State ex rel. Counsel for Dis. v. Swan

course in law office management and to repay the excessive
fees charged to Bryan, Wallace, and Sheldon.
V. CONCLUSION
We find by clear and convincing evidence that Wright violated
various provisions of the Code of Professional Responsibility
and Rules of Professional Conduct. It is the judgment of this
court that Wright be suspended from the practice of law for a
period of 9 months, effective immediately. Following that sus-
pension, Wright shall be placed on monitored probation for a
period of 2 years. In addition, Wright shall complete a course
in law office management.
Wright shall comply with Neb. Ct. R. § 3-316 and, upon
failure to do so, shall be subject to a punishment for contempt
of this court. At the end of his suspension period, Wright may
apply to be reinstated to the practice of law, provided that he
has paid restitution to Bryan, Wallace, and Sheldon; that he
has demonstrated his compliance with § 3-316; and, further,
that the Counsel for Discipline has not notified this court that
Wright has violated any disciplinary rule during his suspen-
sion. We also direct Wright to pay costs and expenses in accor-
dance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2007)
and Neb. Ct. R. §§ 3-310(P) and 3-323(B) within 60 days after
an order imposing costs and expenses, if any, is entered by
this court.
Judgment of suspension.
miller-lerman, J., not participating.
state of nebraska ex rel . C ounsel for disCipline
of the nebraska supreme C ourt, relator ,
v. harold titus swan, respondent.
764 N.W.2d 641
Filed May 8, 2009. 	No. S-08-110.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. Disciplinary Proceedings: Proof. To sustain a charge in a disciplinary proceed-
ing against an attorney, the charge must be supported by clear and convinc-
ing evidence.
728 	277 NeBRASkA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

3. Disciplinary Proceedings. each attorney discipline case must be evaluated
individually in light of its particular facts and circumstances, and requires the
consideration of any aggravating or mitigating factors.
4. ____. In an attorney discipline proceeding, an isolated incident not representing a
pattern of conduct is considered as a factor in mitigation.
5. ____. Continuing commitment to the legal profession and the community and
cooperation during disciplinary proceedings are mitigating factors in an attorney
discipline case.
6. ____. The propriety of a sanction must be considered with reference to the sanc-
tions imposed by the Nebraska Supreme Court in prior attorney discipline cases
presenting similar circumstances.
Original action. Judgment of public reprimand.
John 	W. 	Steele, 	Assistant 	Counsel 	for 	Discipline, 	for
relator.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
for respondent.
wright, 	gerrard, 	stephan, 	mCC ormaCk, 	and 	miller-
lerman, JJ.
per C uriam.
NATURe OF CASe
Harold Titus Swan was convicted in federal court of making
and delivering a writing containing a statement known to be
false. As a result of this conviction, Swan was charged with
violations of Canon 1, DR 1-102, and Canon 7, DR 7-102,
of the Code of Professional Responsibility (Code). Swan
appeals the referee’s conclusion that his conviction is clear
and convincing evidence sufficient to impose discipline under
the Code.
BACkGROUND
Swan has been licensed to practice law in the State of
Nebraska since September 1981. From 1983 to 2006, he served
on the board of directors of the First National Bank of Holdrege
(Bank). Swan estimated that he performed approximately 5 to
10 hours of legal work per month for the Bank. One of the
Bank’s customers was CLN enterprises (CLN), which operated
a grain elevator in Atlanta, Nebraska.
STATe ex ReL. COUNSeL FOR DIS. v. SWAN 	729
Cite as 277 Neb. 728

