FOR DIS. v. NIMMER
    Cite as 
    300 Neb. 906
    John C. Nimmer, pro se.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
    Papik, JJ., and Dobrovolny, District Judge.
    Per Curiam.
    On February 1, 2017, the Counsel for Discipline of the
    Nebraska Supreme Court filed formal charges against John
    C. Nimmer, alleging he violated Neb. Ct. R. of Prof. Cond.
    §§ 3-501.15 and 3-508.4 (rev. 2016) and his oath of office as
    an attorney licensed to practice in Nebraska1 by commingling
    personal funds with client trust account funds. This court
    appointed a referee who held an evidentiary hearing and then
    filed a report finding Nimmer had violated the disciplinary
    rules by depositing personal funds into his client trust account
    and using his client trust account to pay personal expenses. The
    referee recommended a 1-year suspension followed by a 2-year
    period of probation. Nimmer filed an exception to the referee’s
    report, challenging both the finding that he violated the disci-
    plinary rules and the recommended sanction.
    We find by clear and convincing evidence that Nimmer
    commingled client funds with personal funds, in violation of
    §§ 3-501.15 and 3-508.4 of the Nebraska Rules of Professional
    Conduct and his oath of office. Furthermore, we conclude on
    this record that the appropriate sanction for Nimmer’s miscon-
    duct is disbarment.
    I. BACKGROUND
    Nimmer was admitted to the practice of law in the State of
    Nebraska in 1993, and since that time has practiced primarily
    in Omaha and Bellevue, Nebraska. In 2004, Nimmer opened
    a client trust account at an Omaha area bank. The manner in
    which Nimmer has used that client trust account is the central
    issue in this disciplinary proceeding.
    1
    See 
    Neb. Rev. Stat. § 7-104
     (Reissue 2012).
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    STATE EX REL. COUNSEL FOR DIS. v. NIMMER
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    1. Grievance and Investigation
    In a letter dated March 11, 2016, the enforcement division
    of the U.S. Securities and Exchange Commission (SEC) noti-
    fied the Counsel for Discipline of “possible professional mis-
    conduct” by Nimmer. The SEC had subpoenaed records from
    Nimmer’s client trust account in connection with an unrelated
    investigation and reported that its “review of Nimmer’s trust
    account transactions revealed that he wrote numerous checks
    for personal expenses, ranging from rent and child support to
    dog boarding and landscaping fees.” On March 18, the Counsel
    for Discipline notified Nimmer that he was the subject of an
    investigation and provided him a copy of the grievance.2
    On June 8, 2016, the Counsel for Discipline provided Nimmer
    with copies of the bank records subpoenaed by the SEC and
    asked him to explain several checks written on his client trust
    account that did not appear to be client related. Nimmer was
    also asked to explain a $10,000 check from his mother with
    the memorandum notation “loan” which had been deposited
    into his client trust account. Nimmer declined, at the time, to
    answer the questions posed by the Counsel for Discipline.
    The Counsel for Discipline then subpoenaed Nimmer’s cli-
    ent trust account records directly from the bank. Through two
    subpoenas, records were obtained for the time period from
    January 1, 2006, through September 1, 2016. After reviewing
    these records, the Counsel for Discipline determined there were
    reasonable grounds for discipline, and thus reduced the SEC’s
    grievance to a complaint and forwarded it to the Committee on
    Inquiry of the Fourth Judicial District.3 Thereafter, the inquiry
    panel found reasonable grounds for discipline and determined
    it would be in the public’s interest to file formal charges.4
    2
    See Neb. Ct. R. § 3-309(D) (rev. 2011).
    3
    See § 3-309(G).
    4
    See § 3-309(H)(4).
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    STATE EX REL. COUNSEL FOR DIS. v. NIMMER
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    2. Formal Charges
    On February 1, 2017, the Counsel for Discipline filed for-
    mal charges against Nimmer. It alleged that between January
    2006 and February 2016, Nimmer wrote personal checks on
    his client trust account to 29 different businesses, individuals,
    and organizations. Additionally, it alleged that on December
    20, 2007, Nimmer deposited a $10,000 check from his mother
    issued to him with the notation “loan” into his client trust
    account. The formal charges alleged that by using his client
    trust account in this fashion, Nimmer commingled his per-
    sonal funds with client funds and thereby violated his oath
    of office as an attorney licensed to practice in Nebraska5 and
    § 3-501.15, which provides in part:
    (a) A lawyer shall hold property of clients or third per-
    sons that is in a lawyer’s possession in connection with a
    representation separate from the lawyer’s own property.
    Funds shall be kept in a separate account maintained
    in the state where the lawyer’s office is situated. Other
    property shall be identified as such and appropriately
    safeguarded. Complete records of such account funds
    and other property shall be kept by the lawyer and shall
    be preserved for a period of 5 years after termination of
    the representation.
    (b) A lawyer may deposit the lawyer’s own funds in a
    client trust account for the sole purpose of paying bank
    service charges on that account, but only in an amount
    necessary for that purpose.
    The formal charges also alleged Nimmer’s actions violated
    § 3-508.4, which provides in relevant part that it is professional
    misconduct for a lawyer to “violate or attempt to violate the
    Rules of Professional Conduct.”6
    5
    See § 7-104.
    6
    § 3-508.4(a).
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    STATE EX REL. COUNSEL FOR DIS. v. NIMMER
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    3. Nimmer Moves to
    Dismiss and R ecuse
    Nimmer filed a motion to dismiss the formal charges, alleg-
    ing the Counsel for Discipline “is part of the Nebraska judicial
    branch under the direct supervision of this Court, which vio-
    lates separation of powers, which violates constitutional due
    process, which in turn negates [the Counsel for Discipline]
    from having standing to have filed the Formal Charges, thereby
    constituting a lack of subject matter jurisdiction.” This court
    overruled Nimmer’s motion to dismiss as meritless.7
    Nimmer also moved to recuse the Counsel for Discipline,
    alleging he had a conflict of interest because Nimmer planned
    to call him as a necessary fact witness. We overruled his
    motion to recuse, but determined it was prudent under the cir-
    cumstances to appoint a special prosecutor.
