State ex rel. Counsel for Dis. v. Downey

StAte of NebrASkA ex rel . C ouNSel for diSCipliNe
of the NebrASkA Supreme C ourt, relAtor , v.
ShAuN f. doWNey, reSpoNdeNt.
757 N.W.2d 381
Filed November 21, 2008. 	No. S-07-1041.
1. Disciplinary Proceedings. The basic issues in a disciplinary proceeding against a
lawyer are whether discipline should be imposed and, if so, the type of discipline
appropriate under the circumstances.
2. ____. Each case justifying the discipline of an attorney must be evaluated indi-
vidually in light of the particular facts and circumstances of that case.
3. ____. For purposes of determining the proper discipline of an attorney, the
Nebraska Supreme Court considers the attorney’s acts both underlying the events
of the case and throughout the proceeding.
4. ____. The determination of an appropriate penalty to be imposed on an attorney
in a disciplinary proceeding also requires consideration of any aggravating or
mitigating factors. To determine whether and to what extent discipline should be
imposed, the Nebraska Supreme Court considers: (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 offender gener-
ally, and (6) the offender’s present or future fitness to continue in the practice
of law.
Original action. Judgment of suspension.
John 	W. 	Steele, 	Assistant 	Counsel 	for 	Discipline, 	for
relator.
Shaun F. Downey, pro se.
heAviCAN, 	C.J., 	Wright, 	C oNNolly, 	gerrArd, 	StephAN,
mCC ormACk , and miller-lermAN, JJ.
per C uriAm.
The Counsel for Discipline of the Nebraska Supreme Court,
relator, charged attorney Shaun F. Downey with violations of
the Nebraska rules of Professional Conduct and his oath of
office as an attorney. Specifically, the formal charges alleged
that Downey violated the rule now codified at Neb. Ct. r.
of Prof. Cond. § 3-508.4 by committing a criminal act that
reflects adversely on the lawyer’s honesty, trustworthiness, or
fitness as a lawyer in other respects, or by engaging in conduct
that is prejudicial to the administration of justice. Downey’s
STATE Ex rEL. COUNSEL FOr DIS. v. DOWNEY 	749
Cite as 276 Neb. 749
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

answer generally admitted most of the allegations and admitted
others in part.
We appointed a referee who conducted a hearing on the for-
mal charges. In her report, the referee concluded that Downey’s
conduct violated § 3-508.4, as charged. The referee recom-
mended an indefinite period of suspension with no possibil-
ity of reinstatement until Downey successfully completes his
criminal probation in 2012 and maintains a voluntary period
of sobriety.
On February 21, 2008, the relator filed a motion for judg-
ment on the pleadings, requesting that this court accept the
referee’s recommendations and enter judgment thereon. The
motion was not opposed. We sustained the motion in part, find-
ing that the facts were as established in the referee’s report. We
ordered the case to proceed to oral argument on the issue of the
appropriate discipline to be imposed.
BACKGrOUND
Downey was admitted to the practice of law in Nebraska in
1994. he practiced in Mexico City, Mexico, for 5 years and
then worked as a staff attorney in a public defender’s office in
Nebraska for an additional 5 years. In May 2004, he began a
private practice in Nebraska, primarily consisting of criminal
defense work.
On or about March 18, 2006, Downey, his girlfriend, and
her 14-year-old daughter consumed alcohol in Downey’s apart-
ment. When the minor became intoxicated and unruly, Downey
“slapped” her on the buttocks and told her to stop. Based on
this incident, he was arrested and eventually charged with
three misdemeanors: third degree assault, contributing to the
delinquency of a minor, and procuring alcohol for a minor. he
agreed to appear in court in Douglas County on September 22
and plead guilty to third degree assault and procuring alcohol
for a minor.
however, Downey failed to appear because he was on a
self-described “cocaine binge.” he fled to Missouri. In mid-
October, he was arrested there after a high-speed vehicular
chase and charged with felony driving under the influence and
possession of a controlled substance. Upon arrest, he was taken
750 	276 NEBrASKA rEPOrTS

