State ex rel. Counsel for Dis v. Wickenkamp

State of NebraSka ex rel . C ouNSel for D iSCipliNe
of the NebraSka Supreme C ourt, relator , v.
mary C. WiCkeNkamp, reSpoNDeNt.
759 N.W.2d 492
Filed January 23, 2009. 	No. S-07-1313.
1. Disciplinary Proceedings: Appeal and Error. A proceeding to discipline an
attorney is a trial de novo on the record.
2. Disciplinary Proceedings. 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.
3. ____. Each attorney discipline case is evaluated individually in light of its par-
ticular facts and circumstances.
4. ____. 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.
5. ____. 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.
6. ____. The determination of an appropriate penalty to be imposed on an attorney
requires consideration of any aggravating or mitigating factors.
7. ____. Cumulative acts of attorney misconduct are distinguishable from isolated
incidents, therefore justifying more serious sanctions.
8. ____. An attorney’s failure to respond to inquiries and requests for information
from the Counsel for Discipline is a threat to the credibility of attorney disciplin-
ary proceedings.
Original action. Judgment of disbarment.
John W. Steele, Assistant Counsel for Discipline, for relator.
No appearance for respondent.
heaviCaN, C.J., C oNNolly, G errarD, StephaN, mCC ormaCk ,
and miller-lermaN, JJ.
per C uriam.
INTRODUCTION
The Counsel for Discipline of the Nebraska Supreme Court,
relator, filed formal charges consisting of three counts against
respondent, Mary C. Wickenkamp. After service, Wickenkamp
16 	277 NEbRASkA REpORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

did not respond to the formal charges. Relator moved for judg-
ment on the pleadings. On May 7, 2008, this court entered
judgment limited to the facts and reserved ruling on the
appropriate sanction until after briefing and oral argument.
After reviewing the matter, we find that the proper sanction
is disbarment.
STATEMENT OF FACTS
Wickenkamp 	was 	admitted 	to 	the 	practice 	of 	law 	in
Nebraska on September 22, 1980. She conducted a private
practice in Lincoln, Nebraska. Wickenkamp received two
prior private reprimands, on December 18, 2000, and October
30, 2003, and was previously the subject of reported disci-
pline in 2007.
In State ex rel. Counsel for Dis. v. Wickenkamp, 272 Neb.
889, 725 N.W.2d 811 (2007) (Wickenkamp I), this court found
by clear and convincing evidence that Wickenkamp had vio-
lated: Canon 1, DR 1-102(A)(1) (violating disciplinary rule),
DR 1-102(A)(4) (engaging in conduct involving dishonesty,
fraud, 	deceit, 	or 	misrepresentation), 	and 	DR 	1-102(A)(5)
(engaging in conduct prejudicial to administration of justice);
Canon 6, DR 6-101(A)(3) (neglecting legal matter); and Canon
7, DR 7-101(A)(2) (failing to carry out contract of employ-
ment for professional services); as well as her oath of office,
Neb. Rev. Stat. § 7-104 (Reissue 1997). This court suspended
Wickenkamp’s license to practice law for a 12-month period
beginning on January 12, 2007. After the conclusion of her 12-
month suspension on January 12, 2008, Wickenkamp did not
seek reinstatement.
Formal charges were again filed against Wickenkamp on June
12, 2007. These charges give rise to the instant case. because
the conduct occurred before and after this court adopted the
Nebraska Rules of professional Conduct, certain allegations
are brought under the now-superseded Code of professional
Responsibility and other allegations are brought under the
rules. See State ex rel. Counsel for Dis. v. Switzer, 275 Neb.
881, 750 N.W.2d 681 (2008). because relator was unable to
obtain service of process on Wickenkamp within the required
6-month time period, the case was dismissed and relator refiled
STATE Ex REL. COUNSEL FOR DIS. v. WICkENkAMp 	17
Cite as 277 Neb. 16

