State ex rel. Counsel for Dis. v. Barnes

914 	275 NeBrASkA rePOrTS
but allowed to remain in his parents’ home was subsequently
ordered committed to OJS for placement at a youth rehabilita-
tion and training center without compliance with the procedures
specified in § 43-286(4).15 We reach the same conclusion here.
The order requiring Markice to be placed in a group home had
the effect of changing a term of his previously ordered proba-
tion without following the applicable statutory procedure.
CONCLUSION
For the reasons discussed, we reverse the order of dismissal
entered by the Court of Appeals and remand the cause to that
court with directions to vacate the order entered May 1, 2007,
by the separate juvenile court of douglas County, and to remand
the cause to that court for further proceedings consistent with
this opinion.
R eveRsed and Remanded with diRections .
15 In re Interest of Torrey B., supra note 9.
state of nebRaska ex Rel . counsel foR disciPline of
the nebRaska suPReme couRt , RelatoR, v .
timothy b. baRnes , ResPondent .
750 N.W.2d 668
Filed June 13, 2008. 	No. S-07-709.
1. Disciplinary Proceedings: Appeal and Error. In attorney discipline and admis-
sion cases, the Nebraska Supreme Court reviews recommendations de novo on the
record, reaching a conclusion independent of the referee’s findings.
2. ____: ____. When credible evidence in an attorney discipline proceeding is in
conflict on material issues of fact, the Nebraska Supreme Court considers and gives
weight to the fact that the referee heard and observed the witnesses and accepted
one version of the facts rather than another.
3. Disciplinary Proceedings. Under Neb. Ct. r. of discipline 4 (rev. 2004), the
Nebraska Supreme Court may consider and impose the following public sanctions
for attorney misconduct: (1) disbarment; (2) suspension for a fixed period; (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.
4. ____. To determine whether and to what extent discipline should be imposed in a
lawyer discipline proceeding, the Nebraska Supreme Court considers the follow-
ing factors: (1) the nature of the offense, (2) the need for deterring others, (3) the
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

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. ____. The Nebraska Supreme Court evaluates each attorney discipline case indi-
vidually, in light of its particular facts and circumstances.
6. ____. In attorney discipline cases, the Nebraska Supreme Court considers (1)
aggravating and mitigating circumstances, (2) the attorney’s conduct underlying
the charges and throughout the proceeding, and (3) the propriety of a sanction with
the sanctions imposed in similar cases.
Original action. Judgment of suspension.
John W. Steele, Assistant Counsel for discipline, for relator.
No appearance for respondent.
heavican, 	C.J., 	wRight, 	connolly, 	geRRaRd, 	stePhan,
mccoRmack, and milleR-leRman, JJ.
P eR cuRiam.
The Counsel for discipline of the Nebraska Supreme Court
charged respondent, Timothy B. Barnes, with violating his oath
of office under Neb. rev. Stat. § 7-104 (reissue 1997) and the
following provisions of the Nebraska rules of Professional
Conduct: rule 1.3 (duty to act with reasonable diligence and
promptness in representing client), rule 1.4 (duty to promptly
communicate with client about means of accomplishing cli-
ent’s goals, status of matter undertaken, and client’s reason-
able requests for information), and rule 1.16 (duty to protect
client’s interest upon termination of representation). The charges
stemmed from Barnes’ negligent handling of his client’s legal
matter and his failure to communicate with the client.
Barnes was retained by an animal welfare group, Hi Plains
Animal Welfare Society (HiPAWS), to help it obtain nonprofit
corporation status. After HiPAWS retained Barnes, he failed
to complete the matter and failed to notify HiPAWS that he
was unable to do so. He did not return any of the money
HiPAWS paid for his fee and expenses until after the Counsel
for discipline had filed formal charges against him. The evi-
dence does not show that he has repaid the full amount of his
unearned fee.
STATe ex reL. COUNSeL FOr dIS. v. BArNeS 	915
Cite as 275 Neb. 914

916 	275 NeBrASkA rePOrTS
The referee found clear and convincing evidence to support
the formal charges. He recommended that Barnes be publicly
censured and reprimanded. We agree with the referee’s findings
that the formal charges are supported by clear and convincing
evidence. But we conclude that the recommendation of a public
reprimand is not an appropriate sanction under these facts. We
suspend Barnes from the practice of law for 30 days, subject to
the conditions stated below.
BACkGrOUNd
Barnes was admitted to practice law in Nebraska in August
2003. From July 2003 to March 2005, he worked for a law firm
in Mitchell, Nebraska. After March 2005, he was a solo practi-
tioner in Scottsbluff, Nebraska. His practice primarily involved
domestic relations, criminal law, and serving as a guardian
ad litem. At some point, he was hired part time as a deputy
kimball County Attorney.
Most of these events regarding the formal charges took place
in 2006 while Barnes was a solo practitioner in Scottsbluff. The
referee found that in February 2006, HiPAWS retained Barnes
and paid him a flat fee of $1,500 and $500 for expenses to
obtain tax-exempt status for HiPAWS under I.r.C. § 501(c)(3)
(2000). Barnes put the $500 in his trust account and the $1,500
in his business account. He had never completed a § 501(c)(3)
application by himself. He helped with an application while
working for the Mitchell law firm, but his work was limited to
proofreading. He knew that he would also need to file articles
of incorporation for HiPAWS, and both parties understood that
his professional fee covered this filing.
HiPAWS sent documentation to Barnes about its group when
it paid him $2,000 in February 2006, but he did not initially
request any further documentation. In May, after HiPAWS
attempted to contact Barnes, he e-mailed HiPAWS to set up
a meeting. He did not, however, attend that meeting. He also
failed to attend a rescheduled meeting in July after learning
that he was required to be at a court hearing instead. Barnes
finally met with HiPAWS members on July 20. He requested
further documentation, which the members later sent to him. He
also stated that he would need several more weeks to complete

