State ex rel. Counsel for Dis. v. Switzer

required. There must be no dispute either as to the amount due
or as to the plaintiff’s right to recover, or both.49 We conclude
that there was a reasonable controversy with respect to both
Koch’s liability and the amount of potential damages, and
accordingly, the district court did not err in refusing to award
prejudgment interest under § 45-103.02.
V. CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court.
A ffirmed.
Wright, J., not participating.
49 Id.
StAte of NebrASkA ex rel . C ouNSel for diSCipliNe
of the NebrASkA Supreme C ourt, relAtor , v.
WilliAm l. SWitzer , Jr ., reSpoNdeNt.
790 N.W.2d 433
Filed November 12, 2010. 	No. S-09-1095.
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 proceed-
ing against an attorney, the Counsel for Discipline must establish a charge by
clear and convincing evidence.
3. Disciplinary Proceedings: Appeal and Error. When no exceptions to the
referee’s findings of fact are filed, the Nebraska Supreme Court may consider the
referee’s findings final and conclusive.
4. Disciplinary Proceedings. The basic issues in a disciplinary proceeding against
an attorney are whether the Nebraska Supreme Court should impose discipline
and, if so, the appropriate discipline under the circumstances.
5. ____. To determine whether and to what extent discipline should be imposed in
an attorney 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. ____. In imposing attorney discipline, the Nebraska Supreme Court evaluates
each case in the light of its particular facts and circumstances.
STATe ex reL. COUNSeL FOr DIS. v. SWITzer 	815
Cite as 280 Neb. 815
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

7. ____. In 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.
8. ____. When determining appropriate discipline of an attorney, the Nebraska
Supreme Court considers aggravating and mitigating factors.
9. ____. Because cumulative acts of attorney misconduct are distinguishable from
isolated incidents, they justify more serious sanctions.
10. ____. In a disciplinary proceeding, an isolated incident not representing a pattern
of conduct is considered a mitigating factor.
11. ____. Cooperation during attorney disciplinary proceedings and remorse are rele-
vant mitigating factors.
12. ____. In a disciplinary proceeding, it is necessary to consider the discipline
that the Nebraska Supreme Court has imposed in cases presenting similar
circumstances.
13. Disciplinary Proceedings: Proof. To establish depression as a mitigating factor
in a proceeding to discipline an attorney, the respondent must show (1) medical
evidence that he or she is affected by depression, (2) that the depression was a
direct and substantial contributing cause to the misconduct, and (3) that treatment
of the depression will substantially reduce the risk of further misconduct. These
are questions of fact.
14. Disciplinary Proceedings. When depression is established as a mitigating factor,
it does not automatically result in a less severe punishment.
15. ____. In a disciplinary proceeding, failure to comply with Neb. Ct. r. § 3-316
places one in contempt of court and constitutes an aggravating circumstance.
Original action. Judgment of disbarment.
Kent 	L. 	Frobish, Assistant 	Counsel 	for 	Discipline, 	for
relator.
Michael 	D. 	McClellan, 	of 	Gast 	& 	McClellan, 	for
respondent.
heAviCAN, 	C.J., 	Wright, 	C oNNolly, 	gerrArd, 	StephAN,
mCC ormACk , and miller-lermAN, JJ.
per C uriAm.
In 2008, we suspended William L. Switzer, Jr., from the prac-
tice of law for 18 months for violating the professional rules
and his oath of office.1 Switzer, however, did not comply with
our decision. He agreed to represent new and existing clients
1 State ex rel. Counsel for Dis. v. Switzer, 275 Neb. 881, 750 N.W.2d 681
(2008).
816 	280 NeBrASKA repOrTS

