State ex rel. Counsel for Dis. v. Wadman

S tate of nebraSka ex reL. counSeL for diScipLine
of the nebraSka S upreme court , reLator ,
v . brent r. wadman , reSpondent .
746 N.W.2d 681
Filed april 4, 2008. 	No. s-06-1213.
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 proceeding
against an attorney, a charge must be supported by clear and convincing evidence.
3. Disciplinary Proceedings. Violation of a disciplinary rule concerning the practice
of law is a ground for discipline.
4 	____. 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.
5. ____. Neb. Ct. r. of Discipline 4 (rev. 2004) provides that the following may be
considered by the Nebraska supreme Court as sanctions for attorney misconduct:
(1) disbarment; (2) suspension for a fixed period of time; (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.
6. ____. each case justifying the discipline of an attorney must be evaluated individu-
ally in light of the particular facts and circumstances of that case.
7. ____. 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.
8. ____. 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.
9. ____. the determination of an appropriate penalty to be imposed on an attorney
requires consideration of any aggravating and mitigating factors.
10. ____. Cumulative acts of attorney misconduct are distinguishable from isolated
incidents, therefore justifying more serious sanctions.
original action. Judgment of suspension.
John W. steele, assistant Counsel for Discipline, for relator.
No appearance for respondent.
heavican, 	C.J., 	wright, 	connoLLy, 	gerrard, 	S tephan,
mccormack, and miLLer -L erman, JJ.
state ex reL. CoUNseL For DIs. v. WaDMaN 	357
Cite as 275 Neb. 357
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

358 	275 Nebraska reports
per curiam.
INtroDUCtIoN
on october 31, 2006, formal charges were filed by the
office of the Counsel for Discipline, relator, against brent r.
Wadman, respondent. “additional Formal Charges” were filed
subsequently thereto. the collective formal charges effectively
set forth two counts that included allegations that respondent
violated the following provisions of the Code of professional
responsibility: Canon 1, Dr 1-102(a)(1) (violating disciplin-
ary rule) and Dr 1-102(a)(5) (engaging in conduct prejudi-
cial to administration of justice); Canon 6, Dr 6-101(a)(3)
(neglecting legal matter); and Canon 7, Dr 7-101(a)(2) (fail-
ing to carry out contract of employment for professional ser-
vices), as well as his oath of office as an attorney, Neb. rev.
stat. § 7-104 (reissue 1997). respondent’s answer disputed
certain of the allegations.
a referee was appointed, and on april 26, 2007, a referee’s
hearing was held. a total of 21 exhibits were received into
evidence, and respondent testified. the referee filed a report on
June 1. With respect to the formal charges, the referee found
that respondent’s conduct had violated Dr 1-102(a)(1) and
(5), Dr 6-101(a)(3), and Dr 7-101(a)(2). the referee did not
make any findings regarding the allegation that respondent’s
conduct had violated his oath of office as an attorney. With
regard to the discipline to be imposed, the referee recom-
mended that respondent be publicly reprimanded.
Neither relator nor respondent filed exceptions to the ref-
eree’s report. on June 11, 2007, relator filed a motion for
judgment on the pleadings under Neb. Ct. r. of Discipline
10(L) (rev. 2005). the motion was not opposed. on July 18,
we granted the motion for judgment on the pleadings in part,
ordering that the facts found by the referee were “accepted as
facts established in the case,” and we found that respondent had
violated the code provisions as alleged in the formal charges.
We ordered that the case should proceed to briefing and oral
argument limited to the issue of the appropriate discipline. We
now impose discipline as indicated below.