During the relevant time period, grain prices were at historic
highs, so farmers were looking to lock in the high prices for
crops in future years. Grain elevators across the country were
utilizing hedge-to-arrive (HTA) contracts to price grain for
future delivery. An HTA is a forward pricing contract whereby
the grain elevator hedges, on behalf of the farmers, the current
trading price at the Chicago Board of Trade so the farmers can
lock in that price, even though the farmers will not deliver the
grain until a future date. The overall contract price is adjusted
by the price of the grain at the time the farmer delivers.
The Bank loaned money to CLN based on these HTA con-
tracts. Unexpectedly, the price of corn continued to rise, which
decreased the value of the contracts. This required CLN to
make margin calls on the contracts. A margin call is a broker’s
demand on an investor using borrowed funds to deposit addi-
tional money or securities in the margin account so that the
account maintains a minimum value.
If CLN failed to make the margin call payments, it was
expected that the Chicago Board of Trade would liquidate
a sufficient number of the contracts to bring CLN’s account
up to the minimum required value. The result of this would
be that the farmers would lose the locked-in contract price.
Further, the elevator could “go under,” resulting in the farm-
ers’ having claims against the elevator or defaulting on their
own loans.
CLN borrowed money from the Bank to cover the margin
calls, and this cost was passed on to the farmers when they set-
tled the contracts by delivering the grain. CLN was ultimately
liable for only the interest on the money borrowed to cover the
margin calls.
By spring 1996, CLN was nearing its lending limit with
the Bank. exceeding the lending limit was considered to be
an unsafe and unsound banking practice, so the Bank’s loan
review officer proposed having the farmers borrow the money
from the Bank to cover their own margin calls and forward
the money to CLN to make the margin call payments. The
premise was the same as when CLN was borrowing the money
directly—the principal amount of the loan would be taken
out of the amount the farmers received when they delivered
730 	277 NeBRASkA RePORTS

the grain and CLN would be responsible for the interest on
the loans.
The practice of having the farmers borrow the money and
forward it to CLN enabled CLN to continue financing the mar-
gin calls without directly exceeding its lending limit with the
Bank. On April 8, 1996, Swan was asked to draft an addendum
to the HTA contracts that would outline how the margin calls
were going to be financed. Swan was told that the addendum
was needed because the individual farmers wanted assurances
that CLN would properly credit the farmers for the interest
paid to the Bank to maintain the margin calls.
Swan drafted the addendum, and CLN presented the adden-
dum to farmers who had signed HTA contracts with CLN and
who agreed to borrow money from the Bank to cover their own
margin calls. Due to the changes in grain prices, many of the
farmers lost money on the contracts. In turn, the Bank sued
some of the farmers on the loans used to make the margin calls.
Some of the farmers complained that CLN had misrepresented
the addendum to imply that they would not be personally liable
on the loan for any deficiency.
The Office of the Comptroller of the Currency investigated
the Bank’s actions in 1997. The comptroller concluded that the
Bank’s loans to the farmers should have been considered part
of CLN’s credit limit rather than separate lines of credit. A
second investigation in 2002 concluded that the Bank’s records
“‘did not reveal any clear attempt by prior management to
knowingly and deceptively hide the truth’” of the HTA loans.
However, there was a subsequent criminal investigation of the
Bank and its loan officers and principals which resulted in the
criminal indictment of Swan and others in the U.S. District
Court for the District of Nebraska.
Swan was originally indicted in a multimember conspiracy.
However, pursuant to a plea agreement, he pled guilty to a
misdemeanor charge related to his drafting of the addendum as
it related to one farmer. Swan pled guilty to a violation of 18
U.S.C. § 1018 (2006), which reads as follows:
§ 1018. Official certificates or writings
Whoever, being a public officer or other person autho-
rized by any law of the United States to make or give a
STATe ex ReL. COUNSeL FOR DIS. v. SWAN 	731
Cite as 277 Neb. 728