    4. Nimmer Files A nswer and
    Second Motion to Dismiss
    After his motion to dismiss was overruled, Nimmer filed
    a verified answer to the formal charges. His answer admitted
    some of the factual allegations in the formal charges, but gen-
    erally denied that his conduct amounted to commingling in vio-
    lation of the disciplinary rules. Additionally, Nimmer’s answer
    raised several affirmative defenses which will be addressed
    later in this opinion.
    Nimmer also filed a second motion to dismiss, this time
    asking that the disciplinary proceeding be dismissed without
    prejudice due to alleged procedural errors predating the filing
    of the formal charges. This court found the motion was merit-
    less and overruled it.
    7
    See, e.g., Noffsinger v. Nebraska State Bar Assn., 
    261 Neb. 184
    , 
    622 N.W.2d 620
     (2001) (matters regarding admission, suspension, discipline
    and disbarment of attorneys rest exclusively with Nebraska Supreme
    Court; in exercising its inherent power to regulate bar, court uses Counsel
    for Discipline to investigate allegations of misconduct and to prepare, file,
    and dismiss charges of misconduct against attorneys).
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    STATE EX REL. COUNSEL FOR DIS. v. NIMMER
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    5. Nimmer Seeks to Exclude Client
    Trust Account R ecords
    Nimmer filed “Motions to Quash Subpoenas and Exclude
    Evidence,” seeking to prevent his client trust account records
    from being offered at the disciplinary hearing. He argued
    the records had been obtained improperly and suggested
    the SEC had violated federal privacy laws when it provided
    his trust account records to the Counsel for Discipline in
    connection with the grievance. Nimmer acknowledged that
    after receiving the grievance, the Counsel for Discipline
    independently subpoenaed the trust account records as part
    of the disciplinary investigation.8 Nimmer did not claim
    those subpoenas were unreasonable or oppressive,9 but argued
    he did not have an opportunity to object and thus asked
    that all records produced in response to those subpoenas be
    excluded.
    Additionally, Nimmer asked that any client trust account
    records more than 5 years old be excluded even if more
    recent records were admitted. In support, Nimmer relied on
    § 3-501.15(a), which requires attorneys to maintain complete
    records of client property for 5 years after termination of
    the representation. Nimmer claimed that because he had not
    retained any client records predating 2011, the Counsel for
    Discipline should be prevented from offering any subpoenaed
    trust account records for that period.
    The referee found no merit to Nimmer’s arguments for
    exclusion of the subpoenaed trust account records and over-
    ruled the motions.
    6. Evidentiary Hearing
    On December 4, 2017, an evidentiary hearing was held on
    the formal charges. Nimmer represented himself and was the
    only witness to testify.
    8
    See Neb. Ct. R. § 3-317(A).
    9
    See § 3-317(D).
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    (a) Exhibits
    The special prosecutor introduced, and the referee received,
    Nimmer’s client trust account records from 2006 through
    2016. Nimmer did not dispute the veracity of those records
    and instead stated, “I’ll concede every transaction in this
    exhibit is a bona fide transaction. Whatever the notations say,
    they say. . . . [T]he exhibit speaks for itself.”
    The special prosecutor also introduced, and the referee
    received, a record of a prior attorney disciplinary proceeding
    involving Nimmer. In 2013, the Counsel for Discipline alleged
    Nimmer had received $12,500 from a client to deliver “quali-
    fied investors” as advertised on his website and then failed to
    provide such services.10 Nimmer’s actions were alleged to have
    violated Neb. Ct. R. Prof. Cond. § 3-507.1 and § 3-508.4(a).11
    Nimmer entered a conditional admission to the 2013 charges
    and requested a public reprimand.12 This court accepted his
    conditional admission and issued a public reprimand.13
    (b) Nimmer’s Testimony
    As stated, at the hearing, Nimmer did not dispute the
    veracity of the client trust account records or the accuracy
    of the notations on various checks deposited into and written
    on the client trust account. For instance, Nimmer admitted
    writing numerous checks for personal expenses from his cli-
    ent trust account over the course of several years, including
    checks for rent, checks to his church, checks to his mother,
    and checks for his daughter’s summer camp. He also admitted
    his mother had given him thousands of dollars that he depos-
    ited into his client trust account. Nimmer characterized these
    deposits as “credit line[s],” rather than “loan[s]” from his
    mother, but he admitted the funds were placed into his client
    10
    State ex rel. Counsel for Dis. v. Nimmer, 
    286 Neb. 107
    , 
    834 N.W.2d 776
    (2013).
    11
    
    Id.
    12
    
    Id.
    13
    
    Id.
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    trust account and were available for his personal use “or hers,
    if she asked.”
    Nimmer also admitted that on several occasions, he trans-
    ferred funds from his personal checking account into his client
    trust account. He admitted these funds were not transferred to
    pay bank service charges and were not connected to the repre-
    sentation of any client.
    (c) Nimmer’s Affirmative
    Defenses
    While Nimmer did not vigorously contest the documentary
    evidence detailing the non-client-related funds going into and
    out of his client trust account, he did argue that this activity
    did not amount to unlawful commingling. In support of this
    contention, Nimmer advanced three basic arguments, which he
    framed as affirmative defenses. First, he argued that writing
    personal checks directly from his client trust account was not
    a violation of § 3-501.15, because it was possible he was writ-
    ing those checks on earned fees. Second, he argued § 3-501.15
    does not prohibit attorneys from depositing non-client-related
    funds into a client trust account. And third, he argued that even
    if the referee found he had violated the rules against commin-
    gling personal and client funds, he acted in “good faith” and
    thus should be exempt from discipline. He makes these same
    arguments in his briefing to this court, and we address them
    later in our analysis.