to a hospital. Downey left the hospital without the consent or
the agreement of the prosecutor, and a warrant was issued for
his arrest. Although he testified that he had made arrangements
to turn himself in on December 18, 2006, he was arrested on
the warrant prior to that time.
Downey pled guilty to Missouri felony charges of driving
under the influence of cocaine and possession of a controlled
substance. he was given a suspended sentence and placed in a
“‘drug-offender boot camp’” for 90 days. he completed that
program, and in 2007, he was placed on probation for 5 years
in Missouri. According to his testimony, should he violate his
probation, he faces two 8-year sentences in Missouri.
Downey was extradited to Nebraska in August 2007 and
pled guilty to third degree assault and procuring alcohol for a
minor. The charges were the result of the March 2006 incident
with his girlfriend’s daughter. he was sentenced to 90 days in
jail and served that sentence. he then returned to Missouri to
complete his probation.
Downey attends Narcotics Anonymous meetings daily. he
attends outpatient therapy 3 hours per week and meets every
other week with a counselor for individual therapy. he is sub-
ject to random drug tests but, at the time of the hearing, had
not yet been tested by the Missouri probation office. Downey
has been unable to find work in Missouri and believes that
there are attorneys in Nebraska who may be willing to employ
him in a paralegal capacity.
Downey readily admits to his drug and alcohol addictions.
he first went into rehabilitation in 1983 and testified that he
remained sober for about 7 years, although he was arrested for
driving under the influence in 1986. he resumed abusing drugs
and alcohol while attending law school in 1991 and continued
while he worked in Mexico. Downey was arrested for driving
under the influence in 2000 and went through a rehabilita-
tion program. he was arrested for driving under the influence
again in 2005 and obviously was using again by the time of
the March 2006 incident. he has been sober since December
2006, but has been incarcerated or on intensive probation
since then.
STATE Ex rEL. COUNSEL FOr DIS. v. DOWNEY 	751
Cite as 276 Neb. 749

At oral argument before this court, Downey stated that his
probation was transferred from Missouri to Nebraska in April
2008. he offered, and this court received, an exhibit docu-
menting that in February 2008, he executed an agreement with
the Nebraska Lawyers Assistance Program (NLAP), and that
since that time, he has performed all requirements of the con-
tract. It is the opinion of the director of NLAP that Downey is
committed to taking whatever actions are necessary to ensure
that he does not return to the addiction that led to his pre-
vious problems.
Based upon the evidence offered during the hearing, the
referee found that Downey’s conduct violated § 3-508.4, which
states in part that it is professional misconduct for a lawyer
to commit a criminal act that reflects adversely on the law-
yer’s honesty, trustworthiness, or fitness as a lawyer in other
respects, or to engage in conduct that is prejudicial to the
administration of justice. The referee recommended an indefi-
nite period of suspension with no opportunity for reinstatement
until Downey completes the terms of his probation in 2012
and maintains a voluntary period of sobriety. We granted the
relator’s motion for judgment on the pleadings in part, accept-
ing the referee’s findings of fact. We ordered the case to pro-
ceed to oral argument on the issue of the appropriate sanction.
Neither party assigns error in the findings or recommendations
of the referee.
ANALYSIS
[1] The basic issues in a disciplinary proceeding against a
lawyer are whether discipline should be imposed and, if so,
the type of discipline appropriate under the circumstances.1
here, because neither party disputes the referee’s finding that
discipline should be imposed, the only question before us
is whether the discipline should be that recommended by
the referee or something else. The possible sanctions include
(1) disbarment; (2) suspension for a fixed period of time;
1 State ex rel. Counsel for Dis. v. Dortch, 273 Neb. 667, 731 N.W.2d 594
(2007), citing State ex rel. Counsel for Dis. v. Petersen, 272 Neb. 975, 725
N.W.2d 845 (2007).
752 	276 NEBrASKA rEPOrTS