and took fees from new clients. The Counsel for Discipline
soon filed formal charges against Switzer for his conduct after
his suspension. Switzer does not deny the charges; instead, he
argues that his depression should mitigate any discipline we
impose. We conclude that even if his depression is mitigation,
it is not sufficient mitigation considering Switzer’s history and
conduct. We disbar Switzer.
BACKGrOUND
Switzer was admitted to the bar in 1987. He has been dis-
ciplined before. The first instance occurred in 1994, when he
was reprimanded for neglecting a client’s dental malpractice
case and misrepresenting the progress of the case to the client.
Switzer told his client that he had filed the lawsuit when he had
not. He also said that he had talked to the dentist about poten-
tial settlements when he had not done so. He was privately rep-
rimanded for violations of Canon 1, Dr 1-102(A)(1) and (6),
and Canon 6, Dr 6-101(A), of the former Code of professional
responsibility. In 1999, Switzer was again in trouble. He failed
to timely withdraw his appearance in a case after the client had
discharged him. This violated Dr 1-102(A)(1) and Canon 2,
Dr 2-110(B)(4), of the Code of professional responsibility,
and he was privately reprimanded.
The events leading up to the present matter began in 2005.
They were the subject of our opinion in State ex rel. Counsel
for Dis. v. Switzer.2 Switzer had been retained by two clients
to draft and file the necessary paperwork to have the cli-
ents named as their mother’s coguardians and coconservators.
Shortly after they retained Switzer, another party was named
guardian and conservator. Switzer was aware of this but failed
to name the party when he filed an ex parte emergency action
to have his clients named as coguardians and coconservators.
When this omission was discovered, the clients’ appointment
was terminated. Switzer failed to timely notify his clients of
their termination. He was also evasive when the clients called
to speak to him—in one instance, leaving the client on hold
for an hour.
2 Id.
STATe ex reL. COUNSeL FOr DIS. v. SWITzer 	817
Cite as 280 Neb. 815

The clients wrote to Switzer to terminate the attorney-client
relationship. They requested an accounting of services ren-
dered, which he never gave. The clients then hired new coun-
sel, who requested the file. Switzer never complied.
The clients then contacted the Counsel for Discipline, who
in turn contacted Switzer. In his communications with the
Counsel for Discipline, Switzer often failed to respond “‘prop-
erly and adequately.’”3 At one point, Switzer attempted to mis-
lead the Counsel for Discipline by fabricating a letter.
We concluded that Switzer’s conduct violated several rules
of professional conduct and his oath of office. The referee sug-
gested a 1-year suspension, but we rejected that suggestion and
instead imposed an 18-month suspension that began immedi-
ately on June 13, 2008. The federal courts suspended Switzer
shortly thereafter.
The current charges against Switzer stem from his conduct
after his suspension. In count I, the Counsel for Discipline
alleges that Switzer continued to represent a client after his
suspension. He told the client in September 2008—during his
suspension—that he would file a bankruptcy petition. Switzer
failed to inform his clients that his license had been suspended.
When Switzer was served with the grievance, he failed to file an
answer within the required period. The Counsel for Discipline
charged Switzer with violating his oath of office as an attorney,
Neb. Ct. r. § 3-309(e), and the following provisions of the
Nebraska rules of professional Conduct: Neb. Ct. r. of prof.
Cond. §§ 3-501.3, 3-501.4, 3-505.5, and 3-508.4.
Count II alleges similar facts with different clients, namely
that during Switzer’s suspension, he said he would file a bank-
ruptcy petition for his clients. He failed to communicate with
his clients. Count II is different from count I in that it alleges
that Switzer accepted fees during his suspension. Switzer again
failed to answer the grievance filed regarding this incident.
Switzer did refund the fees to the clients after the grievances
were filed. The Counsel for Discipline alleges that these acts
violated Switzer’s oath of office, § 3-309(e), and the follow-
ing provisions of the Nebraska rules of professional Conduct:
3 Id. at 886, 750 N.W.2d at 685.
818 	280 NeBrASKA repOrTS

