State ex rel. Counsel for Dis. v. Carter

State of NebraSka ex rel . C ouNSel for D iSCipliNe of
the NebraSka Supreme C ourt, relator , v.
JohN m. Carter , reSpoNDeNt.
808 N.W.2d 342
Filed October 21, 2011. 	No. S-10-811.
1. Disciplinary Proceedings: Appeal and Error. A proceeding to discipline an
attorney is a trial de novo on the record, in which the Nebraska Supreme Court
reaches a conclusion independent of the findings of the referee; provided, how-
ever, that where the credible evidence is in conflict on a material issue of fact,
the Nebraska Supreme Court considers and may give weight to the fact that the
referee heard and observed the witnesses and accepted one version of the facts
rather than another.
2. Disciplinary Proceedings: Proof. Disciplinary charges against an attorney must
be established by clear and convincing evidence.
3. 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.
4. ____. The Nebraska Supreme Court has inherent authority to regulate the conduct
of attorneys admitted to the practice of law in the State of Nebraska.
5. ____. The purpose of a disciplinary proceeding against an attorney is not so much
to punish the attorney as it is to determine whether in the public interest an attor-
ney should be permitted to practice.
6. ____. 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.
7. ____. For purposes of determining the proper discipline of an attorney, the
Nebraska Supreme Court will consider the attorney’s acts both underlying the
alleged misconduct and throughout the proceeding.
8. ____. The determination of an appropriate penalty to be imposed on an attorney
in a disciplinary proceeding requires the consideration of any aggravating or
mitigating factors.
9. ____. Each attorney discipline case must be evaluated individually in light of its
particular facts and circumstances. In addition, the propriety of a sanction must
be considered with reference to the sanctions imposed in prior similar cases.
10. Disciplinary Proceedings: Words and Phrases. In the context of attorney
discipline proceedings, misappropriation is any unauthorized use of client funds
entrusted to an attorney, including not only stealing, but also unauthorized tempo-
rary use for the attorney’s own purpose, whether or not the attorney derives any
personal gain or benefit therefrom.
11. Disciplinary Proceedings. Absent mitigating circumstances, the appropriate
discipline in cases of misappropriation or commingling of client funds is typi-
cally disbarment.
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12. ____. The fact that the client did not suffer any financial loss does not excuse
an attorney’s misappropriation of client funds and does not provide a reason for
imposing a less severe sanction.
13. Disciplinary Proceedings: Presumptions. Mitigating factors overcome the pre-
sumption of disbarment in misappropriation and commingling cases only if they
are extraordinary.
Original action. Judgment of disbarment.
John 	W. 	Steele, 	Assistant 	Counsel 	for 	Discipline, 	for
relator.
James Walter Crampton for respondent.
heaviCaN, 	C.J., 	Wright, 	C oNNolly, 	gerrarD, 	StephaN,
mCC ormaCk , and miller-lermaN, JJ.
per C uriam.
On August 20, 2010, the Counsel for Discipline of the
Nebraska Supreme Court filed formal charges against attorney
John M. Carter, alleging Carter violated the following provi-
sions of the Nebraska rules of professional Conduct: Neb.
Ct. r. of prof. Cond. §§ 3-501.15(a) and 3-508.4. Carter filed
an answer admitting certain allegations in the formal charges
but denying others. This court appointed a referee. After con-
ducting an evidentiary hearing, the referee determined Carter
violated §§ 3-501.15(a) and 3-508.4(a) and (c). because the
violations involved misappropriation of client funds and the
referee found no extraordinary mitigating circumstances, he
recommended disbarment. Carter filed exceptions to the ref-
eree’s report. Upon our independent review of the record, we
conclude that the violations occurred and that the proper sanc-
tion is disbarment.
I. FACTS
Carter graduated from law school in December 2006 and
was admitted to practice law in Nebraska and Iowa in 2007.
He maintained law offices in Omaha, Nebraska, and Council
bluffs, Iowa. He maintained trust accounts at Wells Fargo
bank (Wells Fargo) in Omaha for his Nebraska practice and
at TierOne bank (TierOne) in Council bluffs for his Iowa
practice.
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In September 2008, Carter was retained by sisters Norma
Noland and Clifettia rose, who resided in Omaha and were
the daughters of Anna Charles. Charles resided in a nursing
home, and her conservator proposed to sell her Omaha home
in order to meet expenses. Noland and rose retained Carter to
oppose the sale. Carter was paid $200 by Noland and rose at
the time of his retention. A written agreement dated September
17, 2008, stated Carter would be paid a fee at an hourly rate
of $165. The signatures of Carter, Noland, and rose appear on
the agreement, although Noland testified that she did not recall
signing it.
The sale of the house did not occur. According to Noland,
this was because the conservator received funds from the sale
of property in Texas which made it unnecessary to sell the
Omaha property. Carter testified that the sale of the house
was prevented through his legal efforts on behalf of Noland
and rose.
Upon Charles’ death, which apparently occurred sometime
in late 2008 or early 2009, Carter assisted Noland in preparing
documents in connection with her appointment as the personal
representative of Charles’ estate. That appointment occurred
on February 11, 2009. Carter testified that he also performed
various other legal acts on Noland’s behalf between September
2008 and December 2009.
On February 20, 2009, Carter deposited a check from
Charles’ former conservator in the amount of $7,334.61 into
the Wells Fargo trust account. Whether Carter received the
check from the conservator or from Noland is disputed, but
there is no dispute that the check represented funds belonging
to the Charles estate which were to be distributed equally to
Noland and rose under Charles’ will.
