State ex rel. Counsel for Dis. v. Davis

S tate of nebraSka ex rel . C ounSel for dISCIplIne of
the nebraSka S upreme C ourt , relator , v .
adrIenne S. davIS, reSpondent .
760 N.W.2d 928
Filed July 18, 2008. 	No. S-07-640.
Original action. Judgment of suspension.
heavICan, 	C.J., 	W rIght, 	C onnolly, 	gerrard, 	S tephan,
mCC ormaCk, and mIller -lerman, JJ.
per C urIam.
INTRODUCTION
On August 23, 2007, formal charges were filed by the office
of the Counsel for Discipline, relator, against Adrienne S. Davis,
respondent. The formal charges included allegations that respond-
ent violated the following provisions of what are now codified
as Neb. Ct. R. of Prof. Cond.: § 3-501.15(a) (maintaining trust
account); § 3-501.15(b) (depositing lawyer’s funds in trust
account); § 3-501.15(d) (delivering trust account funds to client
or third person); § 3-508.4(a) (violating disciplinary rule); and
§ 3-508.4(c) (engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation). The formal charges also alleged
that respondent violated her oath of office as an attorney. See
Neb. Rev. Stat. § 7-104 (Reissue 1997). Respondent’s answer in
effect disputed certain of the allegations.
A referee was appointed who heard evidence. The referee
filed a report on April 15, 2008, in which the referee concluded,
inter alia, that respondent’s conduct had violated § 3-501.15(a),
(b), and (d); § 3-508.4(a) and (c); and her oath as an attorney. In
his report, the referee noted that as a result of the attorney mis-
conduct that resulted in the present formal charges being filed
against respondent, respondent had been temporarily suspended
from the practice of law on July 11, 2007. The referee recom-
mended that respondent remain indefinitely suspended from the
practice of law with no possibility of reinstatement until July 11,
2008, such reinstatement to be followed by a 2-year period of
monitored probation.
On April 30, 2008, respondent filed a motion for judgment
on the pleadings, requesting that this court accept the referee’s
158 	276 NEBRASkA REPORTS
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recommendation and enter judgment thereon. We grant respond-
ent’s motion, and we impose discipline as indicated below.
FACTS
The referee’s hearing was held on March 6, 2008. Respondent
testified during the hearing, along with three other witnesses. A
total of 54 exhibits were admitted into evidence.
The substance of the referee’s findings may be summarized
as follows: Respondent was admitted to the practice of law in
the State of Nebraska in 2001. She has practiced in Lancaster
County, Nebraska.
With regard to the allegations in the formal charges, in sum-
mary, the referee found that during the period from September
2006 to February 2007, respondent had used her attorney trust
account as both a business account and a personal checking
account and had failed to promptly deliver trust account funds
to a client’s health care provider.
In his report, the referee set forth several mitigating factors.
The referee noted that respondent suffered from depression and
anxiety and that she was an alcoholic. The referee found that
respondent had received inpatient treatment for her alcoholism
and regularly attended Alcoholics Anonymous meetings. The
referee found that on May 10, 2007, respondent had entered into
a monitoring contract with the Nebraska Lawyers Assistance
Program (NLAP). In the contract, respondent agreed to abstain
from alcohol, to submit to random drug testing, and to submit
to an attorney monitor. The referee found that respondent was
currently seeing a mental health counselor and was taking anti-
depressant medication. The referee also noted that respondent
had had no prior disciplinary proceedings and that numerous
attorneys had written letters of recommendation reflecting that
respondent had a good reputation among her colleagues. The
referee further noted that respondent had cooperated with relator
during the disciplinary proceeding. The referee did not note any
aggravating factors.
Based upon the evidence offered during the hearing, the
referee found that certain of respondent’s actions constituted a
violation of the following provisions of the Nebraska Rules of
Professional Conduct: §§ 3-501.15(a), (b), and (d) and 3-508.4(a)
STATE Ex REL. COUNSEL FOR DIS. v. DAVIS 	159
Cite as 276 Neb. 158

