State ex rel. Counsel for Dis. v. Bouda

State of NebraSka ex rel . C ouNSel for D iSCipliNe
of the NebraSka Supreme C ourt, relator , v.
William p. bouDa ii, reSpoNDeNt.
806 N.W.2d 879
Filed December 16, 2011. 	No. S-11-005.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. ____. Failure to answer formal charges subjects a respondent to judgment on the
formal charges filed.
3. ____. The Nebraska Supreme Court evaluates each attorney discipline case in
light of its particular facts and circumstances, and considers the attorney’s acts
underlying the events of the case and throughout the proceedings.
4. ____. The Nebraska Supreme Court considers six factors in determining whether
and to what extent discipline should be imposed: (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 practice of law.
5. ____. Because cumulative acts of attorney misconduct are distinguishable from
isolated incidents, they justify more serious sanctions.
6. ____. Misappropriation of client funds is one of the most serious violations of
duty an attorney owes to clients, the public, and the courts, and typically war-
rants disbarment.
Original action. Judgment of disbarment.
Kent 	L. 	Frobish, Assistant 	Counsel 	for 	Discipline, 	for
relator.
No appearance for respondent.
heaviCaN, 	C.J., 	Wright, 	C oNNolly, 	gerrarD, 	StephaN,
mCC ormaCk , and miller-lermaN, JJ.
per C uriam.
NATURE OF CASE
The Counsel for Discipline of the Nebraska Supreme Court
filed formal charges against William P. Bouda II, a suspended
member of the Nebraska State Bar Association, alleging Bouda
violated his oath of office as an attorney and Neb. Ct. R. of
Prof. Cond. § 3-508.4(a), (b), and (c). Generally, the charges
alleged that Bouda neglected a client’s case, and then lied to
his client and stole from his employer in a failed attempt to
cover up the neglect. Bouda did not respond to the charges.
902 	282 NEBRASKA REPORTS
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www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

The Counsel for Discipline moved for judgment on the plead-
ings; we granted the motion and directed the parties to brief the
question of appropriate discipline. For the reasons that follow,
we disbar Bouda.
FACTS
Bouda was admitted to the practice of law in Nebraska in
1999.1 This is not his first disciplinary proceeding. Formal
charges were brought against him in a separate proceeding in
2008.2 In that case, the referee found that Bouda had falsely
represented to both opposing counsel and the district court that
he had the authority to settle a civil case. In fact, Bouda had
no such authority; instead, the truth was that the trial date for
the case had arrived but Bouda was unprepared for trial. Bouda
also misstated the status of the case in communicating with his
client.3 But the referee also found several mitigating factors,
such as a lack of a prior record of misconduct, marital dif-
ficulties, and cooperation with the Counsel for Discipline. We
suspended Bouda from the practice of law for 3 months.4
The present case involves comparable, but substantially
more severe, allegations of neglect and misrepresentation. Jeff
Finochiaro hired Bouda in January 2007 to defend him in a
lawsuit between LaFarge North America, Inc., and Maverick
Concrete and Piping Company, LLC (Maverick Concrete).
Finochiaro was a guarantor of Maverick Concrete and a defend-
ant in the suit. The court granted LaFarge North America’s
summary judgment motion around March 13, 2008, resulting
in a judgment of $179,757.21 against Maverick Concrete and
Finochiaro. Bouda was granted leave to file a third-party com-
plaint against two other entities, Double D Excavating, LLC,
and MCL, Inc., but never filed a complaint against either com-
pany. Neither company can now be sued on the claim because
the statute of limitations has run.
1 See State ex rel. Counsel for Dis. v. Bouda, 278 Neb. 380, 770 N.W.2d 648
(2009).
2 See id.
3 See id.
4 Id.
STATE Ex REL. COUNSEL FOR DIS. v. BOUDA 	903
Cite as 282 Neb. 902

After the summary judgment, Bouda made multiple mis-
representations to Finochiaro about the status of the lawsuit
and efforts to collect the judgment. Bouda told Finochiaro a
third-party complaint against Double D Excavating had been
filed, when it had not. He falsely said that he made a claim
against Double D Excavating’s bonding company and that the
claim was ready for payment. Bouda falsely represented that
the bonding company was in bankruptcy, but that the claim of
Finochiaro and Maverick Concrete was a priority claim that
was about to be paid. Then, he falsely told Finochiaro that the
bonding company was in liquidation in the State of New York
rather than bankruptcy, with Maverick Concrete as a preferred
claimant due $160,000.
Bouda used multiple documents to mislead Finochiaro. He
provided documents to back up his claim that the bonding
company was in liquidation and that Maverick Concrete was
a preferred claimant. He provided a document indicating that
an insurance company had made a $100,000 wire transfer to
LaFarge North America to partially pay Finochiaro’s liability,
when such payment was never made. In June 2010, Bouda
gave Finochiaro a copy of a $160,000 check purporting to be
a payment to LaFarge North America; that payment was never
made. He gave Finochiaro a copy of a letter from someone
supposedly connected with LaFarge North America stating that
payment had been received and that liens were being released
on Omaha, Nebraska, properties. No one at LaFarge North
America wrote such a letter. He gave Finochiaro a “‘Lien
Release — Satisfaction of Judgment,’” which supposedly had
been, but never was, filed with the Douglas County register of
deeds. Bouda also gave Finochiaro a false document suppos-
edly from LaFarge North America’s attorney saying that the
judgment against Finochiaro had been satisfied. And Bouda
provided a copy of a “‘Satisfaction of Judgment’” that had
supposedly been filed in district court when no such document
had been filed.
In addition to failing to file the third-party complaint, Bouda
told Finochiaro he would take care of an order for examination
of debtor issued to Finochiaro. Bouda failed to do so, and as a
result, a capias was issued for Finochiaro’s arrest. Bouda also,
904 	282 NEBRASKA REPORTS