the § 501(c)(3) application but did not specify a reason for the
delay. At the end of July, Barnes closed his office, terminated
his e-mail account, and moved to Utah. He moved there with his
family to take advantage of a special education program in Salt
Lake City for his 9-year-old daughter. In August, he was offered
a job in Utah; he currently works there as a prosecutor. He did
not inform HiPAWS of his move.
In September 2006, Barnes sent HiPAWS a partially com-
pleted § 501(c)(3) application and requested further informa-
tion. He did not send paperwork for filing articles of incorpora-
tion. HiPAWS did not immediately respond to Barnes’ request
for more information because HiPAWS wanted clarification. A
member attempted to contact Barnes by e-mail and telephone
and finally obtained his new contact information through the bar
association. In November, after speaking to Barnes, a HiPAWS
member sent him the additional information he had requested
by mail. Barnes, however, never completed the application
despite many e-mails from HiPAWS.
After moving to Utah, Barnes and his family began to have
health problems, and he put the HiPAWS application “on the
backburner.” Barnes testified that from late 2006 until March
2007, he was having unexplained, debilitating headaches. He
stated that he underwent extensive testing, including MrI’s,
CT scans, and even a spinal tap, to ensure he did not have an
aneurysm. In 2007, his wife was dealing with mental health
problems when she became unexpectedly pregnant with their
fourth child, who was born in September 2007. Besides his
oldest daughter’s special needs, his 5-year-old daughter was
having growth problems and was undergoing chromosome test-
ing for genetic disorders. Barnes also underwent surgery for an
undisclosed reason in August 2007. But despite these health
problems, he never informed HiPAWS that he could not do the
work, because he still believed that he could.
In december 2006 and January 2007, a HiPAWS member
contacted the Counsel for discipline. Afterward, in January, the
member informed Barnes that HiPAWS would proceed with its
complaint unless he finished the project or refunded its pay-
ment of fees and expenses. The Counsel for discipline filed
formal charges against Barnes in June 2007. In August, Barnes
STATe ex reL. COUNSeL FOr dIS. v. BArNeS 	917
Cite as 275 Neb. 914

918 	275 NeBrASkA rePOrTS
refunded to HiPAWS $1,000 of the money it paid him for his fee
and the $500 it paid him for expenses; he also promised to repay
the remaining $500 of his unearned fee. But he had not done so
when the referee hearing occurred in October.
At the referee’s hearing, Barnes testified that he had initially
contacted a couple of attorneys about the § 501(c)(3) application
but that their responses did not help him. He did not attempt to
contact a tax professional; nor did he contact anyone at his for-
mer law firm because he did not feel comfortable calling anyone
there. He believed that he could learn the process on his own.
Barnes testified that he did not refund the $500 for expenses
immediately in January 2007 because he was planning to write
one check to HiPAWS for the full amount. He also stated that
he had not yet repaid the remaining $500 because his finances
were “strapped” following his surgery and the birth of his fourth
child. But he testified that he planned to repay the $500 within
a couple of months.
The referee found Barnes had fully cooperated with the
Counsel for discipline, had admitted most of the allegations,
had expressed remorse over his failure to complete the appli-
cation, and intended to repay the remaining $500. The referee
further found that there was clear and convincing evidence to
support the formal charges. The referee specifically found that
Barnes had failed to take reasonable steps to protect his client’s
interest, such as giving reasonable notice of his termination of
representation, allowing time for employment of other counsel,
and refunding all advanced payment of fees or expenses that he
had not earned or incurred.
regarding mitigating considerations, the referee found that
Barnes had made a good faith effort to do the work because the
application was two-thirds completed. He also found that Barnes
had returned the documentation HiPAWS had provided. Finally,
he found that Barnes had left Nebraska for personal and family
issues and was now employed as a prosecutor within the realm
of his experience and training. But the referee characterized
Barnes as “an unfortunate example of an inexperienced solo
practitioner entering into a project and representation which was
beyond his legal experience and training” who had failed to seek
the assistance of attorneys who could have helped him.