§§ 3-501.3, 3-501.4, and 3-508.4, and Neb. Ct. r. of prof.
Cond. § 3-501.15.
Count III again alleges similar facts. It alleges that Switzer
took fees and agreed to file a bankruptcy petition for a cli-
ent during his suspension but did not tell the client that he
was suspended. And he again failed to communicate with
the client regarding the bankruptcy petition. When the client
found out about Switzer’s suspension, he placed a stop order
on the checks he had written to Switzer. This cost the client
$90. The Nebraska State Bar Association’s client assistance
fund reimbursed the client for these costs, and Switzer later
reimbursed the client assistance fund. But he again failed to
respond to the grievance filed against him. The Counsel for
Discipline claims that Switzer’s conduct violated his oath
of office, § 3-309(e), and the following provisions of the
Nebraska rules of professional Conduct: §§ 3-501.3, 3-501.4,
3-505.5, and 3-508.4.
Count IV alleges that Switzer was hired to represent a cli-
ent in a divorce proceeding during his suspension and that he
received a fee. Switzer failed to tell the client that his license
had been suspended and failed to return telephone calls to
keep the client informed. When the client learned of Switzer’s
suspension, he asked the client assistance fund to reimburse
his fees, which it did. Switzer later reimbursed the fund for
the fees. Like all the other counts in this proceeding, when
served with the initial grievance, Switzer failed to respond.
The Counsel for Discipline alleges that by these acts and
omissions, Switzer violated his oath of office as an attorney,
§ 3-309(e), and the following provisions of the Nebraska
rules of professional Conduct: §§ 3-501.3, 3-501.4, 3-501.15,
3-505.5, and 3-508.4.
In June 2010, a referee issued a report and recommenda-
tion. The referee found by clear and convincing evidence
that Switzer had violated his oath of office and the following
provisions of the Nebraska rules of professional Conduct:
§§ 3-501.3, 3-501.4, 3-505.5, and 3-508.4.
In determining what discipline to recommend, the referee
stated that “[t]his case tests the boundaries of the interplay
between mitigation and punishment in lawyer discipline cases.”
STATe ex reL. COUNSeL FOr DIS. v. SWITzer 	819
Cite as 280 Neb. 815

The referee stated that there is no doubt Switzer committed
the violations, but there is also no doubt that Switzer suffers
from severe depression. The referee noted that a prior suspen-
sion was not enough to stop Switzer’s misconduct. He also
expressed doubt that further treatment for depression would
reduce the risk of further misconduct. The referee said that
“[a]t some point, mitigation must yield to considerations of
protection of the public.” The referee, while acknowledging the
difficulties that Switzer has suffered and will continue to suffer,
ultimately recommended disbarment.
As noted previously, Switzer does not deny the material
allegations of the charges against him. Instead, he argues that
because his depression is a mitigating factor, we should temper
any discipline by suspending him, instead of disbarring him.
ASSIGNMeNTS OF errOr
The Counsel for Discipline does not take exceptions to the
referee’s report. Switzer, however, has made four. They relate
to (1) the referee’s finding that treatment for Switzer’s major
depressive disorder and general anxiety disorder would not
substantially reduce the risk of further misconduct; (2) the
referee’s recommendation of disbarment, which Switzer claims
is too severe; (3) the referee’s viewing the proceeding as an
issue of punishment; and (4) the referee’s finding that Switzer
has been receiving treatment for his condition since 1993.
STANDArD OF reVIeW
[1-3] A proceeding to discipline an attorney is a trial de novo
on the record.4 To sustain a charge in a disciplinary proceeding
against an attorney, the Counsel for Discipline must establish a
charge by clear and convincing evidence.5 When no exceptions
to the referee’s findings of fact are filed, we may consider the
referee’s findings final and conclusive.6
4 State ex rel. Counsel for Dis. v. Gilner, ante p. 82, 783 N.W.2d 790 (2010);
State ex rel. Counsel for Dis. v. Bouda, 278 Neb. 380, 770 N.W.2d 648
(2009).
5 See Gilner, supra note 4.
6 Id.; State ex rel. Counsel for Dis. v. Nich, 279 Neb. 533, 780 N.W.2d 638
(2010).
820 	280 NeBrASKA repOrTS

ANALYSIS
[4] The basic issues in a disciplinary proceeding against an
attorney are whether we should impose discipline and, if so,
the appropriate discipline under the circumstances.7 Switzer
does not deny the allegations and concedes that discipline
should be imposed. Because he does not take exceptions to the
referee’s findings that he violated the rules, we may consider
such findings final and conclusive, which we do.8 Thus, we
limit our discussion to what is the appropriate discipline.
[5] To determine whether and to what extent discipline
should be imposed in an attorney discipline proceeding, we
consider 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 practice
of law.9
[6,7] In imposing attorney discipline, we evaluate each case
in the light of its particular facts and circumstances.10 And in
determining the proper discipline of an attorney, we consider
the attorney’s acts both underlying the events of the case and
throughout the proceeding.11
[8,9] When determining appropriate discipline, we con-
sider aggravating and mitigating factors.12 We have considered
prior reprimands as aggravators.13 Because cumulative acts of
7 See, Gilner, supra note 4; Nich, supra note 6; Bouda, supra note 4; State
ex rel. Counsel for Dis. v. Sipple, 265 Neb. 890, 660 N.W.2d 502 (2003).
8 See, Gilner, supra note 4; Nich, supra note 6.
9 Gilner, supra note 4; Bouda, supra note 4; State ex rel. Counsel for Dis. v.
Koenig, 278 Neb. 204, 769 N.W.2d 378 (2009); State ex rel. Counsel for
Dis. v. Wintroub, 277 Neb. 787, 765 N.W.2d 482 (2009).
10 See, Gilner, supra note 4; Nich, supra note 6; Bouda, supra note 4;
Koenig, supra note 9.
11 Id.
12 See, Nich, supra note 6; Koenig, supra note 9; Wintroub, supra note 9;
State ex rel. Counsel for Dis. v. Swan, 277 Neb. 728, 764 N.W.2d 641
(2009).
13 Nich, supra note 6.
STATe ex reL. COUNSeL FOr DIS. v. SWITzer 	821
Cite as 280 Neb. 815