the charges on December 13. On February 14, 2008, relator
asked this court for permission to serve Wickenkamp by publi-
cation. In support of this request, relator attached to its affida-
vit a letter from Wickenkamp which stated that she had moved
from Nebraska and does not intend to practice law in Nebraska
in the future.
On February 20, 2008, this court sustained relator’s motion
to serve Wickenkamp by publication. Wickenkamp did not
respond to the formal charges. On April 15, relator moved for
a judgment on the pleadings. On May 7, this court granted
judgment on the pleadings as to the facts alleged in the formal
charges, but directed that the case proceed to briefing and oral
argument on the issue of discipline.
The formal charges, which are uncontested and make up the
record in this case, involve three separate incidents. First, in
2005, Wickenkamp represented Lloyd Trackwell, Jr. (Lloyd Jr.),
and the Trackwell family in the sale of a parcel of real estate
to b & J partnership, Ltd. (b&J). The sale of land between
b&J and the Trackwell family was to close on July 15, 2005.
On July 12, b&J’s in-house counsel contacted Wickenkamp
and informed her that his client wanted to postpone the July 15
closing and possibly cancel the deal.
On July 13, 2005, Lloyd Jr. hand delivered a letter to a b&J
principal threatening a breach of contract action if the closing
did not take place on July 15. The letter further stated that any
lawsuit would also contain a claim for antitrust violations that
would have the potential to “‘effectively eviscerate [b&J] and
its holdings.’” b&J’s in-house counsel e-mailed Wickenkamp
stating that he had no problem with Wickenkamp’s contacting
a b&J principal with issues involving the contract negotia-
tions, but that she was not to contact b&J principals directly
regarding possible litigation. Wickenkamp was advised that any
discussions about litigation should be directed to b&J’s outside
counsel. Wickenkamp replied that she would not communicate
with b&J’s outside counsel because she believed that he had a
conflict of interest.
On July 14, 2005, Wickenkamp had a letter delivered to
another b&J principal, A. Joyce Smith. The letter stated that
the Trackwell family still intended to close on July 15 and went
18 	277 NEbRASkA REpORTS

on to state possible bases for a lawsuit if b&J failed to close
as agreed. On July 15, the Trackwell family and Wickenkamp
appeared for the closing but b&J did not. Wickenkamp pre-
pared a letter stating that they were at the closing and that they
had expected b&J to appear. Wickenkamp had Lloyd Jr. hand
deliver the letter to Smith.
On 	July 	18, 	2005, 	on 	behalf 	of 	Judith 	Trackwell,
Wickenkamp filed a complaint in the U.S. District Court for
the District of Nebraska against b&J and its representatives
alleging breach of contract, tortious interference with a busi-
ness relationship, and violations of federal and state antitrust
laws. That same day, Lloyd Jr. personally delivered the sum-
mons and copies of the complaint to b&J’s office and signed
and filed returns of service indicating that he had personally
served the individual defendants. Also on that same day,
Wickenkamp had Lloyd Jr. hand deliver a letter to Smith
accusing Smith of attempting to avoid service and stating
that Wickenkamp would continue to communicate directly
with Smith, because Wickenkamp believed that b&J’s out-
side counsel had a conflict of interest. A second letter from
Wickenkamp to Smith was delivered later that day by Lloyd
Jr. This letter stated that “‘any conveyances of property, real
or person (sic) from [b&J] to any other party in an attempt to
protect the assets of [b&J] will be fully prosecuted under the
Nebraska Fraudulent Conveyances statutes.’”
On July 19, 2005, Wickenkamp arranged for the delivery
of two additional letters directly delivered to Smith. One let-
ter was a settlement offer, and the other letter stated that
Wickenkamp was serving b&J with a subpoena. In the second
letter, Wickenkamp again stated that she would not commu-
nicate with b&J’s outside counsel. Wickenkamp had another
letter hand delivered to Smith on July 21. This letter warned
that Wickenkamp would file an amended complaint in federal
court raising additional claims against b&J unless b&J paid
the balance of the contract price by the close of business on
July 22. The July 21 letter also threatened to subpoena various
b&J representatives for depositions in a state condemnation
case then pending regarding a parcel of real estate adjacent
to the real estate in dispute in the federal case. According to
STATE Ex REL. COUNSEL FOR DIS. v. WICkENkAMp 	19
Cite as 277 Neb. 16