certificate or other writing, knowingly makes and delivers
as true such a certificate or writing, containing any state-
ment which he knows to be false, in a case where the
punishment thereof is not elsewhere expressly provided
by law, shall be fined under this title or imprisoned not
more than one year, or both.
The information filed in federal court alleged:
On or about April 8, 1996, in the District of Nebraska,
HAROLD TITUS SWAN, the defendant herein, being
an attorney licensed to practice law by the State of
Nebraska, and a Member of the Board of Directors of
the . . . Bank . . . , a national bank located in Holdrege,
Nebraska, and authorized by the law of the United
States to make and give writings, did knowingly make
and deliver as true such a writing, to wit, an Addendum
to [the HTA] Contract, which he knew to contain false
representations and statements, in that HAROLD TITUS
SWAN, authorized to act as an attorney for the . . . Bank
. . . , made and delivered the Addendum to [the HTA]
Contract, knowing the document would be used to facili-
tate nominee loans from farmers with [HTA] Contracts
for the benefit of [CLN,] d/b/a Atlanta elevator, Inc.,
a grain elevator located in Atlanta, Nebraska, by rep-
resenting in the Addendum that the farmer would not
be responsible for payment of the nominee loan, when
in truth and fact, SWAN knew the bank would attempt
to recover loan proceeds from farmers if [CLN] failed
to pay on the nominee loan, contrary to the terms of
the Addendum, and Swan deliberately avoided learning
the truth.
In 	violation 	of 	Title 	18, 	United 	States 	Code,
Section 1018.
At the disciplinary hearing, Swan submitted an affidavit
which included “exhibit B,” a one-page document titled “H.
Titus Swan’s Version of events,” which was a statement of
facts Swan provided to the government that he agreed were
true. The document included these statements:
Mr. Swan was aware of a high probability that the
Addendum would be used to facilitate nominee loans
732 	277 NeBRASkA RePORTS

from farmers with CLN/HTA contracts to benefit CLN . . .
and that if CLN . . . failed to repay the CLN/HTA related
notes, the Bank would seek repayment from those farm-
ers. Although Mr. Swan was aware that the Addendum
would likely be used to facilitate nominee loans and that
the Bank would seek payment from the farmers in the
event CLN did not pay the loans, Mr. Swan deliberately
avoided learning the truth of these matters. As a conse-
quence, the . . . Bank . . . thereafter sought repayment
of the loan proceeds from D&B Partnership when CLN
. . . was unable to repay the notes. D&B Partnership was
required to repay $62,500.00 on its notes to the . . . Bank
. . . .
Mr. Swan acknowledges that the circumstances and
his conduct constitute willful blindness with respect to
the written Addendum to the [HTA] contract. Mr. Swan’s
willful blindness and actions as a licensed attorney and
Director of the . . . Bank . . . constitute a false writ-
ing, in violation of 18 U.S.C. § 1018 as alleged in
the Information.
On October 9, 2007, the federal court sentenced Swan to
3 years’ probation, including 3 months on electronic home
monitoring. He was also ordered to attend a victim impact
class, perform 180 hours of community service, pay a fine of
$25,000, and make restitution in the amount of $110,000 to
two farmers.
ASSIGNMeNT OF eRROR
Swan assigns as error the referee’s finding that the Counsel
for Discipline was relieved of its burden of proof on whether
Swan committed acts that violated the Code because Swan pled
guilty to a federal criminal charge.
STANDARD OF ReVIeW
[1,2] A proceeding to discipline an attorney is a trial de novo
on the record.1 To sustain a charge in a disciplinary proceeding
1 State ex rel. Counsel for Dis. v. Hubbard, 276 Neb. 741, 757 N.W.2d 375
(2008).
STATe ex ReL. COUNSeL FOR DIS. v. SWAN 	733
Cite as 277 Neb. 728

against an attorney, the charge must be supported by clear and
convincing evidence.2
ANALYSIS
The issue is whether Swan’s criminal conviction can be a
basis for attorney discipline. Pursuant to Neb. Ct. R. § 3-326,
for purposes of disciplining an attorney, a criminal conviction
is conclusive evidence of the attorney’s conduct that is the
subject of the disciplinary action. Swan argues that the referee
erred in considering only the elements of the crime of which
he was convicted in determining whether he violated the Code.
He claims that the referee should have examined the addendum
prepared by Swan in analyzing whether his underlying conduct
violated the Code.
The Code governs all attorney conduct occurring before
September 1, 2005, and the Nebraska Rules of Professional
Conduct (Rules) govern attorney conduct occurring after that
date. The disciplinary action at bar was commenced as a result
of Swan’s plea of guilty to criminal charges in federal court
on July 18, 2007. The federal conviction was based on Swan’s
conduct in 1996 and, therefore, would be governed by the
Code. Although the charges and the referee’s findings cited the
Code, Swan addressed the issues using both the Rules and the
Code almost interchangeably and the Counsel for Discipline
presented arguments using only the Rules.
We conclude that it is Swan’s 1996 conduct that is subject
to discipline; therefore, the Code governs this action. However,
we agree with the parties that the outcome in this case would
be the same under both the Code and the Rules. The relevant
portions of the Code are:
DR 1-102 Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
. . . .
(3) 	engage 	in 	illegal 	conduct 	involving 	moral
turpitude.
2 State ex rel. Counsel for Dis. v. Wadman, 275 Neb. 357, 746 N.W.2d 681
(2008).
734 	277 NeBRASkA RePORTS

