State ex rel. Counsel for Dis. v. Fitch , 297 Neb. 705 ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    11/03/2017 09:14 AM CDT
    - 705 -
    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    STATE EX REL. COUNSEL FOR DIS. v. FITCH
    Cite as 
    297 Neb. 705
    State     of    Nebraska ex rel. Counsel for Discipline
    of the      Nebraska Supreme Court, relator,
    v. Thomas A. Fitch, respondent.
    ___ N.W.2d ___
    Filed September 8, 2017.   No. S-16-1164.
    Original action. Judgment of public reprimand.
    Heavican, C.J., Wright, Miller‑Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Per Curiam.
    INTRODUCTION
    This case is before the court on the conditional admission
    filed by Thomas A. Fitch, respondent, on June 7, 2017. The
    court accepts respondent’s conditional admission and enters an
    order of public reprimand.
    FACTS
    Respondent was admitted to the practice of law in the State
    of Nebraska on April 29, 1992. At all relevant times, he was
    engaged in the practice of law in South Sioux City, Nebraska.
    On June 6, 2017, the Counsel for Discipline of the Nebraska
    Supreme Court filed amended formal charges against respond­
    ent. The amended formal charges consist of one count against
    respondent arising from his conduct in connection with the
    business of his client in which respondent was a participant.
    The formal charges state that on September 26, 2007, Doug
    Peterson met with respondent at respondent’s office to review
    and notarize documents with regard to Peterson’s agreement
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    STATE EX REL. COUNSEL FOR DIS. v. FITCH
    Cite as 
    297 Neb. 705
    to purchase real property in Dixon County, Nebraska. An
    abandoned gravel pit was located on the property, and it
    was Peterson’s intent to reopen the gravel pit as an ongoing
    sand and gravel mining operation. Prior to September 26,
    respondent had represented Peterson on several matters. During
    their September 26 meeting, Peterson informed respondent
    that he was looking for ways to finance his nascent sand and
    gravel business.
    Following the meeting, respondent invested in Peterson’s
    sand and gravel business, and brought in a longtime friend as
    an investor. On February 12, 2008, “Peterson Sand & Gravel,
    LLC” (LLC) was formed. Respondent prepared all documents
    for the formation of the LLC. Respondent was one of four
    members of the LLC.
    Initially, Peterson was elected as the manager of the com-
    pany to manage the daily affairs of the company. Peterson
    was elected as president of the LLC, and respondent was
    elected as the secretary and treasurer. Eventually, Peterson
    resigned as president of the LLC because of concerns that
    his prior personal bankruptcy and current financial status
    might jeopardize the LLC’s ability to obtain a Small Business
    Administration loan. On March 21, 2009, all members of the
    LLC accepted the resignation of Peterson regarding his mem-
    bership in the LLC and all offices he held. Peterson continued
    to serve as the daily operations manager of the LLC through
    December 2013.
    Despite his previous resignation as president of the LLC,
    Peterson signed as president of the LLC in a series of six
    promissory notes and commercial debt modification agree-
    ments with a bank in South Sioux City. Respondent also signed
    each of the loan documents as secretary/treasurer of the LLC.
    At the time the loan documents were inaccurately signed by
    Peterson as president and by respondent as secretary/treasurer,
    respondent knew that Peterson no longer served as president of
    the LLC. However, respondent failed to inform the bank that
    Peterson was no longer president of the LLC.
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    STATE EX REL. COUNSEL FOR DIS. v. FITCH
    Cite as 
    297 Neb. 705
    The amended formal charges allege that by his omissions,
    respondent violated his oath of office as an attorney, Neb.
    Rev. Stat. § 7‑104 (Reissue 2012), and Neb. Ct. R. of Prof.
    Cond. §§ 3‑501.3 (diligence), 3‑501.8 (conflict of interest), and
    3‑508.4 (misconduct).
    On June 7, 2017, respondent filed a conditional admission
    pursuant to Neb. Ct. R. § 3‑313(B) of the disciplinary rules,
    in which he conditionally admitted that he violated his oath of
    office as an attorney and professional conduct rules §§ 3‑501.3,
    3‑501.8, and 3‑508.4. In the conditional admission, respondent
    knowingly does not challenge or contest the truth of the mat-
    ters conditionally asserted and waives all proceedings against
    him in exchange for a public reprimand.
    The proposed conditional admission included a declara-
    tion by the Counsel for Discipline, stating that respondent’s
    proposed discipline is appropriate and consistent with sanc-
    tions imposed in other disciplinary cases with similar acts of
    misconduct.
    ANALYSIS
    Section 3‑313, which is a component of our rules governing
    procedures regarding attorney discipline, provides in perti-
    nent 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
    conditional admission shall include a written statement
    that the Respondent knowingly admits or knowingly
    does not challenge or contest the truth of the matter or
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    Nebraska Supreme Court A dvance Sheets
    297 Nebraska R eports
    STATE EX REL. COUNSEL FOR DIS. v. FITCH
    Cite as 
    297 Neb. 705
    matters conditionally admitted and waives all proceed-
    ings 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 conditionally admitted. We further deter-
    mine that by his conduct, respondent violated conduct rules
    §§ 3‑501.3, 3‑501.8, and 3‑508.4 and 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
    Respondent is publicly reprimanded. Respondent is directed
    to pay costs and expenses in accordance with Neb. Ct. R.
    §§ 3‑310(P) (rev. 2014) and 3‑323 of the disciplinary rules
    within 60 days after an order imposing costs and expenses, if
    any, is entered by the court.
    Judgment of public reprimand.
    

Document Info

Docket Number: S-16-1164

Citation Numbers: 297 Neb. 705

Filed Date: 9/8/2017

Precedential Status: Precedential

Modified Date: 11/3/2017