State ex rel. Counsel for Dis v. Cording

146 	285 NEBRASKA REPORTS
no legal basis for rescission, and to allow such a judgment to
stand would be untenable. Accordingly, although our reasoning
differs in some respects, we affirm the judgment of the Court
of Appeals.
A ffirmed.
StAte of NebrASkA ex rel. C ouNSel for diSCipliNe
of the NebrASkA Supreme C ourt, relAtor,
v. dAvid e. C ordiNg, reSpoNdeNt.
825 N.W.2d 792
Filed February 1, 2013. 	No. S-11-870.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. Disciplinary Proceedings: Appeal and Error. When no exceptions to the ref-
eree’s findings of fact are filed, the Nebraska Supreme Court may consider the
referee’s findings final and conclusive.
3. Disciplinary Proceedings. The basic issues in a disciplinary proceeding against
an attorney are whether the Nebraska Supreme Court should impose discipline
and, if so, the appropriate discipline under the circumstances.
4. ____. Any violation of the Nebraska Rules of Professional Conduct constitutes
grounds for discipline.
5. ____. Each attorney discipline case must be evaluated individually in light
of its particular facts and circumstances, and the Nebraska Supreme Court
considers the attorney’s acts underlying the events of the case and throughout
the proceedings.
6. ____. To determine whether and to what extent discipline should be imposed in
a lawyer discipline proceeding, the Nebraska Supreme Court considers the fol-
lowing factors: (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.
7. Disciplinary Proceedings: Attorney and Client. Among the major consider-
ations in determining whether a lawyer should be disciplined is maintenance of
the highest trust and confidence essential to the attorney client relationship.
8. Disciplinary Proceedings. The determination of an appropriate penalty to be
imposed on an attorney requires consideration of any aggravating or mitigat-
ing factors.
Original action. Judgment of public reprimand.
John W. Steele, Assistant Counsel for Discipline, for relator.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

STATE EX REL. COUNSEL FOR DIS. v. CORDING 	147
Cite as 285 Neb. 146
Lyle Joseph Koenig, of Koenig Law Firm, for respondent.
heAviCAN, C.J., Wright, C oNNolly, StephAN, mCC ormACk,
miller-lermAN, and CASSel, JJ.
per C uriAm.
INTRODUCTION
Following a bench trial in Lancaster County Court, David
E. Cording was found guilty of third degree sexual assault
and public indecency. He appealed, and the Lancaster County
District Court reversed the conviction for sexual assault but
affirmed the conviction for public indecency.
The Counsel for Discipline of the Nebraska Supreme Court
brought formal charges based on the underlying incident, which
involved respondent’s solicitation of an undercover police offi-
cer to engage in a sexual act in a public place. The formal
charges alleged a violation of respondent’s oath of office as
provided by Neb. Rev. Stat. § 7-104 (Reissue 2012) and the
Nebraska rules governing professional conduct, specifically
Neb. Ct. R. of Prof. Cond. § 3-508.4.
A hearing before a court-appointed referee was held on
February 7, 2012, and the referee filed his report on April 19,
2012. The referee found by clear and convincing evidence
that respondent’s conduct violated his oath of office as an
attorney and § 3-508.4(b). The referee recommended a pub-
lic reprimand.
Neither party took exception to the findings and recom-
mendations of the referee. Pursuant to Neb. Ct. R. § 3-310(L),
relator moved for judgment on the pleadings. This court
sustained the motion as to the facts and ordered the case to
proceed to briefing and oral argument limited to the issue
of discipline.
FACTS
In his report, the referee found that respondent was admit-
ted to the practice of law in the State of Nebraska on June
25, 1974. His former practice was generally in the areas of
real estate, estates, probate, wills, trusts, and some criminal
appointments. On occasion, he served as an acting county
attorney and as a hearing officer in probation revocation cases.