(4) engage in conduct involving dishonesty, fraud,
deceit, or misrepresentation.
. . . .
DR 7-102 Representing a Client Within the Bounds of
the Law.
(A) In his or her representation of a client, a lawyer
shall not:
. . . .
(3) Conceal or knowingly fail to disclose that which
the lawyer is required by law to reveal.
. . . .
(5) knowingly make a false statement of law or fact.
. . . .
(7) Counsel or assist a client in conduct that the lawyer
knows to be illegal or fraudulent.
The Counsel for Discipline filed charges against Swan
on January 31, 2008, alleging violations of DR 1-102 and
DR 7-102 of the Code based on Swan’s federal court con-
viction. The Counsel for Discipline relied on § 3-326(A),
which states:
For the purposes of Inquiry of a Complaint or Formal
Charges filed as a result of a finding of guilt of a crime,
a certified copy of a judgment of conviction consti-
tutes conclusive evidence that the attorney committed the
crime, and the sole issue in any such Inquiry should be
the nature and extent of the discipline to be imposed.
In his report, the referee initially found that § 3-326(A)
relieved the Counsel for Discipline from the burden of prov-
ing by clear and convincing evidence that Swan violated
the Code and that the only matter to decide was the proper
discipline.
Swan’s plea of guilty to the elements of the crime described
in 18 U.S.C. § 1018 is conclusive evidence of his conduct,
which the referee found to be clear and convincing evidence
that Swan violated DR 1-102 and DR 7-102 of the Code. The
information charged that Swan
did knowingly make and deliver as true . . . an Addendum
to [the HTA] Contract, which he knew to contain false
representations and statements . . . knowing the document
STATe ex ReL. COUNSeL FOR DIS. v. SWAN 	735
Cite as 277 Neb. 728

would be used to facilitate nominee loans from farm-
ers with [HTA] Contracts for the benefit of [CLN] by
representing in the Addendum that the farmer would not
be responsible for payment of the nominee loan, when
in truth and fact, SWAN knew the bank would attempt
to recover loan proceeds from farmers if [CLN] failed
to pay on the nominee loan, contrary to the terms of the
Addendum . . . .
The conduct described above is clear and convincing evi-
dence of misrepresentation, in violation of DR 1-102(A)(4),
and the making of a false statement of fact, in violation of
DR 7-102(A)(5).
We have relied on criminal convictions as evidence of a
violation of the Code in prior attorney disciplinary cases. In
State ex rel. NSBA v. Duchek,3 an attorney pled guilty to one
count of willful failure to file an income tax return in the U.S.
District Court for the District of Nebraska. The Nebraska State
Bar Association filed disciplinary charges against the attorney
“in connection with the charges filed against him in the U.S.
District Court.”4 We found that the attorney’s willful failure
to file an income tax return constituted misconduct involving
moral turpitude and was a violation of the Code.5
In State ex rel. NSBA v. Steier,6 the attorney was convicted of
giving an illegal gratuity to a public official, a federal felony.
We stated that “[t]he conviction evidences conduct that consti-
tutes a violation of Canon 1, DR 1-102(A)(1), (3), and (6), of
the Code of Professional Responsibility and a violation of his
oath as an attorney.”7
In State ex rel. NSBA v. Dolan,8 the Committee on Inquiry of
the First Disciplinary District filed charges against an attorney
after he was found guilty in federal court of bankruptcy fraud
3 State ex rel. NSBA v. Duchek, 224 Neb. 777, 401 N.W.2d 484 (1987).
4 Id. at 777, 401 N.W.2d at 485.
5 Duchek, supra note 3.
6 State ex rel. NSBA v. Steier, 246 Neb. 584, 520 N.W.2d 779 (1994).
7 Id. at 584, 520 N.W.2d at 780.
8 State ex rel. NSBA v. Dolan, 255 Neb. 44, 581 N.W.2d 892 (1998).
736 	277 NeBRASkA RePORTS