the formal charges, the state case was referred to as “City of
Lincoln v. Trackwell, CI-04-3289.”
On July 26, 2005, Wickenkamp had the threatened sub-
poenas and a subpoena under what is now codified as Neb.
Ct. R. Disc. § 6-330(b)(6) for corporate response served on
the b&J principals and b&J’s in-house counsel. As warned
in the July 21 letter, the subpoenas were not issued out of the
federal case, but, rather, were issued out of the separate state
court condemnation case. The only issue before the court in
the state case was the market value of the condemned par-
cel of land and the amount of any severance or consequen-
tial damages. The § 6-330(b)(6) subpoena sought discovery
unrelated to the issues before the state court, including, inter
alia, information relating to a disciplinary complaint filed by
Wickenkamp against b&J’s outside counsel, communications
between b&J and a title company, development plans of b&J,
communications between b&J and lending institutions, and
communications with contractors regarding development of
the property.
On July 28, 2005, Wickenkamp filed the first amended com-
plaint in the federal court case, raising additional claims against
b&J. On July 29, Wickenkamp filed a second amended com-
plaint adding additional defendants to the federal lawsuit. On
August 1, Wickenkamp sent b&J’s in-house counsel another
demand letter stating that unless b&J paid the Trackwells the
contract price plus compensatory damages by noon on August
4, Wickenkamp would file a third amended complaint adding
claims under the federal Racketeer Influenced and Corrupt
Organizations Act. Apparently after receiving the August 1 let-
ter, b&J and its principals retained a new law firm.
After Wickenkamp filed a third amended complaint, coun-
sel for the defendants moved to disqualify Wickenkamp as
counsel of record for the Trackwells, arguing that she would
be a witness in the trial of the matter and for sanctions against
Wickenkamp for her abusive and bad faith conduct in the
prosecution of the Trackwells’ claims and in related litiga-
tion. prior to the court’s ruling on the motion to disqualify,
Wickenkamp withdrew as counsel. The federal magistrate judge
ultimately found that Wickenkamp’s behavior was abusive and
20 	277 NEbRASkA REpORTS

unnecessarily escalated a simple breach of contract case into a
case alleging illegal if not criminal conduct by b&J and sanc-
tioned Wickenkamp personally in the amount of $33,631. The
federal district court judge affirmed the order.
Relator alleged that the acts of Wickenkamp in her represen-
tation of the Trackwells violated § 7-104, Wickenkamp’s oath
of office as an attorney licensed to practice law in the State
of Nebraska, and the following provisions of the Nebraska
Code of professional Responsibility (for conduct that occurred
prior to September 1, 2005): DR 1-102 (misconduct); Canon
5, DR 5-101 (refusing employment when interests of lawyer
may impair lawyer’s independent professional judgment) and
DR 5-102 (withdrawal as counsel when lawyer becomes wit-
ness); and Canon 7, DR 7-102 (representing client within
bounds of law); and DR 7-103 (communicating with one
of adverse interest). Relator further alleged that the acts of
Wickenkamp violated the following provisions of the Nebraska
Rules of professional Conduct (for conduct that occurred after
September 1, 2005), as now codified: Neb. Ct. R. of prof.
Cond. § 3-503.2 (expediting litigation), § 3-503.7 (lawyer as
witness), § 3-504.2 (communication with person represented
by counsel), and § 3-508.4 (misconduct).
In count two of the formal charges, relator stated that in
June 2005, Tiffany Lacy hired Wickenkamp to represent Lacy
in recovering for injuries she incurred while working for a
roofing contractor. Wickenkamp and Lacy never memorialized
in writing the terms of the fee agreement, but there seems to
be an agreement that Wickenkamp was to receive one-third of
any recovery. It is not clear, however, as to what figure one-
third would apply. Lacy had been injured in 2003, and by the
time she retained Wickenkamp, there were issues regarding the
statute of limitations on her claims. Wickenkamp eventually
settled with Lacy’s employer on the following terms: receipt of
a cash payment of $5,000, the employer’s agreement to pay for
all future medical services required by Lacy as a result of the
injury, and the employer’s agreement to waive a construction
lien that the employer had against Lacy’s grandmother’s house.
Lacy claims that it was her understanding that Wickenkamp
would receive one-third of the $5,000 cash payment. However,
STATE Ex REL. COUNSEL FOR DIS. v. WICkENkAMp 	21
Cite as 277 Neb. 16