    7. R eferee’s R eport and
    R ecommendation
    On February, 13, 2018, the referee filed his written report.
    The referee found, summarized, that from January 1, 2006,
    through September 1, 2016, Nimmer impermissibly deposited
    personal funds into his client trust account in amounts more
    than necessary to pay bank service charges on that account and
    used his client trust account to pay personal expenses. It is not
    necessary to recite all of the referee’s factual findings, but the
    following are representative:
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    • On or about December 20, 2007, Nimmer deposited a $10,000
    check from his mother with the notation “‘loan’” into his cli-
    ent trust account. Nimmer admitted these funds were for his
    personal use, but were also available to pay his mother’s
    personal expenses if she asked. In that regard, Nimmer wrote
    a check from the client trust account in the amount of $4,775
    to a construction company for repairs to his mother’s house,
    and wrote several checks to his mother for a car he was pur-
    chasing from her. None of these checks or transactions were
    connected to representation of a client.
    • On or about June 25, 2013, Nimmer deposited two checks
    totaling $10,855.18 into his client trust account. The checks
    had been made payable to Nimmer’s mother, and she endorsed
    both checks over to him. Nimmer described this deposit as
    a “‘credit line’” from his mother. He admitted the funds
    were not connected to the representation of any client, but,
    rather, were intended to be used by Nimmer for his personal
    expenses if necessary.
    • On multiple occasions in 2014 and 2016, Nimmer transferred
    money from his personal checking account into his attorney
    trust account. Nimmer admitted these transfers were not to
    pay bank fees and were not in connection with any client rep-
    resentation, but he claimed the transfers were “for the benefit
    of” his daughter.
    • Nimmer wrote approximately 35 checks on his client
    trust account to his church, with notations such as “dues,”
    “Almsgiving Fund,” “dinner tickets,” and “Food for Hungry
    Funds.” Nimmer admitted the notations on the checks were
    accurate and the payments were not made in connection with
    client representation.
    • Nimmer wrote multiple checks over multiple years out of his
    client trust account to Camp St. Raphael. Nimmer admitted
    those checks were for his daughter’s summer camp and were
    not connected to any client representation.
    • Nimmer wrote approximately 20 checks on his client trust
    account payable to the landlord of his Omaha law office
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    in the amount of either $1,750, $2,000, or some multiple
    thereof. Nimmer admitted these checks were “‘most prob-
    ably’” for his rent.
    Based on these and other factual findings, the referee con-
    cluded there was clear and convincing evidence Nimmer
    violated §§ 3-501.15(a) and (b) (safekeeping property) and
    3-508.4 (misconduct), and thereby violated his oath of office
    as a licensed attorney. The referee expressly rejected all of
    Nimmer’s affirmative defenses.
    The referee also made a recommendation regarding an
    appropriate sanction. The referee analyzed each of the six fac-
    tors outlined in State ex rel. Counsel for Dis. v. Jorgenson14
    and found several aggravating factors, including that
    (1) Nimmer had been disciplined previously in 2013, (2)
    Nimmer’s misconduct in commingling client funds and per-
    sonal funds went on for nearly a decade, and (3) Nimmer
    had written “a large number of checks” for personal expenses
    on his client trust account. The referee found as a mitigat-
    ing factor that Nimmer had not “misappropriate[d] any client
    funds.” Ultimately, the referee recommended that Nimmer
    be (1) suspended from the practice of law for a period of
    1 year, (2) required to complete 6 credit hours of continu-
    ing legal education in the area of professional responsibil-
    ity focused on law office management prior to reinstate-
    ment, and (3) placed on probation for 2 years during which
    time he must practice under the supervision of a licensed
    Nebraska attorney.
    Nimmer timely filed a written exception to the referee’s
    report, the particulars of which we address below. The matter
    has been briefed and argued before this court15 and now is sub-
    mitted for our determination on the questions of which, if any,
    14
    State ex rel. Counsel for Dis. v. Jorgenson, 
    298 Neb. 855
    , 
    906 N.W.2d 43
    (2018).
    15
    See Neb. Ct. R. § 3-310(M) (rev. 2014).
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    Nebraska Rules of Professional Conduct were violated and the
    appropriate sanction for any such violation.16
    II. STANDARD OF REVIEW
    [1] Because attorney discipline cases are original proceed-
    ings before this court, we review a referee’s recommendations
    de novo on the record, reaching a conclusion independent of
    the referee’s findings.17
    III. ANALYSIS
    1. Nimmer’s Exceptions
    to R eferee’s R eport
    Nimmer’s written exceptions challenge nearly every aspect
    of the referee’s report. Consolidated and summarized, Nimmer
    takes exception to the referee’s (1) evidentiary rulings, includ-
    ing admitting the subpoenaed records of Nimmer’s client trust
    account; (2) finding clear and convincing evidence of discipli­
    nary violations; (3) rejecting Nimmer’s affirmative defenses;
    and (4) recommending a 1-year suspension.
    Nimmer’s brief addresses these exceptions as “assignments
    of error” made by the referee, but we decline to address them
    framed as such, because we do not sit in this matter as an
    appellate court reviewing the record for error. Rather, proceed-
    ings for attorney discipline are original proceedings before the
    Nebraska Supreme Court.18
    In such original proceedings, when an answer raises an issue
    of fact requiring a hearing, we refer the matter to a referee to
    16
    State ex rel. Counsel for Dis. v. Herzog, 
    281 Neb. 816
    , 
    805 N.W.2d 632
    (2011). See, also, State ex rel. Counsel for Discipline v. Gast, 
    296 Neb. 687
    ,
    696-97, 
    896 N.W.2d 583
    , 591 (2017) (“[t]he basic issues in a disciplinary
    proceeding against an attorney are whether the Nebraska Supreme Court
    should impose discipline and, if so, the appropriate discipline under the
    circumstances”).
    17
    State ex rel. Counsel for Dis. v. Trembly, ante p. 195, 
    912 N.W.2d 764
    (2018).