148 	285 NEBRASKA REPORTS
He was engaged in private practice until March 2010, but has
not engaged in the practice of law since that time.
On June 15, 2010, respondent was walking in a park near
Lincoln, Nebraska. An undercover police officer was pres-
ent, watching for illegal sexual activity occurring in the park.
The officer saw respondent and thought that respondent had
signaled him. The officer began following respondent, and the
two began a conversation. During the conversation, the officer
indicated that he was voluntarily going with respondent. As
they walked deeper into a wooded area of the park, the officer
indicated that he was shy and that he had not done anything
like this before. The indecent conduct followed.
Respondent’s illegal conduct took place in a heavily wooded
area of the park. There is nothing in the record to indicate that
members of the public were present or that anyone viewed
respondent’s conduct. Respondent was charged in Lancaster
County Court with third degree sexual assault and public inde-
cency. He was found guilty of both counts.
On appeal, the Lancaster County District Court found the
evidence failed to establish that the contact between respond-
ent and the officer was not consensual, as required by Neb.
Rev. Stat. §§ 28-320(1)(a) (Reissue 2008) and 28-318(8)
(Cum. Supp. 2012) for sexual assault. The district court
reversed the conviction for third degree sexual assault, but
affirmed the conviction for public indecency, which was a
Class II misdemeanor.1
Respondent had previously been convicted of sexual bat-
tery in the district court for Saline County, Kansas, on July
12, 2002, which was a misdemeanor.2 There is no record that
respondent has been disciplined previously or charged with
professional misconduct in the State of Nebraska.
On June 6, 2012, this court sustained relator’s motion for
judgment on the pleadings, limiting judgment to the facts.
We ordered the parties to brief the issue of the appropri-
ate discipline.
1 Neb. Rev. Stat. § 28-806(2) (Reissue 2008).
2 Kan. Stat. Ann. § 21-3517(b) (2007) (repealed by 2010 Kan. Laws, ch.
136, § 307).

STATE EX REL. COUNSEL FOR DIS. v. CORDING 	149
Cite as 285 Neb. 146
ASSIGNMENT OF ERROR
Neither party has taken exception to the referee’s report of
the facts. Neither party alleges any error.
STANDARD OF REVIEW
[1] A proceeding to discipline an attorney is a trial de novo
on the record.3
ANALYSIS
[2,3] When no exceptions to the referee’s findings of fact
are filed, we may consider the referee’s findings final and
conclusive.4 Because we granted judgment on the pleadings
as to the facts, the only issue before us is the appropriate dis-
cipline.5 The basic issues in a disciplinary proceeding against
an attorney are whether we should impose discipline and, if
so, the appropriate discipline under the circumstances.6 The
decision to impose discipline depends upon whether the attor-
ney’s conduct violated the Nebraska Rules of Professional
Conduct.7
Pursuant to § 7-104, every attorney admitted to the practice
of law in Nebraska takes the following oath: “You do solemnly
swear that you will support the Constitution of the United
States, and the Constitution of this state, and that you will
faithfully discharge the duties of an attorney and counselor,
according to the best of your ability.” Under § 3-508.4(b), it is
professional misconduct for a lawyer to “commit a criminal act
that reflects adversely on the lawyer’s honesty, trustworthiness
or fitness as a lawyer in other respects.” The question before
us is whether respondent’s criminal act of public indecency
violated his oath of office and § 3-508.4(b).
3 State ex rel. Counsel for Dis. v. Palik, 284 Neb. 353, 820 N.W.2d 862
(2012).
4 § 3-310(L); State ex rel. Counsel for Dis. v. Pierson, 281 Neb. 673, 798
N.W.2d 580 (2011).
5 See State ex rel. Counsel for Dis. v. Lopez Wilson, 283 Neb. 616, 811
N.W.2d 673 (2012).
6 Palik, supra note 3.
7 See Neb. Ct. R. § 3-303.

150 	285 NEBRASKA REPORTS
Neb. Ct. R. § 3-326(A) provides:
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.
[4,5] Any violation of the Nebraska Rules of Professional
Conduct constitutes grounds for discipline.8 Each attorney dis-
cipline case must be evaluated individually in light of its par-
ticular facts and circumstances, and this court considers the
attorney’s acts underlying the events of the case and through-
out the proceedings.9 This case is one of first impression in
Nebraska, in that there are no actions for attorney discipline
similar to the facts in this case.
In summary, respondent argues that his conduct did not
adversely reflect on his fitness as a lawyer because his actions
were not undertaken when he was acting in that capacity.
Respondent claims that the offense of public indecency was
not an offense relevant to the practice of law because it does
not involve violence, dishonesty, breach of trust, or serious
interference with the administration of justice. He asserts that
his actions, at best, would support nothing more than a find-
ing that he touched someone where the touching could be
observed by the public. At the time of the incident, there were
no other people present and no one was in a position to observe
the touching.
Under these circumstances, respondent argues there was
no connection between the alleged behavior and his honesty,
trustworthiness, and fitness as an attorney. There were two
isolated instances, years apart, in different states. At the hear-
ing before the referee, respondent testified that he was not
conducting any legal work and that he was not doing anything
8 See, id.; State ex rel. Counsel for Dis. v. Ellis, 283 Neb. 329, 808 N.W.2d
634 (2012).
9 See State ex rel. Counsel for Dis. v. Beltzer, 284 Neb. 28, 815 N.W.2d 862
(2012). See, also, Lopez Wilson, supra note 5.