and conspiracy to commit bankruptcy fraud. The committee
alleged that the attorney’s criminal conviction violated his oath
of office as an attorney and DR 1-102(A)(1), (3), and (5) of the
Code. We agreed and disbarred the attorney.
In the case at bar, by pleading guilty to the federal offense,
Swan admitted to the criminal conduct described in the infor-
mation. Section 3-326(A) permits the Counsel for Discipline
to consider Swan’s conviction as conclusive evidence that he
committed the federal crime. Such conduct may be consid-
ered as evidence when determining whether Swan violated the
Code. Accordingly, the referee found by clear and convincing
evidence that Swan’s criminal conduct violated DR 1-102 and
DR 7-102. We agree with the referee’s findings.
[3] After determining that an attorney has violated the Code
or the Rules, the remaining issues in a disciplinary proceeding
against an attorney are whether discipline should be imposed
and, if so, the type of discipline appropriate under the cir-
cumstances.9 each attorney discipline case must be evaluated
individually in light of its particular facts and circumstances,
and requires the consideration of any aggravating or mitigat-
ing factors.10
[4,5] In an attorney discipline proceeding, an isolated inci-
dent not representing a pattern of conduct is considered as a
factor in mitigation.11 Continuing commitment to the legal pro-
fession and the community and cooperation during disciplinary
proceedings are also mitigating factors.12
[6] The actions that prompted this proceeding occurred 13
years ago, and the evidence indicates that this was an isolated
incident in Swan’s 27-year legal career. Additionally, Swan
offered many letters of support from members of the bar and
9 See State ex rel. Counsel for Dis. v. Davis, 276 Neb. 158, 760 N.W.2d 928
(2008).
10 Id.
11 State ex rel. Counsel for Dis. v. Mills, 267 Neb. 57, 671 N.W.2d 765
(2003).
12 See, State ex rel. Special Counsel for Dis. v. Sivick, 264 Neb. 496, 648
N.W.2d 315 (2002); State ex rel. NSBA v. Frank, 262 Neb. 299, 631
N.W.2d 485 (2001).
STATe ex ReL. COUNSeL FOR DIS. v. SWAN 	737
Cite as 277 Neb. 728

others in his community attesting to his character and integrity
as a lawyer as well as his positive involvement in the com-
munity. The Counsel for Discipline noted that Swan assisted
the banking authorities in sorting out the confusion caused
by the Bank’s questionable lending practices and cooperated
during this disciplinary proceeding. Although the propriety of
a sanction must be considered with reference to the sanctions
imposed by this court in prior cases presenting similar circum-
stances,13 the unique facts of this case are unlike any other case
we have considered.
Considering all of the mitigating circumstances in this
case, we agree with the referee that a public reprimand is
appropriate.
CONCLUSION
Based on the record in this case, we conclude that Swan
violated DR 1-102 and DR 7-102 of the Code. It is the judg-
ment of this court that Swan should be, and hereby is, publicly
reprimanded for conduct in violation of the Code. Swan is
directed to pay costs and expenses in accordance with Neb.
Rev. Stat. §§ 7-114 and 7-115 (Reissue 2007) and Neb. Ct. R.
§§ 3-310(P) and 3-323 within 60 days after an order imposing
costs and expenses, if any, is entered by this court.
Judgment of publiC reprimand.
heaviCan, C.J., and C onnolly, J., not participating.
13 See Frank, supra note 12.
state of nebraska , appellee , v.
James l. branCh , appellant.
764 N.W.2d 867
Filed May 8, 2009. 	No. S-08-781.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
738 	277 NeBRASkA RePORTS