    18
    § 3-310(C).
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    oversee discovery and hold a hearing.19 The referee observes
    the rules of evidence, discovery, and motion practice applicable
    in civil actions in Nebraska district courts and is required to
    make a written report stating his or her findings of fact and
    recommendations.20 The referee’s report is transmitted to this
    court along with the record of proceedings,21 and if no written
    exception is taken, this court may, in its discretion, accept the
    referees’ findings as final and conclusive.22
    [2] But where, as here, a party takes exception to the ref-
    eree’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 con-
    sider 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.23 Because of this standard, Nimmer’s
    claims of errors by the referee are simply “immaterial to our
    review.”24
    We thus proceed to consider Nimmer’s exceptions, but we
    necessarily limit our consideration to the evidence properly
    admitted, and we reach our own conclusion, independent of the
    referee’s findings and recommendation, on the central ques-
    tions of whether any Nebraska Rules of Professional Conduct
    have been violated, and the appropriate sanction for any such
    violation.25
    For the sake of completeness, we also note that Nimmer’s
    brief assigns error to this court’s prior decisions overruling his
    19
    See § 3-310(J).
    20
    Id.
    21
    Id.
    22
    § 3-310(L).
    23
    Herzog, supra note 16.
    24
    Id. at 822, 805 N.W.2d at 637.
    25
    Id.
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    two motions to dismiss this disciplinary proceeding. We con-
    strue these assignments as requests for this court to exercise
    its inherent authority to reconsider those decisions,26 and we
    decline to do so.
    2. Nimmer’s Client Trust Account
    R ecords Were Properly A dmitted
    Throughout the proceedings before the referee, and in his
    briefing and oral argument before this court, Nimmer has
    repeatedly challenged the admissibility of his client trust
    account records, particularly those predating 2011. The referee
    found all of Nimmer’s arguments in this regard to be without
    merit. We do too.
    [3] With exceptions not relevant here, all lawyers admit-
    ted to practice law on active status with an office in Nebraska
    must have and maintain a client trust account in an approved
    financial institution.27 Additionally, the Counsel for Discipline
    has the broad power to “audit at any time any trust account
    required by these rules.”28 And we have recognized that client
    trust accounts, in particular, are always open to review by the
    Counsel for Discipline.29 The Counsel for Discipline has broad
    subpoena power for investigative purposes,30 and in this case,
    the Counsel for Discipline followed the appropriate procedure
    in subpoenaing Nimmer’s client trust account records.31
    Nimmer also argues that even if his client trust account
    records were properly obtained, all such records before 2011
    26
    See Houser v. American Paving Asphalt, 
    299 Neb. 1
    , 
    907 N.W.2d 16
    (2018) (appellate court has inherent power to reconsider order or ruling
    until divested of jurisdiction).
    27
    Neb. Ct. R. § 3-902.
    28
    Neb. Ct. R. § 3-906.
    29
    State ex rel. Counsel for Dis. v. Crawford, 
    285 Neb. 321
    , 
    827 N.W.2d 214
    (2013).
    30
    § 3-317(A).
    31
    § 3-317(B).
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    should nevertheless have been excluded from evidence. He
    reasons that § 3-501.15(a) requires lawyers to preserve records
    of client trust accounts “for a period of 5 years after termina-
    tion of the representation.” Nimmer maintains that in reliance
    on this rule, he did not save client subsidiary ledgers prior to
    2011; thus, he argues it would be “unfair” to allow disciplinary
    proceedings against him based on allegations of commingling
    more than 5 years ago.
    [4,5] Nimmer’s reliance on the document preservation
    requirement in § 3-501.15(a) is misplaced. An attorney’s fail-
    ure to preserve client trust account records does not provide an
    affirmative defense to charges of impermissible commingling,
    nor does the 5-year preservation rule constrain or limit the
    Counsel for Discipline’s investigative or prosecutorial duties.
    There is no time limitation on the acts or omissions that can
    give rise to attorney discipline for violating the Nebraska
    Rules of Professional Conduct, the attorney’s oath, or the pro-
    visions of Nebraska’s disciplinary rules.32
    Moreover, Nimmer repeatedly points to the document pres-
    ervation rule as the reason he is unable to adequately explain
    the personal funds going into and out of his client trust
    account. But we have difficulty with his suggestion that cli-
    ent ledgers would reveal anything of relevance, given the
    nature of the charges here. The alleged disciplinary viola-
    tions stem from Nimmer’s impermissible use of his client
    trust account as a personal checking account; such use, by
    its nature, would not have been documented in client ledgers.
    And it is telling that despite the availability of his post-2011
    client ledgers, Nimmer points to nothing in those records that
    adequately explains the violations found to have occurred dur-
    ing that timeframe.
    We conclude that all of Nimmer’s client trust account
    records from the period from 2006 through 2016 were prop-
    erly obtained by the Counsel for Discipline, were provided to
    32
    See Neb. Ct. R. § 3-303.
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    Nimmer well in advance of the hearing, were properly admit-
    ted into evidence by the referee, and are properly before this
    court for consideration.
    3. General Principles in
    Disciplinary Proceedings
    [6-9] Attorneys licensed to practice law in the State of
    Nebraska agree to operate under the supervision of the office
    of the Counsel for Discipline.33 A license to practice law con-
    fers no vested right, but is a conditional privilege, revocable
    for cause.34 Violation of any of the ethical standards relating
    to the practice of law or any conduct of an attorney in his or
    her professional capacity which tends to bring reproach on the
    courts or the legal profession constitutes grounds for suspen-
    sion or disbarment.35 Violation of those standards, which are
    set forth in the disciplinary rules, must be established by clear
    and convincing evidence.36
    4. There Is Clear and Convincing
    Evidence of Violations
    Our de novo review shows clear and convincing evidence
    that Nimmer violated § 3-501.15(a) and (b), and thereby vio-
    lated § 3-508.4(a) and his oath of office under § 7-104.