Wickenkamp claimed a fee of one-third of $15,000, the esti-
mated value of the medical services, plus an additional amount
for other work Wickenkamp had performed for Lacy. The fee
totaled $6,400; Wickenkamp reduced her fee to $4,000 and dis-
tributed the balance of the funds, $1,000, to Lacy. At the time
Wickenkamp distributed the funds, she knew Lacy disagreed
with the proposed fee.
Relator alleged that this act violated § 7-104, Wickenkamp’s
oath of office as an attorney licensed to practice law in the
State of Nebraska, and violated the following provisions of
the Code of professional Responsibility (for conduct that
occurred prior to September 1, 2005): DR 1-102 (misconduct)
and Canon 9, DR 9-102 (preserving identity of funds and
property of client). Further, relator alleged that Wickenkamp’s
conduct occurring after September 1, 2005, violated Neb.
Ct. R. of prof. Cond. § 3-501.15 (safekeeping property), as
now codified.
Finally, count three of the formal charges alleged that some-
time during 2003, Wickenkamp was retained by Scott Cash, or
his mother, to assist him on various postconviction claims. In
July 2004, Cash sought to have a rehearing before the Nebraska
Court of Appeals. Under a deadline for filing the pleading seek-
ing review, Wickenkamp signed Cash’s name to a purported pro
se filing and filed it with the court. Wickenkamp claims that
Cash gave her permission to sign his name. Cash disputes this
assertion. Nowhere in the pleading did Wickenkamp acknowl-
edge that she was signing on behalf of Cash.
Relator alleged that this act constituted a violation of § 7-104,
Wickenkamp’s oath of office as an attorney licensed to practice
law in the State of Nebraska, and violated the following provi-
sions of the Code of professional Responsibility: DR 1-102
(misconduct) and DR 7-102 (representing client within bounds
of law).
ANALYSIS
[1] A proceeding to discipline an attorney is a trial de novo
on the record. State ex rel. Counsel for Dis. v. Smith, 275 Neb.
230, 745 N.W.2d 891 (2008). An attorney against whom for-
mal charges have been filed is subject to a judgment on the
22 	277 NEbRASkA REpORTS

pleadings if he or she fails to answer those charges. Id. The
disciplinary rules provide that if no answer is filed, the court
may dispose of the matter on a motion for judgment on the
pleadings as long as an opportunity for oral argument is given
before disbarment is ordered. State ex rel. Counsel for Dis. v.
Jones, 270 Neb. 471, 704 N.W.2d 216 (2005).
[2] We have stated that “[t]he 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. Swanson,
267 Neb. 540, 551, 675 N.W.2d 674, 682 (2004). In the instant
case, on May 7, 2008, this court granted relator’s motion for
judgment on the pleadings as to the facts; therefore, the only
issue before us is the type of discipline to be imposed.
Neb. Ct. R. § 3-304 provides that the following may be con-
sidered 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
(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.
See, also, Neb. Ct. R. § 3-310(N).
[3,4] With respect to the imposition of attorney discipline in
an individual case, we evaluate each attorney discipline case
in light of its particular facts and circumstances. See State ex
rel. Counsel for Dis. v. Riskowski, 272 Neb. 781, 724 N.W.2d
813 (2006). For purposes of determining the proper discipline
of an attorney, this court considers the attorney’s acts both
underlying the events of the case and throughout the proceed-
ing. State ex rel. Counsel for Dis. v. Dortch, 273 Neb. 667, 731
N.W.2d 594 (2007).
[5,6] To determine whether and to what extent discipline
should be imposed in a lawyer discipline proceeding, this
STATE Ex REL. COUNSEL FOR DIS. v. WICkENkAMp 	23
Cite as 277 Neb. 16