stateMeNt oF FaCts
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 on april 23, 2001. respondent was engaged
in the private practice of law in Nebraska from 2001 until early
2005. In early 2005, he closed his private practice and began
working as in-house counsel to a Nebraska business, where he
was still employed at the time of the referee’s hearing.
With regard to the allegations contained in the formal charges,
the referee found that respondent had been retained to represent
eloise Johnson in a personal injury case. respondent filed suit
on behalf of Johnson in the county court for Douglas County.
thereafter, respondent did not respond to a motion for sum-
mary judgment filed by the defendant, and he did not attend the
summary judgment hearing at which the county court entered
summary judgment in favor of the defendant and dismissed
Johnson’s personal injury action. respondent testified to the
effect that he had moved offices and that he did not receive
notice of a change in the date for the summary judgment hear-
ing until after the hearing had been held and the motion had
been granted. respondent admitted that although he advised
Johnson that the defendant had filed a motion for summary
judgment, he did not tell her that the motion had been sustained
or that her case had been dismissed.
With regard to the allegations contained in the “additional
Formal Charges,” the referee found that respondent had been
retained to represent thomas smith-perkins in a personal injury
case. although respondent did engage in some initial investiga-
tory work on behalf of smith-perkins, respondent did not take
any other action with regard to smith-perkins’ alleged personal
injury claim. although the “additional Formal Charges” allege
that smith-perkins’ personal injury claim was now time barred,
the referee’s report does not contain a finding with respect to
that allegation.
the referee’s report summarized respondent’s testimony at
the hearing wherein respondent effectively stated that he did
not feel competent to handle personal injury cases and that it
state ex reL. CoUNseL For DIs. v. WaDMaN 	359
Cite as 275 Neb. 357

360 	275 Nebraska reports
was for that reason that he closed his private practice in 2005
and began working as in-house counsel to a business. the
referee found that at the time of the referee hearing, there had
been “no further allegations of wrong doing [sic] since [respon-
dent] left private practice.”
although it was not specifically identified by the referee as
an aggravating factor, the referee found that respondent had
been the subject of two prior disciplinary proceedings generally
involving the neglect of three separate clients’ matters while
he was engaged in private practice. the prior proceedings had
resulted in respondent’s receiving private reprimands on May
17, 2005, and on april 12, 2006. the referee also found certain
facts that can be characterized as mitigating factors, including
respondent’s cooperation with relator during the disciplinary
proceedings, respondent’s admission of many of the allegations
contained within the formal charges and “additional Formal
Charges,” and respondent’s acknowledging responsibility for
his actions.
based upon the evidence offered during the hearing, the ref-
eree found by clear and convincing evidence that respondent’s
actions constituted a violation of the following provisions of
the Code of professional responsibility: Dr 1-102(a)(1) and
(5), Dr 6-101(a)(3), and Dr 7-102(a)(2). With respect to the
discipline that ought to be imposed, the referee recommended
that respondent be publicly reprimanded.
as noted above, no objections were filed to the referee’s
report. on June 11, 2007, relator filed a motion for judgment
on the pleadings. on July 18, this court granted the motion in
part, adopting the referee’s findings and setting for briefing and
oral argument the issue of the appropriate discipline.
assIgNMeNt oF error
the only issue before the court is the appropriate discipline
to be entered against respondent.
staNDarDs oF reVeW
[1,2] a proceeding to discipline an attorney is a trial de novo
on the record. State ex rel. Counsel for Dis. v. Pinard-Cronin,
274 Neb. 851, 743 N.W.2d 649 (2008). to sustain a charge in

a disciplinary proceeding against an attorney, a charge must be
supported by clear and convincing evidence. Id.
aNaLYsIs
Findings.
We 	note 	that 	all 	of 	respondent’s 	conduct 	at 	issue 	in
this case occurred prior to the september 1, 2005, effec-
tive date of the Nebraska rules of professional Conduct
and is, therefore, governed by the now-superseded Code of
professional responsibility.
[3] a proceeding to discipline an attorney is a trial de novo
on the record. State ex rel. Counsel for Dis. v. Pinard-Cronin,
supra. to sustain a charge in a disciplinary proceeding against
an attorney, a charge must be supported by clear and convinc-
ing evidence. Id. Violation of a disciplinary rule concerning the
practice of law is a ground for discipline. Id.
as previously noted, there were no exceptions filed to the
referee’s report in this case, and in an earlier order, this
court adopted the findings of the referee. given this record,
we find clear and convincing evidence that respondent’s con-
duct, set forth above, violated the following provisions of the
Code of professional responsibility: Dr 1-102(a)(1) and (5),
Dr 6-101(a)(3), and Dr 7-101(a)(2). We also conclude that
by virtue of respondent’s conduct, respondent has violated his
oath of office as an attorney. see § 7-104.
Factors Affecting Discipline to Be Imposed.
[4,5] We have stated that 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. State ex rel. Counsel for Dis. v. Dortch, 273
Neb. 667, 731 N.W.2d 594 (2007). Neb. Ct. r. of Discipline 4
(rev. 2004) provides that the following may be considered by
the court as sanctions for attorney misconduct: (1) disbarment;
(2) suspension for a fixed period of time; (3) probation in lieu
of or subsequent to suspension, on such terms as the court may
designate; (4) censure and reprimand; or (5) temporary suspen-
sion. see, also, rule 10(N).
[6,7] With respect to the imposition of attorney discipline in
an individual case, we have stated that “[e]ach case justifying
state ex reL. CoUNseL For DIs. v. WaDMaN 	361
Cite as 275 Neb. 357