    Section 3-501.15(a) requires a lawyer to “hold property of
    clients or third persons that is in a lawyer’s possession in con-
    nection with a representation separate from the lawyer’s own
    property.” This rule requires that client “[f]unds shall be kept
    in a separate account maintained in the state where the law-
    yer’s office is situated.”
    Section 3-501.15(b) recognizes one circumstance under
    which it is permissible for an attorney to deposit his or her
    own funds into a client trust account. “A lawyer may deposit
    33
    Crawford, supra note 29.
    34
    Id.
    35
    Id.
    36
    Id.
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    the lawyer’s own funds in a client trust account for the sole
    purpose of paying bank service charges on that account, but
    only in an amount necessary for that purpose.”
    [10,11] Collectively, subsections (a) and (b) of § 3-501.15
    prohibit the commingling of client funds with an attorney’s
    personal funds. Generally speaking, an attorney violates the
    rule against commingling when the funds of the client are
    intermingled with those of the attorney in such a way that their
    separate identity is lost and they may be used by the attorney
    for personal expenses or subjected to the claims of the attor-
    ney’s creditors.37
    In State ex rel. Counsel for Dis. v. Davis,38 we found
    clear and convincing evidence of commingling in violation of
    § 3-501.15(a) and (b) when the attorney used her client trust
    account as both a business account and a personal checking
    account. We reach the same conclusion in the present case.
    Here, the record is replete with evidence that Nimmer used
    his client trust account as a personal checking account. From
    2006 through 2016, Nimmer deposited thousands of dollars
    in personal funds into his client trust account. Some of these
    personal funds were from his mother and some were trans-
    ferred directly from his personal checking account, but none
    were for the sole purpose of paying bank service charges on
    the account.
    Nimmer regularly wrote checks on his client trust account
    for personal and business expenses. Much of this evidence
    was admitted by Nimmer and has been summarized in the
    referee’s findings recited previously. But in addition to the
    referee’s findings, our de novo review reveals considerable
    circumstantial evidence that Nimmer’s use of his client trust
    account as a personal checking account was more pervasive
    than the referee’s report would suggest. Given the volume
    37
    Annot., 
    94 A.L.R.3d 846
    , § 3 (1979 & Supp. 2018).
    38
    State ex rel. Counsel for Dis. v. Davis, 
    276 Neb. 158
    , 
    760 N.W.2d 928
    (2008).
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    of that circumstantial evidence, we cite a few representa-
    tive examples.
    From 2005 through 2009, Nimmer wrote 19 checks on his
    client trust account to the Omaha Public Power District. He
    testified these checks were “more likely than not” his utility
    payments, but claimed that without his pre-2011 subsidiary
    trust account records, he could not be certain.
    From 2006 through 2009, Nimmer wrote 27 checks on his
    client trust account to “Cox Communications.” Nimmer testi-
    fied that Cox Communications was his current Internet service
    provider and was not a client of his, but he could not remember
    whether he had the same provider at the time the checks were
    written and did not want to “venture a guess.”
    Nimmer wrote a check to his ex-wife on the client trust
    account with the notation “Jan./Feb. health ins.” Nimmer testi-
    fied this check “may have” been a payment to his ex-wife for
    his daughter’s health insurance, but he did not “remember for
    sure.” Additionally, Nimmer wrote at least 22 other checks to
    his ex-wife, many with notations such as “camp,” “daycamp,”
    “Rachel’s camp,” “travel,” and “cookies.” Nimmer admitted
    these checks were not related to any client representation,
    but when asked if the checks represented personal payments
    on behalf of his daughter, Nimmer replied, “I’m not going to
    characterize them that way.” Nimmer himself offered several
    exhibits documenting payments he made from his client trust
    account in 2011, 2013, 2014, and 2016 for his daughter’s sum-
    mer camp.
    Nimmer wrote approximately 15 checks from his client trust
    account to “Cricket.” Nimmer testified, “I think Cricket is a
    cell phone provider,” but he did not recall why he had written
    the checks.
    In 2007, Nimmer wrote a check from his client trust account
    to the Nebraska State Bar Association in the amount of $320.
    When asked whether he was paying his bar dues out of his cli-
    ent trust account, Nimmer replied, “There is no notation that
    allows me to say for sure.”
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    [12] Disciplinary violations can be proved by circumstantial
    evidence,39 and in this case, we find considerable direct and
    circumstantial evidence which provides clear and convincing
    proof that Nimmer commingled client and personal funds in
    his client trust account and used his client trust account as
    a personal checking account. This misuse of his client trust
    account violated § 3-501.15(a) and (b). And by doing so,
    Nimmer also violated § 3-508.4(a) and his oath of office under
    § 7-104.
    5. No Merit to Nimmer’s
    A ffirmative Defenses
    Nimmer does not deny depositing non-client-related funds
    into his client trust account, nor does he deny paying personal
    expenses for himself, his mother, and his daughter out of his
    client trust account. Instead, Nimmer raises several arguments,
    framed as affirmative defenses, which he contends preclude a
    finding that he used his client trust account in violation of the
    Nebraska Rules of Professional Conduct. We address his argu-
    ments below, and find all to be meritless.
    (a) Earned Fees
    Nimmer’s verified answer alleged “it is possible though
    unlikely [I] may have paid some personal expenses from fees
    as earned—though without recourse to subsidiary ledgers it is
    impossible to link specific transactions to specifically earned
    fees.” Before the referee and in his briefing to this court,
    Nimmer argues that it is possible he was writing personal
    checks on earned fees. He offered no contemporaneous bill-
    ings or other credible evidence to support such a theory. And
    even assuming that some of the funds in Nimmer’s client trust
    account may have represented earned fees, Nimmer did not
    withdraw legal fees and expenses from the client trust account
    39
    Crawford, supra note 29 (demonstrating that even evidence which is
    largely circumstantial, disputed, and complicated can nonetheless be clear
    and convincing).