attorney misconduct are distinguishable from isolated inci-
dents, they justify more serious sanctions.14 We have previously
said “cumulative acts of misconduct can, and often do, lead
to disbarment.”15
[10,11] regarding mitigation, we have stated that an isolated
incident not representing a pattern of conduct is considered a
mitigating factor.16 Cooperation during disciplinary proceed-
ings is also a mitigating factor.17 Finally, we have stated that
remorse is also a relevant mitigating factor.18
[12] We have also said that it is necessary to consider the
discipline that we imposed in cases presenting similar cir-
cumstances.19 And we have previously disciplined attorneys
who continued to practice after being suspended. In State ex
rel. Counsel for Dis. v. Carbullido,20 there were allegations
that the attorney had engaged in the unauthorized practice of
law after we suspended her license. She was also convicted
of several driving under the influence offenses and driv-
ing with a suspended license. We disbarred the attorney. In
State ex rel. NSBA v. Thierstein,21 we disciplined an attorney
who continued to practice law after being suspended. We
disbarred him. We also disbarred an attorney who continued
to practice with his suspended license in State ex rel. NSBA
v. Frank.22
Switzer’s primary argument is that we should consider his
depression as a mitigating factor and that because of this, we
14 See, id.; Wintroub, supra note 9.
15 State ex rel. Counsel for Dis. v. Carbullido, 278 Neb. 721, 725-26, 773
N.W.2d 141, 145 (2009).
16 See Swan, supra note 12.
17 See id.
18 State ex rel. Counsel for Dis. v. Wintroub, 267 Neb. 872, 678 N.W.2d 103
(2004).
19 See, Swan, supra note 12; State ex rel. Counsel for Dis. v. Riskowski, 272
Neb. 781, 724 N.W.2d 813 (2006).
20 Carbullido, supra note 15.
21 State ex rel. NSBA v. Thierstein, 218 Neb. 603, 357 N.W.2d 442 (1984).
22 State ex rel. NSBA v. Frank, 219 Neb. 271, 363 N.W.2d 139 (1985).
822 	280 NeBrASKA repOrTS

should not disbar him. It is true that in State ex rel. Counsel for
Dis. v. Thompson,23 we found that depression is a mitigating
factor and suspended Gary Thompson. Thompson faced three
formal charges, the allegations of which he admitted. The first
involved his failure to conduct discovery in a suit in federal
court, which resulted in the dismissal of the suit. Despite this
dismissal, Thompson continued to tell his client that the case
was progressing normally. In the second charge, it was also
alleged that Thompson misrepresented progress in a lawsuit to
a client. In addition, Thompson was also neglectful in failing
to answer several letters and telephone calls from the client.
The third charge again alleged that Thompson was neglectful
in pursuing the claims of his client.
[13] As mentioned, Thompson did not contest the alle-
gations in the charges. He did, however, allege depression
as a mitigating factor. We noted that Thompson’s “serious
ethical breaches . . . would ordinarily result in a severe sanc-
tion.”24 But we also recognized that mitigating factors are a
necessary consideration. We put forward a test to establish
depression as a mitigating factor. To satisfy the test, “the
respondent must show (1) medical evidence that he or she is
affected by depression, (2) that the depression was a direct
and substantial contributing cause to the misconduct, and
(3) that treatment of the depression will substantially reduce
the risk of further misconduct.”25 We noted that these ele-
ments were questions of fact. And we have applied this test
in other cases.26
Here, the referee considered the Thompson test. The ref-
eree found that Switzer met the first two elements of the
test. regarding the third element, the referee stated that he
could not conclude with any degree of confidence whether
23 State ex rel. Counsel for Dis. v. Thompson, 264 Neb. 831, 652 N.W.2d 593
(2002).
24 Id. at 840, 652 N.W.2d at 599.
25 Id. at 841, 652 N.W.2d at 600.
26 State ex rel. Counsel for Dis. v. Widtfeldt, 269 Neb. 289, 691 N.W.2d 531
(2005); Wintroub, supra note 18; State ex rel. Counsel for Dis. v. Mills,
267 Neb. 57, 671 N.W.2d 765 (2003).
STATe ex reL. COUNSeL FOr DIS. v. SWITzer 	823
Cite as 280 Neb. 815

