State ex rel. Counsel for Dis v. Yoesel

state ex rel. counsel for dis. v. yoesel 	179
cite as 277 neb. 179
State of NebraSka ex rel . C ouNSel for D iSCipliNe of the
NebraSka Supreme C ourt, relator , v.
WilliS G. YoeSel , reSpoNDeNt.
760 n.W.2d 931
filed february 20, 2009. 	no. s-07-1192.
original action. Judgment of disbarment.
heaviCaN, 	C.J., 	WriGht, 	C oNNollY, 	G errarD, 	StephaN,
mCC ormaCk , and miller-lermaN, JJ.
per C uriam.
introduction
this case is before the court on the voluntary surrender
of license filed by respondent Willis G. yoesel. the court
accepts respondent’s surrender of his license and enters an
order of disbarment.
facts
respondent was admitted to the practice of law in the state
of nebraska on June 27, 1972. on June 30, 2008, the counsel
for discipline of the nebraska supreme court filed formal
charges against respondent.
the formal charges filed on June 30, 2008, allege that on
november 26, 2002, on behalf of dorothy M. Muse, respond-
ent filed in the county court for richardson county an applica-
tion for informal probate of will and appointment of personal
representative in the estate of Paul e. Jorn, sr. on november
27, letters of personal representative were issued to Muse.
notice of the estate proceedings was published and thereafter
numerous creditor claims were filed against the estate.
an inventory in the Jorn estate was not timely filed, and
on May 19, 2003, the county court issued an order to show
cause regarding the estate. the county court held a show cause
hearing on June 11. at the hearing, the county court directed
the personal representative to file an inventory by June 30. on
July 8, respondent filed a short form inventory listing property
individually owned by Jorn and property jointly owned by Jorn
and Muse.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

on March 10, 2005, the county court issued another order
to show cause regarding the Jorn estate. a show cause hearing
was held and the court directed the personal representative to
file estate closing documents by May 31. respondent failed to
file the closing documents by May 31 and failed to inform the
court why he could not timely file the documents.
on september 14, 2006, the court entered another order to
show cause, and the show cause hearing was set for october
25. respondent failed to attend the hearing. the hearing was
rescheduled for december 6. at the hearing, the personal rep-
resentative was directed to file closing papers and a proposed
schedule of distribution by January 16, 2007. respondent again
failed to timely file any closing documents.
on february 14, 2007, the court issued another show cause
order setting a show cause hearing for March 19. again,
respondent failed to attend the hearing. the court gave the
personal representative until March 28, to hire a replacement
counsel to complete the estate. Muse hired new counsel on
March 27.
on april 6, 2007, counsel for discipline received a griev-
ance letter from Muse regarding the respondent. Muse alleged
that she hired respondent in 2002 to handle the probate of the
estate of Jorn but that respondent had not timely handled the
estate proceedings, failed to attend one or more hearings, failed
to timely provide Muse with her file materials so that she could
give them to her replacement attorney, and failed to refund the
unused portion of the advance she paid to respondent in 2002.
a copy of Muse’s grievance letter was mailed to respondent on
april 9, 2007.
the counsel for discipline made repeated inquiries to
respondent for information concerning Muse’s grievances.
respondent failed to provide all the information requested by
the counsel for discipline. in the formal charges filed against
respondent, the counsel for discipline alleges that respondent
violated his oath of office as an attorney licensed to prac-
tice law in the state of nebraska as provided by neb. rev.
stat. § 7-104 (reissue 2007), and for the acts that occurred
prior to september 1, 2005, respondent violated the follow-
ing provisions of the code of Professional responsibility:
180 	277 nebraska rePorts

canon 1, dr 1-102 (misconduct); canon 6, dr 6-101 (fail-
ing to act competently); and canon 9, dr 9-102 (preserving
identity of funds and property of client). the formal charges
further allege that for respondent’s actions that occurred
after september 1, 2005, he violated the following provi-
sions of what are now codified as neb. ct. r. of Prof. cond.:
§§ 3-501.3 (diligence), 	3-501.15 (safekeeping property), and
3-508.4 (misconduct).
respondent answered the formal charges on september 22,
2008, and on october 9, this court appointed a referee. on
december 19, respondent filed with this court a voluntary sur-
render of license, voluntarily surrendering his license to prac-
tice law in the state of nebraska. in his voluntary surrender
of license, respondent stated that, for the purpose of his vol-
untary surrender of license, he knowingly does not challenge
or contest the truth of the allegations in the formal charges.
in addition to surrendering his license, respondent voluntarily
consented to the entry of an order of disbarment and waived his
right to notice, appearance, and hearing prior to the entry of the
order of disbarment.
analysis
neb. ct. r. § 3-315 provides in pertinent part:
(a) once a Grievance, a complaint, or a formal
charge has been filed, suggested, or indicated against a
member, the member may voluntarily surrender his or
her license.
(1) the voluntary surrender of license shall state in
writing that the member knowingly admits or knowingly
does not challenge or contest the truth of the suggested
or indicated Grievance, complaint, or formal charge
and waives all proceedings against him or her in connec-
tion therewith.
Pursuant to § 3-315, we find that respondent has voluntarily
surrendered his license to practice law and knowingly does not
challenge or contest the truth of the allegations made against
him in the formal charges. further, respondent has waived all
proceedings against him in connection therewith. We further
find that respondent has consented to the entry of an order
of disbarment.
state ex rel. counsel for dis. v. yoesel 	181
cite as 277 neb. 179

conclusion
upon due consideration of the court file in this matter, the
court finds that respondent voluntarily has stated that he know-
ingly does not challenge or contest the truth of the allegations
in the formal charges that he failed to address client matters,
failed to attend court hearings, and failed to preserve the iden-
tity of client funds and violated his oath of office as an attorney.
the court accepts respondent’s surrender of his license to prac-
tice law, finds that respondent should be disbarred, and hereby
orders him disbarred from the practice of law in the state of
nebraska, effective immediately. respondent shall forthwith
comply with all terms of neb. ct. r. § 3-316, and upon fail-
ure to do so, he shall be subject to punishment for contempt
of this court. accordingly, respondent is directed to pay costs
and expenses in accordance with neb. rev. stat. §§ 7-114 and
7-115 (reissue 2007) and neb. ct. r. §§ 3-310(P) and 3-323
within 60 days after an order imposing costs and expenses, if
any, is entered by the court.
JuDGmeNt of DiSbarmeNt.
State of NebraSka , appellee , v.
elmore huDSoN, Jr ., appellaNt.
761 n.W.2d 536
filed february 20, 2009. 	no. s-08-151.
1. Effectiveness of Counsel. a claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
2. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective assistance of counsel, an appellate court reviews the factual findings of
the lower court for clear error. With regard to the questions of counsel’s perfor-
mance or prejudice to the defendant as part of the two-pronged test articulated in
Strickland v. Washington, 466 u.s. 668, 104 s. ct. 2052, 80 l. ed. 2d 674 (1984),
an appellate court reviews such legal determinations independently of the lower
court’s decision.
3. Constitutional Law: Right to Counsel. an ineffective assistance of counsel
claim alleges a violation of the fundamental constitutional right to a fair trial.
4. Effectiveness of Counsel: Proof. to prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington, 466 u.s. 668, 104 s. ct. 2052, 80
l. ed. 2d 674 (1984), the defendant must show that counsel’s performance
182 	277 nebraska rePorts