STATE EX REL. COUNSEL FOR DIS. v. CORDING 	151
Cite as 285 Neb. 146
which would suggest he was a lawyer. He asserted that a law-
yer is not subject to disciplinary action simply because he has
committed a criminal act; the act itself must reflect adversely
on the lawyer’s honesty, trustworthiness, and fitness.
The referee concluded that the evidence was clear and
convincing that on June 15, 2010, respondent engaged in
lewd conduct in a public park where the conduct could have
been viewed by the public. The referee found by clear and
convincing evidence that this criminal act reflected adversely
on respondent’s fitness as a lawyer in other respects. He also
concluded that the record showed by clear and convincing evi-
dence that respondent violated his oath of office as an attorney
as provided by § 7-104.
We agree with the referee’s determination that the record
shows by clear and convincing evidence that respondent’s con-
duct violated his oath of office and § 3-508.4(b). Respondent’s
conviction of public indecency adversely reflects on his fitness
as a lawyer.
[6] The remaining issue is the nature and extent of the disci-
pline to be imposed.10 Neb. Ct. R. § 3-304 provides:
(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 desig-
nate; 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.
This court has recognized six factors that should be consid-
ered when determining the appropriate discipline: (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
10 See § 3-326(A).

152 	285 NEBRASKA REPORTS
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.11
Nature of Conduct.
The referee found that the actions of respondent in a public
park were far below the conduct that the Nebraska Supreme
Court and the public should expect from an attorney licensed
to practice law in the State of Nebraska. We agree.
The referee concluded that respondent’s conviction for sex-
ual battery in Kansas 10 years before the hearing should
not be considered in determining whether respondent violated
§ 3-508.4(b) because his conduct was not governed by the
Nebraska Rules of Professional Conduct. At the time of the
Kansas conviction, respondent’s conduct was governed by the
Code of Professional Responsibility. In the formal charges,
relator did not allege that respondent had violated the Code
of Professional Responsibility and no violation of the Code
of Professional Responsibility was at issue. We agree with the
referee’s conclusion.
Need to Deter Others and
Protect Public.
[7] This disciplinary action should serve as a warning
to all members of the Nebraska bar that this court will not
ignore or acquiesce in public conduct of this nature. Clearly,
there is a need to preserve the public trust and confidence
in members of the bar. “Among the major considerations in
determining whether a lawyer should be disciplined is main-
tenance of the highest trust and confidence essential to the
attorney-client relationship. As a profession, the bar continu-
ously strives to build and safeguard such trust and confidence
. . . .”12 Public indecency by an attorney does not promote trust
and confidence.
11 Beltzer, supra note 9.
12 State ex rel. NSBA v. Statmore, 218 Neb. 138, 143, 352 N.W.2d 875, 878
(1984).

STATE EX REL. COUNSEL FOR DIS. v. CORDING 	153
Cite as 285 Neb. 146
Attitude of Offender.
Respondent admitted that he was charged with third degree
sexual assault and public indecency but claimed he was not
guilty of the crimes charged. This indicates that respondent has
not taken full responsibility for his conduct. However, respond-
ent has been fully cooperative with the Counsel for Discipline
and appears to be sincerely remorseful.
Present or Future Fitness
to Practice Law.
The referee found that respondent’s misconduct reflected
adversely upon his fitness to practice law in other respects.
We agree. However, there were many letters in support of
respondent which describe him as a person of integrity, a
person of high character, very truthful, honorable, bright,
skilled, conscientious, and hardworking, who provided excel-
lent representation for his clients and served his clients and
his community well. Respondent’s contributions to his com-
munity include being past district governor of the Lions Club,
an active member of the Rotary Club, and a church organist
for over 40 years.
We also consider the propriety of a sanction with reference
to the sanctions imposed in prior similar cases.13 Since we have
no prior cases in Nebraska with the same or similar circum-
stances, we look to other states.
In State ex rel. Oklahoma Bar Ass’n v. Wilburn,14 the
Oklahoma Bar Association filed a complaint against a licensed
attorney pursuant to the rules governing disciplinary proceed-
ings. The bar alleged that the attorney was initially charged
with two counts of felony sexual battery for willfully and
intentionally touching the body of a woman over the age of
16 years in a lewd and lascivious manner without her con-
sent. There were two female victims. Both were employed as
security guards at the Tulsa County Courthouse at the time
of the incidents. The attorney had slapped one victim on the
13 See Beltzer, supra note 9.
14 State ex rel. Oklahoma Bar Ass’n v. Wilburn, 142 P.3d 420 (Okla. 2006).

