State ex rel. Counsel for Dis v. Switzer

purposes of § 108(c)(2), the County received notice of the stay’s
termination in March 2002. Under § 108(c)(2), the County had
30 days to file its foreclosure petition, but the County did not
file the petition until July 2002. Thus, the County’s petition was
untimely. The district court did not err in granting the Bargers’
motion for summary judgment.
affiRmed .
heavican, C.J., not participating in the decision.
state of nebRaska ex Rel . counsel foR disciPline
of the nebRaska suPReme couRt , RelatoR, v .
william l. switzeR, JR., ResPondent .
750 N.W.2d 681
Filed June 13, 2008. 	No. S-07-182.
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 pro-
ceeding against an attorney, a charge must be supported by clear and convinc-
ing evidence.
3. Disciplinary Proceedings. Violation of a disciplinary rule concerning the practice
of law is a ground for discipline.
4. Disciplinary Proceedings: Appeal and Error. When no exceptions to the ref-
eree’s findings of fact are filed by either party in an attorney discipline proceeding,
the Nebraska Supreme Court may, in its discretion, consider the referee’s findings
final and conclusive.
5. Disciplinary Proceedings. The basic issues in a disciplinary proceeding against an
attorney are whether discipline should be imposed and, if so, the type of discipline
appropriate under the circumstances.
6. ____. each attorney discipline case must be evaluated individually in light of its
particular facts and circumstances.
7. ____. 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. The determination of an appropriate
penalty to be imposed on an attorney in a disciplinary proceeding also requires the
consideration of any aggravating or mitigating factors.
Original action. Judgment of suspension.
kent 	L. 	Frobish, 	Assistant 	Counsel 	for 	discipline, 	for
relator.
STATe ex reL. COUNSeL FOr dIS. v. SWITzer 	881
Cite as 275 Neb. 881
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

882 	275 NeBrASkA rePOrTS
William L. Switzer, Jr., pro se.
heavican, C.J., wRight, connolly, geRRaRd, stePhan, and
milleR-leRman, JJ.
P eR cuRiam.
INTrOdUCTION
The office of the Counsel for discipline of the Nebraska
Supreme Court filed formal charges against respondent, William
L. Switzer, Jr. After a formal hearing, the referee concluded that
Switzer had violated the Code of Professional responsibility,
the Nebraska rules of Professional Conduct, this court’s disci-
plinary rules, and his oath of office as an attorney, and recom-
mended a suspension of 1 year. While we adopt the findings of
the referee, we do not accept the discipline recommended by the
referee. We instead impose discipline as indicated below.
FACTS
On February 22, 2007, formal charges were filed by the
office of the Counsel for discipline against Switzer, alleg-
ing that Switzer had violated the following provisions of the
Code of Professional responsibility: Canon 1, dr 1-102(A)(1)
(violating disciplinary rule), dr 1-102(A)(4) (engaging in con-
duct involving dishonesty, fraud, deceit, or misrepresentation),
dr 1-102(A)(5) (engaging in conduct prejudicial to adminis-
tration of justice), and dr 1-102(A)(6) (engaging in any other
conduct adversely reflecting upon his fitness to practice law);
Canon 6, dr 6-101(A)(3) (neglecting legal matter entrusted to
him); Canon 7, dr 7-101(A)(2) (failing to carry out contract
of employment) and dr 7-101(A)(3) (prejudicing or dam-
aging his client during course of professional relationship);
dr 7-102(A)(3) (concealing or knowingly failing to disclose
that which lawyer is required by law to reveal); Canon 9,
dr 9-102(A)(1) and (2) (failing to preserve identity of client
funds), dr 9-102(B)(3) (failing to maintain complete record
of client funds and to render appropriate accounting), and
dr 9-102(B)(4) (failing to promptly pay or deliver client funds
to client). The formal charges also alleged that Switzer violated
the following provisions of Neb. Ct. r. of Prof. Cond. (rev.
2005): rule 8.4(a) (violating or attempting to violate Nebraska