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    as they were earned to place them in an operating account.40
    Instead, he wrote checks for personal expenses directly from
    his client trust account and now attempts to defend his actions
    by suggesting it is possible he was using earned fees. We reject
    this affirmative defense as speculative and unproven, and even
    if Nimmer had offered sufficient proof of earned fees, it would
    not have excused or explained his commingling.
    (b) “Third-Party” Funds
    Nimmer argues he did not violate § 3-501.15 by deposit-
    ing personal funds into his client trust account, because, he
    contends, any funds deposited were not his personal funds,
    but instead belonged to nonclient “third parties,” such as his
    daughter and his mother. His attempt to characterize personal
    loans from his mother and funds from his personal checking
    account as anything other than his “own funds” is disingenu-
    ous. But even more troubling is Nimmer’s proffered interpreta-
    tion of § 3-501.15(a).
    In Nimmer’s answer, he “affirmatively avers holding third
    party funds in an attorney trust account not in connection with
    legal representation is not prohibited.” In his arguments to this
    court, Nimmer contends that § 3-501.15(a) permits an attorney
    to deposit “third party” funds into a client trust account, even
    if such funds are unconnected to representing a client. We dis-
    agree, and reject Nimmer’s position as patently contrary to the
    plain language of § 3-501.15(a).
    Section 3-501.15(a) plainly requires that property of “cli-
    ents” and property of “third persons . . . in a lawyer’s posses-
    sion in connection with a representation” shall be kept separate
    from the lawyer’s own property and that all “[f]unds” must be
    kept “in a separate account” and all “[o]ther property” must be
    “identified as such and appropriately safeguarded.”
    While this rule references “third persons,” it does so only in
    the context of funds in the lawyer’s possession “in connection
    40
    See § 3-501.15(c).
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    with a [client] representation.” Additionally, the client trust
    account here was an interest-bearing trust account subject to
    additional rules found in chapter 3, article 9, of this court’s
    rules. Those rules make clear that such accounts are for “the
    deposit of funds of clients”41 and not, as Nimmer suggests, for
    holding “third-party” funds that have no connection to the rep-
    resentation of a client.
    Nimmer’s proposed interpretation of § 3-501.15(a) borders
    on frivolous and provides no defense to commingling.
    (c) No “[G]ood [F]aith” Defense
    to Commingling
    Finally, Nimmer argues that if we determine his use of
    the client trust account violated § 3-501.15(a) and (b) by
    commingling personal and client funds, then a “good faith”
    defense should apply to protect him from discipline, because,
    he contends, the commingling provisions of § 3-501.15(a)
    are not sufficiently clear. The referee found that the “good
    faith” defense, sometimes relied upon in defending legal
    malpractice cases, did not apply to protect Nimmer from
    the consequences of violating clear disciplinary rules pro-
    hibiting the commingling of client and personal funds.
    We agree.
    Although we have recognized a “good faith” defense to
    civil liability in legal malpractice claims when the law is not
    well settled,42 we have not applied such a defense in the attor-
    ney discipline context, and for good reason. It has no proper
    application.
    [13] In the context of attorney discipline cases, “‘[w]e
    have repeatedly recognized the ancient maxim that ignorance
    of the law is no excuse. It is a maxim sanctioned by centu-
    ries of experience [and it] applies with even greater emphasis
    41
    See § 3-902.
    42
    See Baker v. Fabian, Thielen & Thielen, 
    254 Neb. 697
    , 
    578 N.W.2d 446
    (1998).
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    to an attorney at law who is expected to be learned in
    the law.’”43
    [14] Simply put, neither good faith nor ignorance of the
    rules prohibiting commingling client and personal funds pro-
    vides a defense to a disciplinary charge that an attorney vio-
    lated the rules against commingling.44 The District of Columbia
    Court of Appeals explained it well: “If a failure to understand
    the most central Rules of Professional Conduct could be an
    acceptable defense for a charged violation, even in cases of
    good faith mistake, the public’s confidence in the bar and,
    more importantly, the public’s protection against lawyer over-
    reaching would diminish considerably.”45
    We agree with this reasoning. Nimmer cannot avoid disci-
    plinary sanctions for violating the fundamental rules prohibit-
    ing commingling by relying on a “good faith” defense.
    6. A ppropriate Sanction
    Having concluded Nimmer violated the Nebraska Rules of
    Professional Conduct and his oath of office by commingling
    client and personal funds, we must determine the appropri-
    ate sanction.
    [15,16] To determine whether and to what extent dis-
    cipline should be imposed in an attorney discipline pro-
    ceeding, we consider the following factors: (1) the nature
    of the offense, (2) the need for deterring others, (3) the
    maintenance of the reputation of the bar as a whole, (4) the
    protection of the public, (5) the attitude of the respondent
    generally, and (6) the respond­ent’s present or future fitness
    to continue in the practice of law.46 Each attorney discipline
    43
    State ex rel. Nebraska State Bar Assn. v. Hollstein, 
    202 Neb. 40
    , 58, 
    274 N.W.2d 508
    , 518 (1979).
    44
    94 A.L.R.3d, supra note 37, § 10 (and cases cited therein).
    45
    In re Smith, 
    817 A.2d 196
    , 202 (D.C. 2003).
    46
    Trembly, supra note 17.
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    case must be evaluated in light of its particular facts and
    circumstances.47
    [17,18] For purposes of determining the proper discipline
    of an attorney, we consider the attorney’s actions both under-
    lying the events of the case and throughout the proceeding, as
    well as any aggravating or mitigating factors.48 The propriety
    of a sanction must be considered with reference to the sanc-
    tions imposed in prior similar cases.49
    [19] Under Neb. Ct. R. § 3-304, this court may impose
    one or more of the following disciplinary sanctions: “(1)
    Disbarment by the Court; or (2) Suspension by the Court; or
    (3) Probation by the Court in lieu of or subsequent to suspen-
    sion, on such terms as the Court may designate; or (4) Censure
    and reprimand by the Court; or (5) Temporary suspension by
    the Court[.]”
