State ex rel. Counsel for Dis. v. Kruger ( 2013 )

Nebraska Advance Sheets
STATE EX REL. COUNSEL FOR DIS. v. KRUGER 775
Cite as 286 Neb. 775
State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator,
v. Eric W. K ruger, respondent.
___ N.W.2d ___
Filed November 1, 2013. No. S-13-108.
Original action. Judgment of public reprimand.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller‑Lerman, and Cassel, JJ.
P er Curiam.
INTRODUCTION
Respondent, Eric W. Kruger, was admitted to the practice
of law in the State of Nebraska on September 12, 1977. At
all relevant times, he was engaged in the private practice of
law in Omaha, Nebraska. On February 11, 2013, the Counsel
for Discipline of the Nebraska Supreme Court filed formal
charges consisting of one count against respondent. In the one
count, it was alleged that by his conduct, respondent had vio-
lated his oath of office as an attorney, Neb. Rev. Stat. § 7‑104
(Reissue 2012), and Neb. Ct. R. of Prof. Cond. §§ 3‑504.1(a)
(truthfulness in statements to others) and 3‑508.4(a), (c), and
(d) (misconduct).
On May 3, 2013, respondent filed his answer admitting to
the formal charges. On May 23, a referee was appointed to
recommend discipline, and on September 4, the referee’s report
was filed which recommended a public reprimand and super-
vised probation for a period of 18 months. On September 13,
respondent filed exceptions to the referee’s report.
On September 23, 2013, respondent filed a conditional
admission pursuant to Neb. Ct. R. § 3‑313 of the disciplinary
rules, in which he knowingly chose not to challenge or contest
the truth of the matters set forth in the formal charges and
waived all proceedings against him in connection therewith in
exchange for a judgment of public reprimand and no super-
vised probation.
The proposed conditional admission included a declaration
by the Counsel for Discipline, stating that respondent’s request
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776 286 NEBRASKA REPORTS
for public reprimand is appropriate. The Counsel for Discipline
agreed with respondent that “a term of probation is unneces-
sary in this case.”
Upon due consideration, we approve the conditional admis-
sion and order that respondent be publicly reprimanded.
FACTS
The formal charges generally allege that respondent know-
ingly made false statements during a settlement negotiation.
The underlying facts of this case can be found at Smalley v.
Nebraska Dept. of Health & Human Servs., 283 Neb. 544,
811 N.W.2d 246 (2012), cert. denied ___ U.S. ___, 133 S. Ct.
1631, 185 L. Ed. 2d 616 (2013).
The formal charges state that on December 20, 2007, Edward
M. Smalley was injured when he was struck by a vehicle
owned by Mark Morehead Construction, Inc. (Morehead), and
driven by Jerome Speck. On behalf of Smalley, respondent
filed suit against Speck and Morehead in February 2008.
It was determined that Smalley was eligible for Medicaid
during his hospital stay, and in March 2008, the hospital
submitted medical bills for Smalley in excess of $400,000
to the Nebraska Department of Health and Human Services
(DHHS) for payment under Medicaid. Pursuant to statutory
regulations and DHHS’ provider agreement with the hospi-
tal, DHHS could fully resolve Smalley’s medical bills with
a payment of approximately $130,000. Emil Spicka, a medi-
cal claims investigator with DHHS, refused to pay Smalley’s
hospital bills on the basis that “‘third party resources’” might
be available, such as the liability insurance of Speck and
Morehead. At the time DHHS denied payment of the medical
bills, Smalley’s claims against Speck and Morehead had not
been resolved.
Respondent received a settlement offer of $800,000 from
Speck and Morehead. According to the formal charges,
respond­ nt then specifically told Spicka that if DHHS would
e
pay Smalley’s hospital bill, Smalley would reimburse Medicaid
the full amount of its payment to the hospital of approximately
$130,000. Based upon the affirmative promise and assurance
of payment from respondent, Spicka authorized the Medicaid
Nebraska Advance Sheets
STATE EX REL. COUNSEL FOR DIS. v. KRUGER 777
Cite as 286 Neb. 775
payment to the hospital, which effectively extinguished the
hospital’s claim against Smalley for medical services in excess
of $400,000.
Immediately after DHHS paid the hospital bill for Smalley,
respondent amended the complaint in the pending case against
Speck and Morehead to add DHHS as a defendant. According
to the amended complaint, respondent acknowledged that he
intentionally misled Spicka to believe that Smalley would
agree to pay DHHS the full $130,000 and that he made the
false promise for the purpose of extinguishing the full hospital
bill of over $400,000 and with the express intention to there-
after challenge DHHS’ claim to the full $130,000. The formal
charges allege that respondent knew his promise to Spicka was
false when he made it.
The issue of DHHS’ entitlement to the $130,000 payment
from Smalley was litigated, and ultimately on appeal, we deter-
mined that DHHS was entitled to full reimbursement of the
$130,000 Medicaid payment. See Smalley v. Nebraska Dept. of
Health & Human Servs., supra.
The formal charges allege that respondent’s actions consti-
tute violations of his oath of office as an attorney as provided
by § 7‑104 and professional conduct rules §§ 3‑504.1(a) and
3‑508.4(a), (c), and (d).
ANALYSIS
Section 3‑313, which is a component of our rules govern-
ing procedures regarding attorney discipline, provides in per-
tinent part:
(B) At any time after the Clerk has entered a Formal
Charge against a Respondent on the docket of the Court,
the Respondent may file with the Clerk a conditional
admission of the Formal Charge in exchange for a stated
form of consent judgment of discipline as to all or
part of the Formal Charge pending against him or her
as determined to be appropriate by the Counsel for
Discipline or any member appointed to prosecute on
behalf of the Counsel for Discipline; such conditional
admission is subject to approval by the Court. The con-
ditional admission shall include a written statement that
Nebraska Advance Sheets
778 286 NEBRASKA REPORTS
the Respondent knowingly admits or knowingly does
not challenge or contest the truth of the matter or mat-
ters conditionally admitted and waives all proceedings
against him or her in connection therewith. If a tendered
conditional admission is not finally approved as above
provided, it may not be used as evidence against the
Respondent in any way.
Pursuant to § 3‑313, and given the conditional admission,
we find that respondent knowingly does not challenge or
contest the matters set forth in the formal charges. We further
determine that by his conduct, respondent violated professional
conduct rules §§ 3‑504.1(a) and 3‑508.4(a), (c), and (d), as
well as his oath of office as an attorney licensed to practice law
in the State of Nebraska. Respondent has waived all additional
proceedings against him in connection herewith. Upon due
consideration, the court approves the conditional admission
and enters the orders as indicated below.
CONCLUSION
The conditional admission is accepted. Respondent is pub-
licly reprimanded. Respondent is directed to pay costs and
expenses in accordance with Neb. Ct. R. §§ 3‑310(P) and
3‑323(B) within 60 days after the order imposing costs and
expenses, if any, is entered by the court.
Judgment of public reprimand.
In re I nterest of
Samantha L. and Jasmine L.,
children under18 years of age.
State of Nebraska, Department of Health and
Human Services, appellee and cross-appellee,
v. K elly L., appellee and cross-appellant,
and William H., appellant.
___ N.W.2d ___
Filed November 1, 2013. No. S-13-264.
1. Rules of the Supreme Court: Appeal and Error. Headings in the argu-
ment section of a brief do not satisfy the requirements of Neb. Ct. R. App. P.
§ 2-109(D)(1) (rev. 2012). Under that rule, a party is required to set forth the