rules of Professional Conduct), 8.4(c) (engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation), and
8.4(d) (engaging in conduct prejudicial to administration of jus-
tice), as well as his oath of office as an attorney.1 In his answer,
Switzer disputed these allegations.
A referee’s hearing was held on August 30, 2007. Switzer,
acting pro se, testified at the hearing. In addition, 42 exhibits
were introduced. The record in this case reveals the following
facts: Switzer was retained on or about March 23, 2005, by Lori
Carney and Charles daubs. The next day, March 24, Carney
sent to Switzer a check for $500 as an advance fee payment.
Switzer agreed to draw up and file the necessary paperwork to
have Carney and daubs appointed as coguardians and coconser-
vators for their mother, Marion daubs (Marion).
Meanwhile, on March 31, 2005, unbeknownst to Carney and
daubs, Marion signed a power of attorney naming Mark Milone
as her attorney in fact. Previously, Carney had held Marion’s
power of attorney. Marion had a stroke on April 2, which appar-
ently gave effect to the power of attorney.
Milone notified Carney on April 4, 2005, that her appoint-
ment had been revoked and that he now held Marion’s power
of attorney. On April 8, Milone notified Switzer by letter of
Milone’s appointment. In that letter, Milone indicated that
he was aware that Switzer had been retained to commence a
guardianship-conservatorship action. Milone requested that he
be notified of the commencement of any such action.
On April 11, 2005, Carney and daubs met with Switzer
regarding the guardianship-conservatorship. Carney testified that
as of that date, Switzer was aware that Milone held Marion’s
power of attorney. On April 12, Switzer filed an ex parte emer-
gency petition for appointment of temporary coguardians and
coconservators. This petition failed to list Milone as an inter-
ested party, nor was the judge notified of the power of attorney
held by Milone. The petition was granted.
When Milone learned that the petition was filed and granted,
he filed a petition to terminate the temporary coguardianship
and coconservatorship. That petition was granted on April 15,
1 See Neb. rev. Stat. § 7-104 (reissue 1997).
STATe ex reL. COUNSeL FOr dIS. v. SWITzer 	883
Cite as 275 Neb. 881

884 	275 NeBrASkA rePOrTS
2005. Switzer was notified that same day that the guardianship-
conservatorship 	had 	been 	terminated; 	he 	failed 	to 	notify
Carney or daubs. Carney was notified of the termination on
April 19.
Subsequent to this notification, Carney and daubs unsuc-
cessfully attempted to contact Switzer on at least four separate
occasions. Carney testified that in one instance, she waited on
the telephone line for an hour to allow Switzer to talk with her
when he was free. At the hearing before the referee, Switzer
acknowledged that he failed Carney and daubs, stating that he
“did not do what [he] was supposed to do” and that he realized
that he “absolutely” should have communicated with them bet-
ter than he did.
On May 3, 2005, daubs wrote to Switzer to terminate the
attorney-client relationship. In his letter, daubs requested an
accounting of services rendered, as well as the return of the
unused portion of the $500 retainer. According to evidence
presented at the hearing, an accounting was never provided
nor did Switzer produce any evidence regarding any portion of
the retainer.
Carney and daubs then retained new counsel. On May 5,
2005, this counsel contacted Switzer and requested a copy of
the file. Such was never provided to new counsel.
On december 13, 2005, the Counsel for discipline received
a letter from Carney regarding Switzer’s representation. The
Counsel for discipline forwarded the letter to Switzer for
his response. On January 10, 2006, Switzer responded to the
letter, noting that the file was in storage, but that he would
have it retrieved. In the letter, Switzer indicated the fact that
Milone held Marion’s power of attorney was never communi-
cated to him. Switzer did not address his failure to communicate
with Carney and daubs after the guardianship-conservatorship
was terminated.
despite indicating that he would respond further once the file
had been retrieved, and despite the fact that additional letters
were sent to him from the Counsel for discipline on February
22 and March 22, 2006, no additional response was received.
The matter was upgraded to a formal grievance on April 13;
Switzer’s response was received on April 18.