    (a) Nature of Offense
    [20] This court considers commingling of client funds
    with an attorney’s own funds to be a matter of gravest con-
    cern in reviewing claims of lawyer misconduct.50 We have
    recognized:
    The prohibition against commingling of funds is a salu-
    tary rule adopted “‘to provide against the probability in
    some cases, the possibility in many cases, and the dan-
    ger in all cases that such commingling will result in the
    loss of clients’ money. Moral turpitude is not necessarily
    involved in the commingling of a client’s money with an
    attorney’s own money if the client’s money is not endan-
    gered by such procedure and is always available to him.
    However, inherently there is danger in such practice for
    47
    Id.
    48
    Id.
    49
    Id.
    50
    State ex rel. NSBA v. Statmore, 
    218 Neb. 138
    , 
    352 N.W.2d 875
     (1984).
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    frequently unforeseen circumstances arise jeopardizing
    the safety of the client’s funds, and as far as the client
    is concerned the result is the same whether his money is
    deliberately misappropriated by an attorney or is unin-
    tentionally lost by circumstances beyond the control of
    the attorney.’”51
    Even when the client suffers no loss, commingling client
    funds with personal funds is not a trivial or technical rule
    violation.52
    (b) Need for Deterring Others
    It has been suggested that violating the rule against com-
    mingling is one of the most frequent bases for disciplinary
    action against attorneys.53 As such, we agree with the referee
    that the need to send a clear and strong message deterring
    others from commingling client and personal funds, and from
    using client trust accounts as personal checking accounts, is
    paramount. It has been observed: “‘In most jurisdictions, disci-
    plinary authorities treat violations of the rule against commin-
    gling trust funds and personal funds very seriously . . . even
    where the client or third party suffers no loss, harsh sanctions
    usually follow as a prophylactic warning that com[m]ingling
    cannot be tolerated.’”54
    (c) Reputation of Bar
    The referee correctly observed that misuse of client trust
    accounts, even when it does not involve obvious misappro-
    priation, harms the reputation of the entire legal profession by
    undermining public confidence and trust in attorneys, in the
    courts, and in the legal system generally.
    51
    Id. at 142, 
    352 N.W.2d at 878
    .
    52
    See Disciplinary Proceedings Against Mulligan, 
    365 Wis. 2d 43
    , 
    870 N.W.2d 233
     (2015).
    53
    94 A.L.R.3d, supra note 37, § 2.
    54
    See Disciplinary Proceedings Against Mulligan, supra note 52, 365 Wis.
    2d at 61-62, 870 N.W.2d at 242.
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    (d) Protection of Public
    [21,22] 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.55
    Providing for the protection of the public requires the imposi-
    tion of an adequate sanction to maintain public confidence in
    the bar.56
    (e) Attitude of Respondent
    The referee found that although Nimmer had not admit-
    ted his violations, he conceded that “he may have exercised
    poor judgment.” The referee thus concluded, “It appears that
    [Nimmer] is open to the need to seriously correct his practices
    regarding his trust account management, but a period of sus-
    pension is necessary to impress upon him the critical need to
    do so.”
    [23] An attorney’s admission of responsibility for his or
    her actions reflects positively upon his or her attitude and
    character and is to be considered in determining the appropri-
    ate discipline.57 But while we consider and give weight to the
    referee’s observations, our de novo review of the record sug-
    gests that, rather than displaying remorse for his actions and
    an openness to changing the behavior that prompted this disci-
    plinary proceeding, Nimmer has generally refused to acknowl-
    edge the wrongful nature of his conduct in commingling client
    and personal funds.
    Nimmer has challenged this court’s authority to discipline
    him and repeatedly tried to prevent consideration and review
    of his client trust account records. While lawyers facing dis-
    ciplinary charges should not be discouraged in any way from
    mounting a vigorous defense, some of the legal positions
    55
    Trembly, supra note 17.
    56
    Id.
    57
    State ex rel. Counsel for Dis. v. Petersen, 
    271 Neb. 262
    , 
    710 N.W.2d 646
    (2006).
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    advanced by Nimmer in this proceeding border on the frivo-
    lous and reflect an attitude which bears negatively on his
    willingness to conform his conduct to the Nebraska Rules of
    Professional Conduct.
    (f) Present or Future Fitness
    to Practice Law
    The referee observed that Nimmer “conducted himself dur-
    ing the proceedings appropriately and with knowledge of the
    law and procedure” and thus found “no evidence to suggest
    that Nimmer is not fit to practice law.” Although we con-
    sider and give weight to the fact that the referee heard and
    observed Nimmer’s conduct during these proceedings, we
    cannot ignore that Nimmer’s actions in using his client trust
    account as a personal checking account demonstrated contin-
    ued indifference to the fundamental rule against commingling,
    which we conclude bears negatively on his future fitness to
    practice law.
    (g) Aggravating Factors
    We agree with the referee that the record supports several
    aggravating factors. Nimmer has already been publicly repri-
    manded by this court for a violation of the Nebraska Rules of
    Professional Conduct in a prior disciplinary proceeding.58
    [24] Moreover, the extended period of time over which
    Nimmer engaged in commingling, and the large number of
    personal checks Nimmer wrote on his client trust account,
    are additional aggravating factors. Nimmer did more than
    commingle on one or two occasions—he engaged in a pat-
    tern of conduct that spanned nearly a decade and involved
    hundreds of checks totaling thousands of dollars. Because
    cumulative acts of attorney misconduct are distinguishable
    from isolated incidents, they justify more serious sanctions.59
    58
    See Nimmer, supra note 10.
    59
    State ex rel. Counsel for Dis. v. Walocha, 
    283 Neb. 474
    , 
    811 N.W.2d 174
    (2012).