362 	275 Nebraska reports
the discipline of an attorney must be evaluated individually in
light of the particular facts and circumstances of that case.”
State ex rel. Counsel for Dis. v. Petersen, 272 Neb. 975, 982,
725 N.W.2d 845, 851 (2007). to determine whether and to
what extent discipline should be imposed in a lawyer disci-
pline proceeding, this court considers the following 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. State ex rel. Counsel for Dis. v.
Dortch, supra.
[8,9] For purposes of determining the proper discipline of an
attorney, this court considers the attorney’s acts both underly-
ing the events of the case and throughout the proceeding. Id.
We have noted that the determination of an appropriate penalty
to be imposed on an attorney also requires consideration of any
aggravating and mitigating factors. Id.
Discipline to Be Imposed.
[10] the evidence in this case establishes that respondent
has neglected two clients’ legal matters, and this court is seri-
ously concerned with respondent’s repeated neglect of matters
entrusted to him. see State ex rel. Counsel for Dis. v. Sipple,
265 Neb. 890, 902, 660 N.W.2d 502, 512 (2003) (discussing
attorney’s prior private reprimands and stating that “[w]e have
held that cumulative acts of attorney misconduct are distin-
guishable from isolated incidents, therefore justifying more
serious sanctions”). In this connection, we take into consider-
ation and find troubling the facts that in addition to the present
proceedings, respondent has twice been previously privately
reprimanded for his conduct with respect to three clients’ mat-
ters and that he effectively misrepresented to Johnson the sta-
tus of her case. as mitigating factors, we note that respondent
cooperated with relator during the disciplinary proceedings,
admitted many of the allegations contained within the formal
charges and “additional Formal Charges,” and acknowledged
responsibility for his actions. the evidence also establishes that
respondent is no longer engaged in the private practice of law.

Upon due consideration of the record, the court finds that
respondent should be and hereby is suspended from the prac-
tice of law for a period of 6 months, effective immediately.
respondent shall comply with Neb. Ct. r. of Discipline 16 (rev.
2004), and upon failure to do so, he shall be subject to punish-
ment for contempt of this court. at the end of the 6-month
suspension period, respondent may apply to be reinstated to the
practice of law, provided that respondent has demonstrated his
compliance with rule 16, and further provided that relator has
not notified this court that respondent has violated any disci-
plinary rule during his suspension.
CoNCLUsIoN
We find by clear and convincing evidence that respon-
dent 	violated 	Dr 	1-102(a)(1) 	and 	(5), 	Dr 	6-101(a)(3),
Dr 7-101(a)(2), and his oath of office as an attorney. It is
the judgment of this court that respondent be suspended from
the practice of law for a period of 6 months. respondent shall
comply with rule 16, and upon failure to do so, he 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), rule
10(p), and Neb. Ct. r. of Discipline 23 (rev. 2001), within
60 days after an order imposing costs and expenses, if any, is
entered by this court.
J udgment of SuSpenSion .
S tate of nebraSka , appeLLee , v . danieL t.
rodriguez -torreS, appeLLant .
746 N.W.2d 686
Filed april 4, 2008. 	No. s-06-1351.
1. Jurisdiction: Appeal and Error. a jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. Judgments: Statutes: Appeal and Error. to the extent an appeal calls for
statutory interpretation or presents questions of law, an appellate court must
reach an independent conclusion irrespective of the determination made by the
court below.
state v. roDrIgUez-torres 	363
Cite as 275 Neb. 363