(3) probation in lieu of or subsequent to suspension, on such
terms as the court may designate; (4) censure and reprimand;
or (5) temporary suspension.2
[2,3] With respect to the imposition of attorney discipline
in an individual case, “‘each case justifying the discipline of
an attorney must be evaluated individually in light of the par-
ticular facts and circumstances of that case.’”3 For purposes
of determining the proper discipline of an attorney, this court
considers the attorney’s acts both underlying the events of the
case and throughout the proceeding.4
[4] The determination of an appropriate penalty to be
imposed on an attorney in a disciplinary proceeding also
requires consideration of any aggravating or mitigating fac-
tors. To determine whether and to what extent discipline
should be imposed, this court considers: (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 offender generally, and (6)
the offender’s present or future fitness to continue in the prac-
tice of law.5
Although there is no indication of harm to a client, Downey’s
offenses as described above are serious violations of the
Nebraska rules of Professional Conduct. Such egregious actions
must have a significant disciplinary consequence.6 however, it
is apparent that his drug and alcohol addiction was the primary
cause for Downey’s violation of the conduct rules and the near
destruction of his professional career. We are persuaded by the
record and Downey’s appearance before us that after a lifelong
struggle with his addiction, he has acknowledged responsibility
2 See State ex rel. Counsel for Dis. v. Dortch, supra note 1.
3 Id. at 670, 731 N.W.2d at 596-97, quoting State ex rel. Counsel for Dis. v.
Petersen, supra note 1. See, also, State ex rel. Counsel for Dis. v. Hubbard,
ante p. 741, 757 N.W.2d 375 (2008).
4 State ex rel. Counsel for Dis. v. Dortch, supra note 1.
5 See, State ex rel. Counsel for Dis. v. Hubbard, supra note 3; State ex rel.
Counsel for Dis. v. Dortch, supra note 1.
6 State ex rel. Counsel for Dis. v. Wintroub, 267 Neb. 872, 678 N.W.2d 103
(2004).
STATE Ex rEL. COUNSEL FOr DIS. v. DOWNEY 	753
Cite as 276 Neb. 749

for his actions. Downey has cooperated throughout the course
of the disciplinary proceedings, and he appears to have made
a sincere and productive effort to confront his addiction and
obtain the necessary professional treatment. All of these factors
are mitigators that we consider in determining the appropriate
discipline to impose.7
Based upon our consideration of all aggravating and miti-
gating factors, we agree with the conclusion of the referee
that a suspension is the appropriate sanction. We therefore
suspend Downey from the practice of law in the State of
Nebraska for an indefinite period effective upon the filing
of this opinion, with no possibility of reinstatement prior to
August 1, 2012. Upon application for reinstatement, Downey
shall have the burden of proving that he has not practiced
law during the period of suspension and that he has met the
requirements of Neb. Ct. r. § 3-316. In addition, reinstatement
shall be conditioned upon (1) Downey’s payment of all costs
of this action, which are hereby taxed to him; (2) Downey’s
compliance with the terms of his February 2008 contract with
NLAP’s monitoring program; (3) a showing by independent
third-party proof that Downey has continued active participa-
tion in a recovery program and has maintained abstinence
from the use of drugs and alcohol during the period of sus-
pension; (4) a showing that Downey possesses the current
legal competence to practice law in the State of Nebraska; (5)
a showing that Downey satisfactorily completed his criminal
probation; and (6) the submission by Downey and approval
by this court of a probation plan, whereby Downey’s recov-
ery program and his compliance with the Nebraska rules of
Professional Conduct would be monitored by NLAP and the
Counsel for Discipline for a period of time not less than 2
years following reinstatement.
JudgmeNt of SuSpeNSioN.
7 See State ex rel. NSBA v. Pullen, 260 Neb. 125, 615 N.W.2d 474 (2000).
754 	276 NEBrASKA rEPOrTS