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    Cumulative acts of misconduct can, and often do, lead to
    disbarment.60
    (h) Mitigating Factors
    [25] The referee found “the central mitigating fact in this
    case is that Nimmer did not misappropriate any client funds.”
    We have defined misappropriation as any unauthorized use of
    client funds entrusted to an attorney, including not only steal-
    ing, but also unauthorized temporary use for the attorney’s
    own purpose, whether or not the attorney derives any personal
    gain or benefit therefrom.61
    Nimmer was not charged with misappropriation of client
    funds, but we do not agree this is a mitigating factor. We
    note that after the years of commingling that occurred here,
    it would be difficult to discern whether any client funds were
    misappropriated. Sometimes an attorney can “so inextricably
    com[m]ingle[] client and personal funds” in his or her trust
    account that “it is impossible to know which or whose funds
    were being used at any particular time.”62
    [26] Here, we understand the referee’s observation that
    Nimmer “did not misappropriate any client funds” to mean
    the referee saw no evidence that Nimmer’s client trust account
    was overdrawn or that clients suffered documented financial
    loss. But we have been clear that lack of financial harm to cli-
    ents is not a mitigating factor in commingling cases:
    [A] lawyer’s poor accounting procedures and sloppy
    office management are not excuses or mitigating circum-
    stances in reference to commingled funds. The fact that
    the client did not suffer any financial loss . . . does not
    provide a reason for imposing a less severe sanction.”63
    60
    
    Id.
    61
    Crawford, supra note 29.
    62
    See Disciplinary Proceedings Against Mulligan, supra note 52, 365 Wis.
    2d at 63-64, 870 N.W.2d at 243.
    63
    Crawford, supra note 29, 285 Neb. at 365, 827 N.W.2d at 245.
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    Fortunately, there was no evidence that Nimmer’s clients suf-
    fered a financial loss as a result of his commingling of funds.
    However, we must respectfully disagree with the referee that
    this should be considered a mitigating factor. And we see
    nothing in the record, or the briefing, that suggests any other
    mitigating factor.
    (i) Other Cases
    In State ex rel. Counsel for Dis. v. Davis,64 we suspended
    an attorney for 1 year after finding by clear and convincing
    evidence that she used her client trust account as a business
    and personal checking account and failed to promptly deliver
    trust account funds to a client’s health care provider. That
    case, however, involved several mitigating factors includ-
    ing: the attorney suffered from depression and anxiety, the
    attorney was an alcoholic and agreed to undergo treatment,
    the attorney had no prior disciplinary actions, and the referee
    received multiple letters from the community attesting to the
    attorney’s good character and reputation.65
    In State ex rel. NSBA v. Veith,66 we disbarred an attor-
    ney after finding by clear and convincing evidence that he
    commingled, and misappropriated, client funds. In doing
    so, we disagreed with the referee’s recommended discipline
    of an 8-month suspension.67 And we found disbarment was
    appropriate even though the attorney had reimbursed his
    clients.68
    In State ex rel. NSBA v. Malcom,69 we disbarred an attor-
    ney after finding by clear and convincing evidence that he
    64
    Davis, 
    supra note 38
    .
    65
    
    Id.
    66
    State ex rel. NSBA v. Veith, 
    238 Neb. 239
    , 
    470 N.W.2d 549
     (1991).
    67
    
    Id.
    68
    
    Id.
    69
    State ex rel. NSBA v. Malcom, 
    252 Neb. 263
    , 
    561 N.W.2d 237
     (1997).
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    commingled and misappropriated client funds on 10 occa-
    sions. We explained that the attorney’s excuse that the mis-
    conduct was inadvertent did not overcome the presumption
    of disbarment.70
    (j) Appropriate Sanction
    [27,28] Absent mitigating circumstances, this court has
    repeatedly held that disbarment is the appropriate discipline
    in cases of misappropriation or commingling of client funds.71
    Mitigating factors may overcome the presumption of disbar-
    ment in misappropriation and commingling cases where they
    are extraordinary and substantially outweigh any aggravating
    circumstances.72 In this case, we do not find any such mitigat-
    ing factors.
    For a period of nearly 10 years, Nimmer engaged in a pat-
    tern of commingling personal funds with client funds and
    using his client trust account as a personal checking account.
    His violations were serious, and there is no evidence of
    any mitigating factors in the record that explain or excuse
    his misconduct.
    Nimmer has been disciplined for misconduct previously, and
    his prolonged and persistent violation of the rule against com-
    mingling reflects a general failure, or unwillingness, to fully
    comprehend the serious nature of his conduct. After balancing
    the relevant factors in comparison to other cases, and consider-
    ing the need to protect the public, the need to deter others, the
    reputation of the bar as a whole, Nimmer’s fitness to practice
    law, and the aggravating circumstances, we conclude the only
    appropriate sanction here is disbarment.
    70
    
    Id.
    71
    See, e.g., State ex rel. Counsel for Dis. v. Thebarge, 
    289 Neb. 356
    , 
    854 N.W.2d 914
     (2014); State ex rel. Counsel for Dis. v. Council, 
    289 Neb. 33
    ,
    
    853 N.W.2d 844
     (2014); Crawford, supra note 29; State ex rel. NSBA v.
    Howze, 
    260 Neb. 547
    , 
    618 N.W.2d 663
     (2000); Malcom, 
    supra note 69
    .
    72
    Council, supra note 71.
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    STATE EX REL. COUNSEL FOR DIS. v. NIMMER
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    IV. CONCLUSION
    There is clear and convincing evidence that Nimmer vio-
    lated the Nebraska Rules of Professional Conduct and his oath
    of office by commingling client and personal funds. It is the
    judgment of this court that Nimmer is disbarred from the prac-
    tice of law in the State of Nebraska, effective immediately. He
    is directed to comply with Neb. Ct. R. § 3-316 (rev. 2014),
    and upon failure to do so, he shall be subject to punishment
    for contempt of this court.
    Judgment of disbarment.