and (c). The referee also found that respondent’s actions consti-
tuted a violation of respondent’s oath of office as an attorney.
With respect to the discipline to be imposed, the referee recom-
mended that respondent remain indefinitely suspended from the
practice of law with no possibility of reinstatement until July 11,
2008, such reinstatement to be followed by a 2-year period of
monitored probation.
No exceptions were filed to the referee’s report. On April 30,
2008, respondent filed a motion for judgment on the pleadings,
in which respondent moved this court to enter judgment in con-
formity with the referee’s report and recommendation.
ANALySIS
We note that all of respondent’s conduct at issue in this case
occurred on or after September 1, 2005, and is therefore gov-
erned by the Nebraska Rules of Professional Conduct. We are
guided by the principles previously announced in our prior deci-
sions under the Code of Professional Responsibility. See State
ex rel. Counsel for Dis. v. Dortch, 273 Neb. 667, 731 N.W.2d
594 (2007).
A proceeding to discipline an attorney is a trial de novo
on the record. State ex rel. Counsel for Dis. v. Wadman, 275
Neb. 357, 746 N.W.2d 681 (2008). To sustain a charge in a
disciplinary proceeding against an attorney, a charge must be
supported by clear and convincing evidence. Id. Violation of a
disciplinary rule concerning the practice of law is a ground for
discipline. Id.
As noted above, neither party filed written exceptions to the
referee’s report. Pursuant to Neb. Ct. R. § 3-310(L), respondent
filed a motion for judgment on the pleadings. When no excep-
tions to the referee’s findings of fact are filed by either party in
an attorney discipline proceeding, the Nebraska Supreme Court
may, in its discretion, consider the referee’s findings final and
conclusive. State ex rel. Counsel for Dis. v. Kratina, 275 Neb.
401, 746 N.W.2d 378 (2008).
Based upon the undisputed findings of fact in the referee’s
report, which we consider to be final and conclusive, we con-
clude the formal charges are supported by clear and convinc-
ing evidence, and the motion for judgment on the pleadings is
160 	276 NEBRASkA REPORTS

granted. Specifically, based upon the foregoing evidence, we
conclude that respondent has violated the following provisions
of the Nebraska Rules of Professional Conduct: §§ 3-501.15(a),
(b), and (d) and 3-508.4(a) and (c). Finally, we conclude that by
virtue of respondent’s conduct, respondent has violated her oath
of office as an attorney. See § 7-104.
We have stated that the basic issues in a disciplinary proceed-
ing against a lawyer are whether discipline should be imposed
and, if so, the type of discipline appropriate under the circum-
stances. State ex rel. Counsel for Dis. v. Wadman, supra. Neb.
Ct. R. § 3-304 provides that the following may be considered as
discipline for attorney misconduct:
(A) Misconduct shall be grounds for:
(1) Disbarment by the Court; or
(2) Suspension by the Court; or
(3) Probation by the Court in lieu of or subsequent to
suspension, on such terms as the Court may designate; or
(4) Censure and reprimand by the Court; or
(5) Temporary suspension by the Court; or
(6) Private reprimand by the Committee on Inquiry or
Disciplinary Review Board.
(B) The Court may, in its discretion, impose one or more
of the disciplinary sanctions set forth above.
See, also, § 3-310(N).
With respect to the imposition of attorney discipline in an
individual case, we have stated that each attorney discipline case
must be evaluated individually in light of its particular facts and
circumstances. State ex rel. Counsel for Dis. v. Wadman, supra.
For purposes of determining the proper discipline of an attor-
ney, this court considers the attorney’s acts both underlying the
events of the case and throughout the proceeding. Id. The deter-
mination of an appropriate penalty to be imposed on an attorney
in a disciplinary proceeding also requires the consideration of
any aggravating or mitigating factors. Id.
We have considered the referee’s report and recommenda-
tion, the findings of which have been established by clear and
convincing evidence, and the applicable law. Upon due con-
sideration of the record, the court finds that respondent should
be suspended from the practice of law for a period of 1 year
STATE Ex REL. COUNSEL FOR DIS. v. DAVIS 	161
Cite as 276 Neb. 158

and that the suspension should be retroactive to the date of
respondent’s temporary suspension from the practice of law on
July 11, 2007. In the event respondent seeks reinstatement, she
will be required to show compliance with her NLAP contract
and compliance with any outpatient treatment plan relating to
alcohol addiction or depression. Further, in the event respondent
is reinstated, she will be required to submit to a 2-year proba-
tion plan, for the approval of this court, which plan will include
continued compliance with her NLAP contract, compliance with
any outpatient plan relating to alcohol addiction or depression,
monitoring of her practice and trust account management by a
practicing attorney approved by relator, and monitoring of her
compliance with the Nebraska Rules of Professional Conduct by
NLAP and relator.
CONCLUSION
We find by clear and convincing evidence that respondent
violated the following provisions of the Nebraska Rules of
Professional Conduct: §§ 3-501.15(a), (b), and (d) and 3-508.4(a)
and (c), as well as her oath as an attorney. It is the judgment of
this court that respondent should be and hereby is suspended
from the practice of law for a period of 1 year, with such suspen-
sion retroactive to July 11, 2007. In the event respondent seeks
reinstatement following her suspension, her reinstatement will
be subject to the terms set forth above. Respondent shall dem-
onstrate compliance with Neb. Ct. R. § 3-316, and upon failure
to do so, she shall be subject to punishment for contempt of
this court. Furthermore, respondent is directed to pay costs and
expenses in accordance with Neb. Rev. Stat. §§ 7-114 and 7-115
(Reissue 1997), and § 3-310(P) and Neb. Ct. R. § 3-323 within
60 days after an order imposing costs and expenses, if any, is
entered by this court.
J udgment of SuSpenSIon .
162 	276 NEBRASkA REPORTS