The April 18, 2006, response read in full: “I have received
your packet of documents and enclose in response my copies
of letters to you. The last letter was dated March 30, 2006. I
believe that I have responded to your inquiries. Please let me
know if you need further information.”
enclosed with this letter was a letter dated March 30, 2006,
addressed to the Counsel for discipline. The letter stated in
part that “[e]nclosed is a copy of the letter mentioned in my
last communication to you.” enclosed was a letter from Carney
and daubs’ new counsel requesting the file—Switzer had indi-
cated in his January 10 letter that he would forward this letter.
However, the Counsel for discipline denied receiving any com-
munication from Switzer dated March 30, 2006. In response to
a question by the referee with regard to the March 30 and April
18 correspondence, Switzer admitted that the March 30 letter
was a “fabrication.”
The Counsel for discipline again contacted Switzer on May
12, 2006, to ask a number of followup questions related to
Switzer’s failure to communicate with Carney and daubs and
his failure to provide a copy of the relevant file to new counsel,
as well as questions related to his billing with regard to the
Carney/daubs representation. A followup letter was sent on
June 7. Switzer was eventually reached by telephone on June
20. Switzer stated that he had not received the May and June
letters because they had been sent to an incorrect address. The
record shows that the address was, in fact, incorrect, but that
all previous correspondence had also been sent to the techni-
cally incorrect address and had been received. The Counsel for
discipline indicated that neither the May 12 letter nor the June
7 letter was returned as undeliverable.
In any event, the May and June 2006 letters were faxed to
Switzer, who still failed to respond. The Counsel for discipline
again telephoned Switzer on August 3; Switzer indicated that a
response letter had been written, but not yet sent. The Counsel
for discipline received a letter from Switzer on August 8. The
letter was postmarked August 7.
In that letter, Switzer again stated that at the time he filed
the petition for guardianship-conservatorship, he was not aware
that Milone held Marion’s power of attorney. Switzer failed
STATe ex reL. COUNSeL FOr dIS. v. SWITzer 	885
Cite as 275 Neb. 881

886 	275 NeBrASkA rePOrTS
to provide any evidence that he had deposited or withdrawn
Carney’s check. Switzer also claimed that a computer malfunc-
tion had prevented him from retrieving the billing statement
prepared in the matter.
The referee issued his report on October 11, 2007. In that
report, the referee noted that “Switzer’s unwillingness to respond
properly and adequately carried on following the appointment of
the undersigned as referee.” The referee stated that he had asked
Switzer to file a “proper Answer, which . . . Switzer promised
to do, but didn’t do. Also . . . Switzer indicated that he would
conduct discovery, which he never did.” The referee then con-
cluded Switzer’s conduct was in violation of dr 1-102(A)(1),
(4), (5), and (6); dr 6-101(A)(3); dr 7-101(A)(2) and (3);
dr 7-102(A)(3); dr 9-102(A)(1) and (2), and dr 9-102(B)(3)
and (4) of the Code of Professional responsibility; rule 8.4 of
the Nebraska rules of Professional Conduct; Neb. Ct. r. of
discipline 9(e) (rev. 2001); and his oath of office as an attor-
ney. The referee recommended that Switzer be temporarily
suspended from the practice of law for a period of 1 year. No
exceptions to this report were filed. On October 29, the Counsel
for discipline filed a motion for judgment on the pleadings,
requesting that this court accept the referee’s recommendation
and enter judgment thereon.
ANALYSIS
As an initial matter, we note that some of Switzer’s conduct
now at issue occurred prior to September 1, 2005, and is governed
by the now-superseded Code of Professional responsibility,
while other conduct occurred on or after September 1, the effec-
tive date of the Nebraska rules of Professional Conduct, and is
therefore governed by those rules.
[1-3] A proceeding to discipline an attorney is a trial de novo
on the record.2 To sustain a charge in a disciplinary proceeding
against an attorney, a charge must be supported by clear and
2 State ex rel. Counsel for Dis. v. Petersen, 272 Neb. 975, 725 N.W.2d 845
(2007).