The referee recommended that this court publicly censure
and reprimand Barnes.
ASSIGNMeNT OF errOr
The Counsel for discipline takes exception to the referee’s
recommendation of a public censure and reprimand under
these facts.
STANdArd OF reVIeW
[1,2] In attorney discipline and admission cases, we review
recommendations de novo on the record, reaching a conclusion
independent of the referee’s findings.1 When credible evidence
is in conflict on material issues of fact, however, we consider
and give weight to the fact that the referee heard and observed
the witnesses and accepted one version of the facts rather
than another.2
ANALYSIS
Barnes has not filed exceptions to the referee’s report. Besides
its exception to the referee’s recommendation, the Counsel for
discipline also takes exception to a minor misstatement in the
referee’s findings of fact. We agree the record clearly shows the
statement was an error and have corrected it. We find clear and
convincing evidence in the record that Barnes has violated his
oath of office as an attorney under § 7-104 and the following
provisions of the Nebraska rules of Professional Conduct: rules
1.3, 1.4, and 1.16.
[3,4] Under Neb. Ct. r. of discipline 4 (rev. 2004), we may
consider and impose the following public sanctions for attorney
misconduct: (1) disbarment; (2) suspension for a fixed period;
(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.3 To determine whether and to what
extent discipline should be imposed in a lawyer discipline pro-
ceeding, we consider the following factors: (1) the nature of the
1 State ex rel. NSBA v. Kinney, 274 Neb. 412, 740 N.W.2d 607 (2007).
2 Id.
3 See State ex rel. Counsel for Dis. v. Wadman, ante p. 357, 746 N.W.2d 681
(2008).
STATe ex reL. COUNSeL FOr dIS. v. BArNeS 	919
Cite as 275 Neb. 914

920 	275 NeBrASkA rePOrTS
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.4
[5,6] We evaluate each attorney discipline case individually,
in light of its particular facts and circumstances.5 We con-
sider aggravating and mitigating circumstances, as well as the
attorney’s conduct underlying the charges and throughout the
proceeding.6 In addition, we consider the propriety of a sanction
with the sanctions imposed in similar cases.7
The evidence shows that Barnes seriously neglected and failed
to complete a matter entrusted to him and that his failure to
promptly pursue the matter adversely affected his client’s inter-
ests. A HiPAWS member testified that the group decided not to
pursue the § 501(c)(3) application after its money was refunded
because another animal welfare society had since been orga-
nized in the county. In addition, we note that although Barnes
did not appear before this court, the Counsel for discipline
reported that Barnes has still not repaid the remaining $500 of
his unearned fee.
As mitigating factors, we recognize that during some of the
time Barnes neglected his client’s legal matter, he was con-
tending with a series of personal and family health issues that
undoubtedly caused him mental and financial stress. We note
that he cooperated with the Counsel for discipline, admitted
most of the allegations in the formal charges, and acknowledged
responsibility for his actions. There is also no record of other
complaints against Barnes, and he is no longer engaged in the
private practice of law.
despite Barnes’ personal problems, however, we find trou-
bling his failure to seek assistance on a matter about which
he had little experience. This failure occurred before the bulk
4 Id.
5 See id.
6 See id.
7 See State ex rel. Counsel for Dis. v. Riskowski, 272 Neb. 781, 724 N.W.2d
813 (2006).

of his personal and family health problems began, and those
problems were not so severe as to totally excuse his failure to
promptly communicate with his client. Finally, in a similar case,
we suspended an attorney who failed to return an unearned
portion of a client’s fee until after the client filed a complaint
against him.8
After a de novo review, it is the judgment of this court that
Barnes be suspended from the practice of law for 30 days,
beginning immediately. Barnes’ license to practice law shall be
reinstated at the end of the 30-day suspension, provided that he
has complied with Neb. Ct. r. of discipline 16 (rev. 2004) and
further provided that he has repaid to HiPAWS the remaining
portion of his unearned fee. Barnes is directed to pay costs and
expenses in accordance with Neb. rev. Stat. §§ 7-114 and 7-115
(reissue 1997) and Neb. Ct. r. of discipline 10(P) (rev. 2005)
and 23 (rev. 2001) within 60 days after an order imposing costs
and expenses, if any, is entered by the court.
J udgment of susPension .
8 See State ex rel. Counsel for Dis. v. Hynes, 262 Neb. 307, 631 N.W.2d 499
(2001).
JeNSeN v. JeNSeN 	921
Cite as 275 Neb. 921
alan dean J ensen , aPPellee , v .
kathleen a. J ensen , now known as
kathleen a. keRRigan , aPPellant .
750 N.W.2d 335
Filed June 13, 2008. 	No. S-07-728.
1. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
2. Judgments: Final Orders. Orders purporting to be final judgments, but that are
dependent upon the occurrence of uncertain future events, do not necessarily oper-
ate as “judgments” and may be wholly ineffective and void as such.
3. ____: ____. A conditional judgment may be wholly void because it does not “per-
form in praesenti” and leaves to speculation and conjecture what its final effect
may be.
4. ____: ____. While conditional orders will not automatically become final judg-
ments upon the occurrence of the specified conditions, they can operate in