State ex rel. Counsel for Dis. v. Fournier

matter of law under § 36-706(b), that value was exchanged,
and that Dominguez had a prior claim. Under § 36-708(a)(1),
Dominguez was entitled to an avoidance of the transfer, and
§ 36-709(b)(1) allowed the district court to enter judgment
against the Abbotts personally. We therefore affirm the judg-
ment of the district court.
A ffirmed.
StAte of NebrASkA ex rel . C ouNSel for diSCipliNe
of the NebrASkA Supreme C ourt, relAtor , v.
dAvid A. fourNier , reSpoNdeNt.
763 N.W.2d 401
Filed April 10, 2009. 	No. S-07-1205.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. ____. An attorney against whom formal charges have been filed is subject to a
judgment on the pleadings if he or she fails to answer those charges. 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.
3. ____. 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.
4. ____. With respect to the imposition of attorney discipline in an individual case,
each attorney discipline case is evaluated in light of its particular facts and
circumstances.
5. ____. 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.
Original action. Judgment of disbarment.
Kent 	L. 	Frobish, Assistant 	Counsel 	for 	Discipline, 	for
relator.
No appearance for respondent.
heAviCAN, 	C.J., 	Wright, 	C oNNolly, 	gerrArd, 	StephAN,
mCC ormACk, and miller-lermAN, JJ.
STATe ex reL. COUNSeL FOr DIS. v. FOUrNIer 	541
Cite as 277 Neb. 541
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

per C uriAm.
NATUre OF THe CASe
The Counsel for Discipline of the Nebraska Supreme Court,
relator, filed formal charges against David A. Fournier, respon-
dent, alleging Fournier violated his oath of office as an attor-
ney, and violated the Nebraska rules of Professional Conduct
by mishandling funds in his client trust account. Fournier did
not respond to the formal charges. relator moved for judgment
on the pleadings. This court entered judgment limited to the
facts as pled and reserved ruling on the appropriate discipline
until after briefing and oral argument. After reviewing the mat-
ter, we conclude that the proper sanction is disbarment.
STATeMeNT OF FACTS
Fournier was admitted to the practice of law in the State of
Nebraska on September 23, 1997. Fournier has been engaged
in the private practice of law in the State of Nebraska. In June
2004, Donna Widhalm hired Fournier to assist her in negotiat-
ing with her creditors. By written agreement between Widhalm
and Fournier, Widhalm agreed to deposit $275 per month with
Fournier, who would retain the funds in his trust account until
a settlement could be reached with Widhalm’s creditors. From
June 2004 through September 2005, Widhalm deposited $4,525
with Fournier. Widhalm also paid Fournier a fee of $500 in
June 2004. Fournier never made payments to Widhalm’s credi-
tors, nor did he refund Widhalm’s funds to her after she repeat-
edly requested that Fournier do so.
On June 20, 2007, relator received a grievance letter from
Widhalm setting forth the allegations discussed above. On
September 15, Fournier received a copy of the grievance filed
against him by Widhalm. Fournier was instructed by relator to
file an appropriate written response within 15 working days.
On October 11, Fournier filed a response to Widhalm’s griev-
ance, claiming that he returned the funds to Widhalm, but he
did not provide relator with evidence to support this statement.
On October 12, relator sent a letter to Fournier directing him
to provide documentation regarding his handling of Widhalm’s
funds by October 26, or relator would seek the temporary sus-
pension of Fournier’s license.
542 	277 NeBrASKA rePOrTS

Fournier did not respond to relator’s request. On November
16, 2007, the chairperson of the Committee on Inquiry of the
Second Disciplinary District filed with the Nebraska Supreme
Court an application for the temporary suspension of Fournier’s
license to practice law. On November 21, this court issued an
order to show cause directing Fournier to show cause why the
court should not enter an order temporarily suspending his
license to practice law in Nebraska. Service of the order was
made on November 23. No response was filed, and no cause
was shown by Fournier. This Court then entered an order tem-
porarily suspending Fournier from the practice of law.
On January 29, 2008, relator filed formal charges against
Fournier alleging that Fournier’s acts and omissions constituted
violations of 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 the following provisions of the
Nebraska rules of Professional Conduct as now codified: Neb.
Ct. r. of Prof. Cond. §§ 3-501.4 (communications), 3-501.15
(safekeeping property), and 3-508.4 (misconduct). Fournier was
not charged under the now-superseded Code of Professional
responsibility, which governs conduct that occurred prior to
September 1, 2005.
Following unsuccessful attempts at personal service, service
of the formal charges by publication was completed on June 6,
2008. Fournier had until July 7 to file his answer. No answer
was filed. On July 9, relator moved for judgment on the plead-
ings. On August 28, this court granted judgment on the plead-
ings as to the facts and set the issue of discipline for briefing
and oral argument.
ANALYSIS
[1,2] 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 formal charges have been filed is subject to a judg-
ment on the 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
STATe ex reL. COUNSeL FOr DIS. v. FOUrNIer 	543
Cite as 277 Neb. 541

argument is given before disbarment is ordered. See Neb. Ct.
r. § 3-310(I).
[3] 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. Wadman,
275 Neb. 357, 746 N.W.2d 681 (2008). In the instant case, on
August 28, 2008, this court granted relator’s motion for judg-
ment on the pleadings as to the facts, and 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, § 3-310.
[4,5] 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. Zendejas, 274 Neb. 829, 743 N.W.2d 765
(2008). 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. State
ex rel. Counsel for Dis. v. Dortch, 273 Neb. 667, 731 N.W.2d
594 (2007).
To determine whether and to what extent discipline should
be imposed in an attorney discipline proceeding, this court con-
siders the following factors: (1) the nature of the offense, (2)
the need for deterring others, (3) the maintenance of the repu-
tation of the bar as a whole, (4) the protection of the public,
(5) the attitude of the offender generally, and (6) the offender’s
544 	277 NeBrASKA rePOrTS

present or future fitness to continue in the practice of law. Id.
We have also noted that the determination of an appropriate
discipline to be imposed on an attorney requires consideration
of any aggravating or mitigating factors. See State ex rel.
Counsel for Dis. v. Zendejas, supra.
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 that Fournier
failed to return Widhalm’s funds held in Fournier’s client trust
account. The act of withholding funds occurred after September
1, 2005. We are also aware of the fact that Fournier failed to
respond to requests from relator for information, failed to
respond to the formal charges, and failed to file a brief with
this court.
In State ex rel. Counsel for Dis. v. Watts, 270 Neb. 749, 708
N.W.2d 231 (2005), we determined that disbarment was an
appropriate sanction for an attorney who violated disciplinary
rules regarding trust accounts, mishandled client funds, and
failed to cooperate with relator during the disciplinary proceed-
ings. Here, as in Watts, Fournier has violated disciplinary rules
and violated his oath of office as an attorney by mishandling
client funds entrusted to him and held in his trust account.
There is no record of mitigating factors.
After considering the undisputed allegations of the formal
charges, which are established as facts, and the applicable law,
we conclude that Fournier should be disbarred from the prac-
tice of law in the State of Nebraska.
CONCLUSION
We order that Fournier be disbarred from the practice of law
in the State of Nebraska, effective immediately. Fournier is
directed to comply with Neb. Ct. r. § 3-316, and upon failure
to do so, he shall be subject to punishment for contempt of this
court. Fournier is further 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 within 60 days
after an order imposing costs and expenses, if any, is entered
by the court.
JudgmeNt of diSbArmeNt.
STATe ex reL. COUNSeL FOr DIS. v. FOUrNIer 	545
Cite as 277 Neb. 541