after he was suspended in 2009, told Finochiaro that he was
authorized to practice law in Nebraska.
In September 2010, while working as a claims recovery spe-
cialist for an insurance company, Bouda caused the company
to issue a settlement check to a law firm for $160,000 in pay-
ment of Finochiaro’s debt to LaFarge North America. Bouda
was fired as soon as he admitted to the insurance company that
he had fraudulently issued the check to satisfy Finochiaro’s
judgment.
The Counsel for Discipline alleged these actions violated
Bouda’s oath of office and § 3-508.4(a), (b), and (c). Bouda
failed to respond to the charges, and the Counsel for Discipline
moved for judgment on the pleadings. The motion was sustained,
and the parties were ordered to brief the issue of discipline.
Bouda neither filed a brief nor appeared at oral argument.
ANALYSIS
[1,2] A proceeding to discipline an attorney is a trial de novo
on the record.5 Failure to answer the formal charges subjects a
respondent to judgment on the formal charges filed.6 Because
the motion for judgment on the pleadings was granted, the
only issue before us is the appropriate discipline.7 In attor-
ney discipline cases, the basic issues are whether discipline
should be imposed and, if so, the type of discipline under the
circumstances.8
[3,4] This court evaluates each attorney discipline case
in light of its particular facts and circumstances,9 and con-
siders the attorney’s acts underlying the events of the case
and throughout the proceedings.10 We consider six factors in
5 State ex rel. Counsel for Dis. v. Thew, 281 Neb. 171, 794 N.W.2d 412
(2011).
6 State ex rel. Counsel for Dis. v. Lechner, 266 Neb. 948, 670 N.W.2d 457
(2003).
7 State ex rel. Counsel for Dis. v. Samuelson, 280 Neb. 125, 783 N.W.2d 779
(2010).
8 Thew, supra note 5.
9 Id.
10 Samuelson, supra note 7.
STATE Ex REL. COUNSEL FOR DIS. v. BOUDA 	905
Cite as 282 Neb. 902

determining whether and to what extent discipline should be
imposed: (1) the nature of the offense, (2) the need for deter-
ring 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 fit-
ness to continue in the practice of law.11
[5] We have, in comparable cases, entered judgments of dis-
barment.12 Bouda’s conduct also warrants disbarment. Bouda
severely neglected legal matters entrusted to him, made mul-
tiple misrepresentations, and then falsified documents to cover
his misdeeds. And we have often said that because cumulative
acts of attorney misconduct are distinguishable from isolated
incidents, they justify more serious sanctions.13 Bouda has
previously been disciplined for making dishonest statements
and misleading a client, but continued his misconduct. We
note that several of the misdeeds underlying the present case
took place during and after Bouda’s previous disciplinary
proceedings.
[6] In addition, Bouda’s actions cost Finochiaro a potential
claim against a third party and put Finochiaro at risk of arrest.
And Bouda also stole from his employer to try to prevent dis-
covery of his neglect and deception. We have often said that
misappropriation of client funds is one of the most serious
violations of duty an attorney owes to clients, the public, and
the courts, and typically warrants disbarment.14 While Bouda’s
employer may not have technically been his “client” when he
stole from it, there is no ethical distinction to be made.15
11 See Thew, supra note 5.
12 See, e.g., Thew, supra note 5; State ex rel. Counsel for Dis. v. Coe, 271
Neb. 319, 710 N.W.2d 863 (2006); State ex rel. Counsel for Dis. v. Hart,
270 Neb. 768, 708 N.W.2d 606 (2005).
13 See State ex rel. Counsel for Dis. v. Switzer, 280 Neb. 815, 790 N.W.2d
433 (2010).
14 State ex rel. Counsel for Dis. v. Jones, 270 Neb. 471, 704 N.W.2d 216
(2005).
15 See, e.g., State ex rel. NSBA v. Rosno, 245 Neb. 365, 513 N.W.2d 302
(1994); State ex rel. Nebraska State Bar Assn. v. McConnell, 210 Neb. 98,
313 N.W.2d 241 (1981).
906 	282 NEBRASKA REPORTS

Finally, we note that because Bouda neither responded to the
Counsel for Discipline nor filed a pleading, we have no basis
for considering any factors that mitigate in his favor.16 Instead,
his failure to cooperate with the Counsel for Discipline and
respond to the charges at any point during this disciplinary
process indicates disrespect for this court’s disciplinary juris-
diction.17 Simply put, Bouda’s pattern of neglect and deception,
his theft from his employer, his recalcitrance and recidivism
in response to previous discipline, and his complete failure to
respond to the charges against him, demonstrate beyond any
reasonable dispute that he is unfit to practice law.
CONCLUSION
We find that Bouda should be and hereby is disbarred from
the practice of law in Nebraska, effective immediately. Bouda is
hereby ordered to comply with all terms of Neb. Ct. R. § 3-316
forthwith and shall be subject to punishment for contempt of
this court upon failure to do so. He is also 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 DiSbarmeNt.
Wright, J., not participating in the decision.
16 See Samuelson, supra note 7.
17 See id.
STATE Ex REL. COUNSEL FOR DIS. v. BOUDA 	907
Cite as 282 Neb. 902