154 	285 NEBRASKA REPORTS
buttocks. He slapped the other victim on the buttocks as well,
and also pressed his body against the buttocks of one of the
victims. Both charges were subsequently amended to the mis-
demeanor of outraging public decency, to which the attorney
pled guilty.
Rule 8.4 of the Oklahoma Rules of Professional Conduct
provides: “‘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.’”15 Rule 1.3 of the Rules Governing Disciplinary
Proceedings provides for “‘discipline for acts contrary to pre-
scribed standards of conduct.’”16
In Wilburn, the Professional Responsibility Tribunal recom-
mended a private reprimand. Contrary to the recommendation
of the tribunal, the Oklahoma Supreme Court found that a
public censure was the appropriate discipline. The public cen-
sure was not imposed to punish the attorney. The court had
previously considered proper discipline for lawyers accused
of sexually inappropriate conduct with clients and nonclients.
The court concluded it must also consider the deterrent effect
upon both the offending respondent and other lawyers contem-
plating similar conduct. It concluded that the public censure
was necessary and served to protect the public and advise
other members of the bar that inappropriate touching and
sexually suggestive gestures and remarks would not be toler-
ated, regardless of whether they seemed harmless, solicited,
or consensual.
Unlike 	respondent, 	the 	attorney’s 	conduct 	in 	Wilburn
occurred in a public courthouse while he was acting in his
capacity as a lawyer. Nevertheless, the need exists to advise
the public and members of the bar that public conduct such as
respondent’s will not be tolerated by this court.
In State ex rel. Oklahoma Bar Ass’n v. Garrett,17 there were
two incidents involving two nonclient female victims. Both
15 Id. at 421 n.2.
16 Id.
17 State ex rel. Oklahoma Bar Ass’n v. Garrett, 127 P.3d 600 (Okla. 2005).

STATE EX REL. COUNSEL FOR DIS. v. CORDING 	155
Cite as 285 Neb. 146
situations involved inappropriate touching. Two felonies were
charged and later reduced to misdemeanors, to which the attor-
ney pled guilty. The court ordered a public censure and a year’s
probation with conditions.
In State ex rel. Oklahoma Bar Ass’n v. Murdock,18 the
Oklahoma Bar Association filed a complaint based on conduct
that also resulted in a criminal charge. In the criminal case, the
attorney entered a plea admitting that, if believed by a jury,
the evidence would be sufficient to convict him of the misde-
meanor of “Outraging Public Decency.”19 In issuing a public
reprimand, the court stated that the “primary goals in imposing
discipline for attorney misconduct are: preservation of public
trust and confidence in the Bar by strict enforcement of the
profession’s integrity; protection of the public and the courts;
and deterrence of like behavior by other members of the Bar.”20
The court stated that “[e]ven when the subject attorney does
not need such deterrent to prevent continued misconduct, this
Court’s interest in explaining its expectations of professional
legal practice may necessitate a more public form of discipline
than that offered by private reprimand.”21
[8] The determination of an appropriate penalty to be
imposed on an attorney requires consideration of any aggravat-
ing or mitigating factors.22 In the case at bar, the referee found
as mitigating factors respondent’s good standing with the bar
and in the community, his service to the community and his
clients, his cooperation with the Counsel for Discipline, his
present and future fitness for the practice of law as shown
by letters written on his behalf, and the fact that no client
was injured. The length of time that has passed between his
conviction in Kansas and the current case was considered
18 State ex rel. Oklahoma Bar Ass’n v. Murdock, 236 P.3d 107 (Okla. 2010).
19 Id. at 110.
20 Id. at 113, citing State ex rel. Okl. Bar Ass’n v. Caldwell, 880 P.2d 349
(Okla. 1994).
21 Murdock, supra note 18, 236 P.3d at 113, citing State ex rel. Okla. Bar
Ass’n v. Erickson, 29 P.3d 550 (Okla. 2001).
22 Beltzer, supra note 9.