convincing evidence.3 Violation of a disciplinary rule concern-
ing the practice of law is a ground for discipline.4
[4] As noted, neither party filed any written exceptions to
the referee’s report. Pursuant to Neb. Ct. r. of discipline 10(L)
(rev. 2005), the Counsel for discipline filed a motion for judg-
ment on the pleadings. When no exceptions to the referee’s
findings of fact are filed by either party in an attorney discipline
proceeding, the Nebraska Supreme Court may, in its discretion,
consider the referee’s findings final and conclusive.5 Based upon
the undisputed findings of fact in the referee’s report, which
we consider to be final and conclusive, we conclude the formal
charges are supported by clear and convincing evidence. We
specifically conclude that Switzer has violated dr 1-102(A)(1),
(4), (5), and (6); dr 6-101(A)(3); dr 7-101(A)(2) and (3);
dr 7-102(A)(3); dr 9-102(A)(1) and (2), and dr 9-102(B)(3)
and (4) of the Code of Professional responsibility; rule 8.4 of
the Nebraska rules of Professional Conduct; and his oath of
office as an attorney. Accordingly, we grant in part the Counsel
for discipline’s motion for judgment on the pleadings.
[5] We have stated that the basic issues in a disciplinary
proceeding against an attorney are whether discipline should
be imposed and, if so, the type of discipline appropriate under
the circumstances.6 Neb. Ct. r. of discipline 4 (rev. 2004) pro-
vides that the following may be considered as discipline for
attorney misconduct:
(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 designate; or
(4) Censure and reprimand by the Court; or
(5) Temporary suspension by the Court; or
3 Id.
4 Id.
5 State ex rel. Counsel for Dis. v. Wickenkamp, 272 Neb. 889, 725 N.W.2d 811
(2007).
6 State ex rel. Counsel for Dis. v. Petersen, supra note 2.
STATe ex reL. COUNSeL FOr dIS. v. SWITzer 	887
Cite as 275 Neb. 881

888 	275 NeBrASkA rePOrTS
(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.7
[6,7] With respect to the imposition of attorney discipline
in an individual case, we have stated that each attorney dis-
cipline case must be evaluated individually in light of its
particular facts and circumstances.8 For purposes of determin-
ing the proper discipline of an attorney, this court considers
the attorney’s acts both underlying the events of the case and
throughout the proceeding.9 The determination of an appropri-
ate penalty to be imposed on an attorney in a disciplinary pro-
ceeding also requires the consideration of any aggravating or
mitigating factors.10
We have considered the referee’s report and recommenda-
tion, the findings of which have been established by clear and
convincing evidence and the applicable law. In his report, the
referee recommended that with respect to the discipline to be
imposed, Switzer should be suspended from the practice of
law for 1 year. We disagree with the referee’s recommendation,
and to the extent that the Counsel for discipline’s motion for
judgment on the pleadings requests that this court accept the
referee’s recommendation with respect to discipline, we over-
rule that motion.
The formal charges in this case allege that Switzer failed to
reveal to the county court the fact that Milone held Marion’s
power of attorney. When this failure was discovered, the
guardianship-conservatorship was terminated. Switzer was noti-
fied of this termination, but did not inform his clients. Switzer’s
clients were eventually notified after service by the sheriff.
each client attempted to contact Switzer, but was unable to do
so. Switzer was later asked to turn over the file to the clients’
7 See, also, disciplinary rule 10(N).
8 State ex rel. Counsel for Dis. v. Wickenkamp, supra note 5.
9 State ex rel. Counsel for Dis. v. Petersen, supra note 2.
10 Id.