treatment would substantially reduce the likelihood of future
misconduct. 	Switzer 	takes 	exception 	to 	this 	finding 	by
the referee.
[14] We do not believe it is necessary to parse the testi-
mony to determine the likelihood of further misconduct. even
if Switzer can satisfy the Thompson test, his depression is
just one mitigating factor. We balance it with other mitigat-
ing factors as well as aggravating factors. In short, when the
Thompson test is satisfied, it does not automatically result in a
less severe punishment.
[15] We now consider the aggravating and mitigating fac-
tors. As for aggravating factors, we note that Switzer has been
reprimanded twice and suspended once for his misconduct. As
mentioned previously, cumulative acts of misconduct justify
harsher sanctions than isolated incidents. We also note that
Switzer was initially uncooperative with the disciplinary pro-
ceedings; he failed to respond to any of the grievances that
were filed against him. We have previously held that failure to
cooperate can be an aggravating factor.27 Further, we note that
Switzer failed to comply with Neb. Ct. r. § 3-316 after his
suspension. We have previously said that “[f]ailure to comply
with [§ 3-316] places one in contempt of court and constitutes
an aggravating circumstance.”28
regarding mitigation, we accept, for the sake of argument,
that Switzer’s depression meets the Thompson test. We also
note Switzer does seem remorseful and does appear to have a
sincere hope to improve his condition.
And it is true that we stated in Thompson that “[i]n cases
involving depression as a mitigating factor, a period of manda-
tory suspension coupled with terms of reinstatement will often
be appropriate.”29 Yet, this was not intended to imply that sus-
pension will be given whenever depression is present as a miti-
gating factor. Depression may be sufficient mitigation to reduce
27 State ex rel. Counsel for Dis. v. Jones, 270 Neb. 471, 704 N.W.2d 216
(2005).
28 Id. at 482, 704 N.W.2d at 226.
29 Thompson, supra note 23, 264 Neb. at 843, 652 N.W.2d at 602.
824 	280 NeBrASKA repOrTS

a punishment in many cases. But as the referee said, “[a]t some
point, mitigation must yield to considerations of protection of
the public.” We have passed that point.
In sum, we cannot ignore that Switzer disobeyed a direct
order of this court. We previously suspended Switzer, but he
continued to practice, flouting our previous ruling. A suspen-
sion order is a command, not a suggestion. The offenses admit-
ted are serious, and the need to deter others from this type of
conduct weighs heavily. If attorneys ignore our suspension
orders without consequence, it undermines the authority of
this court. We determine that the only appropriate discipline
is disbarment.
CONCLUSION
We adopt the referee’s recommendation. We find that Switzer
violated his oath of office and several rules governing attor-
neys. It is the judgment of this court that Switzer should be
disbarred from the practice of law.
JudgmeNt of diSbArmeNt.
FreeDOM FIN. GrOUp v. WOOLLeY 	825
Cite as 280 Neb. 825
freedom fiNANCiAl group, iNC., et Al .,
AppellANtS, v. JANiCe m. Woolley,
iNdividuAlly, et Al ., AppelleeS.
792 N.W.2d 134
Filed November 12, 2010. 	No. S-09-1302.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Corporations: Actions: Parties. As a general rule, a shareholder may not bring
an action in his or her own name to recover for wrongs done to the corporation
or its property. Such a cause of action is in the corporation and not the sharehold-
ers. The right of a shareholder to sue is derivative in nature and normally can be
brought only in a representative capacity for the corporation.