156 	285 NEBRASKA REPORTS
as a mitigating factor. We agree that these mitigating factors
are present, and we note that respondent appears to be sin-
cerely remorseful.
In recommending that respondent be disciplined by public
reprimand, the referee noted this was a case of first impression
in Nebraska, but that it appeared that acts of public indecency
in other jurisdictions typically resulted in public reprimands in
the absence of other aggravating factors. The referee concluded
that even if respondent did not need such a deterrent to prevent
continued misconduct, this court’s interest in explaining its
expectation of professional legal practice necessitated a more
public form of discipline than a private reprimand. We have
looked to attorney discipline cases in other jurisdictions, and
we agree with the referee’s conclusion.
Private Versus Public Reprimand.
Respondent argues that he should receive no more than a
private reprimand.
In State ex rel. Counsel for Dis. v. Murphy,23 we considered a
motion for reciprocal discipline against an attorney. In examin-
ing § 3-304, which provides what discipline may be considered
for attorney misconduct, we stated that we could not enter a
judgment of private reprimand. Section 3-304 permits a private
reprimand by a committee on inquiry or a disciplinary review
board. If a private reprimand is not issued and formal charges
are filed, this court must impose at least a public reprimand if
it imposes discipline.
CONCLUSION
For the reasons set forth above, we conclude that a public
reprimand must be imposed in order to deter other members of
the bar from engaging in such public misconduct and to main-
tain the reputation of the bar as a whole.
It is the judgment of this court that respondent should be
and hereby is publicly reprimanded. Respondent is directed
to pay costs and expenses in accordance with Neb. Rev. Stat.
23 State ex rel. Counsel for Dis. v. Murphy, 283 Neb. 982, 814 N.W.2d 107
(2012).

BROOK VALLEY LTD. PART. v. MUTUAL OF OMAHA BANK 	157
Cite as 285 Neb. 157
§§ 7-114 and 7-115 (Reissue 2012) and § 3-310(P) and Neb.
Ct. R. § 3-323(B) of the disciplinary rules within 60 days after
an order imposing costs and expenses, if any, is entered by
this court.
JudgmeNt of publiC reprimANd.
brook vAlley limited pArtNerShip, A NebrASkA limited
pArtNerShip, ANd brook vAlley ii, ltd, A NebrASkA
limited pArtNerShip, AppelleeS, v. mutuAl of omAhA
bANk, formerly kNoWN AS NebrASkA StAte bANk of
omAhA, A StAte bANkiNg iNStitutioN, ANd omAhA
fiNANCiAl holdiNgS, iNC., A NebrASkA CorporAtioN,
SuCCeSSor to midlANdS fiNANCiAl ServiCeS, iNC.,
A NebrASkA CorporAtioN, AppellANtS.
825 N.W.2d 779
Filed February 1, 2013. 	No. S-12-039.
1. Judgments: Appeal and Error. In a bench trial of a law action, the trial court’s
factual findings have the effect of a jury verdict, which an appellate court will
not disturb on appeal unless clearly wrong. And an appellate court does not
reweigh the evidence but considers the judgment in the light most favorable to
the successful party and resolves evidentiary conflicts in favor of the success-
ful party.
2. Prejudgment Interest: Appeal and Error. An appellate court reviews de novo
whether a court should award prejudgment interest.
3. Conversion: Property. Conversion lies only for serious interference with posses-
sory interests in personal property, not real property.
4. Conversion: Words and Phrases. Conversion is any unauthorized or wrongful
act of dominion exerted over another’s property which deprives the owner of his
property permanently or for an indefinite period of time.
5. Contracts: Ratification: Words and Phrases. Ratification is the acceptance of a
previously unauthorized contract.
6. Ratification: Agents. Ratification of an agent’s unauthorized acts may be made
by overt action or inferred from silence and inaction.
7. ____: ____. Retention of benefits secured by an agent’s unauthorized act with
knowledge of the source of such benefits and the means by which they were
obtained is a ratification of the agent’s act.
8. Ratification. Whether there has been a ratification is ultimately and ordinarily a
question of fact.
9. Ratification: Pleadings: Proof. Because ratification is an affirmative defense,
the burden of proving ratification rests on the party who pleaded it.