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 prac-
tice of law. Id. We have also noted that the determination of
an appropriate penalty to be imposed on an attorney requires
consideration of any aggravating or mitigating factors. State
ex rel. Special Counsel for Dis. v. Fellman, 267 Neb. 838, 678
N.W.2d 491 (2004). We have considered prior reprimands as
aggravators. State ex rel. Counsel for Dis. v. Jones, 270 Neb.
471, 704 N.W.2d 216 (2005).
Relator suggests that the appropriate sanction in this case is
disbarment. In considering the appropriate sanction, we note
that the evidence in the present case establishes among other
facts that Wickenkamp: (1) improperly escalated a simple con-
tract case into a case involving illegal and possibly criminal
behavior, (2) contacted opposing parties who were represented
by counsel, (3) distributed a portion of her client’s funds to
herself as fees when she knew her client disagreed with the
proposed fee, and (4) forged her client’s signature to a pur-
ported pro se filing. Further, we are aware of and must consider
as aggravators Wickenkamp’s two prior private reprimands and
the suspension of her license for 1 year, based on separate for-
mal charges involving Wickenkamp’s neglect of client matters.
See Wickenkamp I.
[7] In Wickenkamp I, we noted that this court was seriously
concerned with Wickenkamp’s repeated neglect of matters
entrusted to her. We further noted that cumulative acts of
attorney misconduct are distinguishable from isolated inci-
dents, therefore justifying more serious sanctions. Id. Indeed,
we have said that ordinarily, cumulative acts of misconduct
can, and often do, lead to disbarment. State ex rel. Counsel
for Dis. v. Sutton, 269 Neb. 640, 694 N.W.2d 647 (2005).
The facts alleged in the formal charges, which stand as estab-
lished in this case, demonstrate Wickenkamp’s continued
pattern of improperly handling the cases entrusted to her
and support the imposition of relator’s suggested discipline
of disbarment.
24 	277 NEbRASkA REpORTS

[8] In our consideration of the appropriate discipline, we
are also concerned by Wickenkamp’s failure to respond to
the formal charges filed by relator. We consider an attorney’s
failure to respond to inquiries and requests for information
from relator as an important matter and as a threat to the credi-
bility of attorney disciplinary proceedings. See State ex rel.
NSBA v. Rothery, 260 Neb. 762, 619 N.W.2d 590 (2000). The
failure to respond to formal charges in this court is of even
greater moment.
Upon due consideration of the facts of this case, based on
Wickenkamp’s cumulative acts of misconduct and her dis-
respect for this court’s disciplinary jurisdiction, the court finds
that the proper sanction is disbarment.
CONCLUSION
The motion for judgment on the pleadings is granted. It is
the judgment of this court that Wickenkamp should be and is
hereby disbarred from the practice of law, effective immedi-
ately. Wickenkamp is directed to pay costs and expenses in
accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue
2007) and § 3-310(p) and Neb. Ct. R. § 3-323(b) within 60
days after an order imposing costs and expenses, if any, is
entered by the court.
JuDGmeNt of DiSbarmeNt.
WriGht, J., participating on briefs.
fort CalhouN baptiSt C hurCh , appellaNt,
v. WaShiNGtoN C ouNty boarD of
equalizatioN, appellee .
759 N.W.2d 475
Filed January 23, 2009. 	No. S-08-108.
1. Taxation: Judgments: Appeal and Error. Appellate courts review decisions
rendered by the Tax Equalization and Review Commission for errors appearing
on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, an appellate court’s inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.
FORT CALHOUN bApT. CH. v. WASHINgTON CTY. bD. OF Eq. 	25
Cite as 277 Neb. 25