new counsel and to provide a detailed accounting, but failed to
do either.
We are concerned by Switzer’s failure to reveal the informa-
tion regarding Milone’s holding of Marion’s power of attorney.
We also express concern over Switzer’s lack of communication
with his clients,11 particularly given the lengths that Carney took
to speak with him.
We are also troubled by Switzer’s failure to respond to the
Counsel for discipline’s inquiries. We have held that an attor-
ney’s failure to respond to inquiries and requests for informa-
tion from the office of the Counsel for discipline is considered
to be a grave matter and a threat to the credibility of attorney
disciplinary proceedings.12
Switzer’s failure to cooperate is only compounded in this
case in that Switzer admitted to fabricating a document during
the course of the Counsel for discipline’s investigation. We con-
sider this fabrication to move beyond failing to cooperate with
the Counsel for discipline; instead, such action directly inter-
fered with the investigation. While there is no indication from
the Counsel for discipline that the fabricated letter impeded its
investigation in any meaningful way, this court cannot and will
not overlook Switzer’s behavior on this point.
In his report, the referee noted as an aggravating factor
Switzer’s two prior private reprimands. And the referee further
indicated that Switzer was not particularly cooperative through-
out the disciplinary process following the filing of formal
charges. With respect to this finding, the referee first referenced
Switzer’s answer to the formal charges. In that answer, Switzer
alleged that the Counsel for discipline had “mixed up and
concocted events and allegations, taken events out of context,
and reached conclusions which are based upon innuendo of
[the Counsel for discipline’s] own choosing. The behavior and
11 See, e.g., State ex rel. Special Counsel for Dis. v. Fellman, 267 Neb. 838,
678 N.W.2d 491 (2004); State ex rel. Counsel for Dis. v. James, 267 Neb.
186, 673 N.W.2d 214 (2004).
12 State ex rel. Counsel for Dis. v. Zendejas, 274 Neb. 829, 743 N.W.2d 765
(2008); State ex rel. Counsel for Dis. v. Gilroy, 270 Neb. 339, 701 N.W.2d
837 (2005).
STATe ex reL. COUNSeL FOr dIS. v. SWITzer 	889
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890 	275 NeBrASkA rePOrTS
conduct and attitude which [the Counsel for discipline] con-
tinues to exhibit results in allegations which are frivolous and
misguided.” In his report, the referee indicated that he felt this
answer was improper. The referee also indicated that Switzer
had agreed to file a new answer, but had failed to do so. Aside
from Switzer’s failing to file a new answer, the referee noted
that Switzer was not cooperative in that Switzer indicated he
would conduct discovery, but never did so.
Based upon our consideration of the record in this case, this
court finds that Switzer should be and hereby is suspended from
the practice of law for a period of 18 months, effective imme-
diately. Switzer shall comply with Neb. Ct. r. of discipline 16
(rev. 2004) and, upon failure to do so, shall be subject to a pun-
ishment for contempt of this court. At the end of the 18-month
suspension period, Switzer may apply to be reinstated to the
practice of law, provided that Switzer has demonstrated his
compliance with rule 16 and further provided that the Counsel
for discipline has not notified this court that Switzer has vio-
lated any disciplinary rule during his suspension. We also direct
Switzer to pay costs and expenses in accordance with Neb.
rev. Stat. §§ 7-114 and 7-115 (reissue 1997), disciplinary rule
10(P), and Neb. Ct. r. of discipline 23(B) (rev. 2001) within
60 days after an order imposing costs and expenses, if any, is
entered by this court.
CONCLUSION
The motion of the Counsel for discipline is sustained in part
and in part overruled. We adopt the referee’s findings of fact
and conclude that Switzer has violated the Code of Professional
responsibility, the Nebraska rules of Professional Conduct,
and his oath of office as an attorney.
It is the judgment of this court that Switzer should be and
hereby is suspended from the practice of law for 18 months,
effective immediately.
J udgment of susPension .
mccoRmack, J., not participating.