On March 17, 2009, Carter withdrew $1,800 from the Wells
Fargo trust account, which he later characterized as a fee earned
in his representation of Noland and rose. On April 3, Carter
withdrew an additional $4,500 from the trust account, which he
later characterized as an additional fee earned in his represen-
tation of Noland and rose. Noland and rose denied that they
authorized any fee payment from the funds held in Carter’s
trust account. Carter admits that aside from the original hourly
598 	282 NEbrASkA rEpOrTS

fee agreement, there was no written authorization for the fee
payments from Noland, rose, or the probate court. but he
testified that Noland and rose verbally authorized the payment
of fees from the trust account. As a result of the two withdraw-
als totaling $6,300, the balance in Carter’s Wells Fargo trust
account fell below $7,334.61 on 12 days between February 27
and June 22, 2009.
During the summer of 2009, Noland and rose began demand-
ing that Carter distribute the funds received from the conser-
vatorship, and Noland contacted the Counsel for Discipline
regarding his failure to do so. In a meeting with Noland and
rose, Carter agreed to distribute $3,300 to each of them. Carter
knew that the funds in his trust account were insufficient and
intended to make these distributions from his own funds, but
he did not inform Noland or rose of this fact. In a letter dated
September 14, 2009, written in response to Noland’s complaint,
Carter advised the Counsel for Discipline that the Charles
estate would be closed by the end of the month and that at that
time, he would make separate distributions of $3,300 each to
Noland and rose.
In late September or early October 2009, Carter received
a check payable to another client in the amount of $43,350.
Carter testified that on October 12, 2009, he deposited this
check plus $6,600 in cash in the trust account he maintained at
TierOne in Council bluffs. He testified that the cash was from
his own funds and that he had intended to use it to make the
agreed-upon distributions to Noland and rose. According to
Carter, he did not fill out a deposit slip or obtain a receipt for
the cash, because the bank’s computer was down at the time of
his deposit. records from TierOne reflect a deposit of $43,350
into Carter’s trust account on that date. On October 22, Carter
wrote separate checks to Noland and rose in the amount of
$3,300 each on the TierOne trust account. The checks were dis-
honored and returned because of insufficient funds on deposit.
Carter initially thought he had made an accounting error, but
he later realized that the cash deposit had not been recorded by
the bank. Carter immediately reported the dishonored checks to
the Counsel for Discipline. In December 2009, Carter’s lawyer
sent replacement checks drawn on certified funds remitted by
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Carter in the amount of $3,300 each to Noland and rose, who
acknowledged receipt.
Carter testified he had presented Noland and rose with
a statement showing the work he had done on their behalf.
Noland and rose testified that they never received any state-
ment or accounting from Carter. During the investigation which
preceded the filing of formal charges, Carter provided the
Counsel for Discipline with two statements covering the period
of September 17, 2008, through December 30, 2009. The first
statement, dated December 30, 2009, reflects that Carter per-
formed 12.6 hours of work, for which he charged a total fee
of $2,359. This represents an average hourly rate of $187.22,
which is higher than the agreed hourly rate of $165 set forth
in the retainer agreement. The second statement bears a date
of April 22, 2009, but includes entries for work done after that
date and reflects a total billing of $6,959.50, from September
17, 2008, through December 30, 2009. Carter testified that the
dates were odd because after the disciplinary complaint was
made, he added items he had not yet billed to a statement that
was already started.
Carter contends that an error on the part of TierOne with
respect to his deposit on October 12, 2009, resulted in the dis-
honor of the initial checks written to Noland and rose. At the
hearing before the referee, a former employee of Wells Fargo,
appearing as a witness on Carter’s behalf, testified that there
were irregularities on the TierOne statement which may have
been attributable to a teller’s error in transposing numbers.
Carter testified that he had a pending lawsuit against TierOne
and its successor in interest regarding the claimed error.
II. rEpOrT OF rEFErEE
based upon the testimony of Noland and rose and incon-
sistencies in the evidence relied upon by Carter, the referee
rejected Carter’s contention that Noland and rose had verbally
authorized a payment of $6,300 in fees from the trust account.
The referee found that the testimony of Carter’s witness regard-
ing the claimed error on the part of TierOne was not credible
and that there was no evidence of any bank error or, as alter-
natively claimed by Carter, that someone at the bank stole the
$6,600 which he had intended to deposit.
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The referee found by clear and convincing evidence that
Carter deposited $7,334.61 into his trust account and then
withdrew $6,300 without authorization from his clients. The
referee noted:
The conclusion is inescapable that [Carter] paid him-
self fees before they were earned, attempted to conceal
the withdrawal by repaying the money and characterizing
it as a “distribution” from the estate, and, when that ruse
failed, created after-the-fact billing statements to make
it appear he had fully earned the money before it was
withdrawn. From April 2009 until December 2009, the
$6,300.00 was in [Carter’s] possession or converted to his
personal use and unaccounted for.
based upon this finding, the referee determined that Carter had
violated §§ 3-501.15(a) and 3-508.4(a) and (c).
On the issue of the appropriate sanction, the referee cited
our case law indicating that absent mitigating circumstances,
the appropriate discipline in cases of misappropriation or com-
mingling of client funds is disbarment, even if the client did not
suffer any financial loss. The referee concluded that although
Carter had no prior record of disciplinary violations and had
cooperated with the investigation by the Counsel for Discipline,
there were no extraordinary mitigating circumstances which
would overcome the presumption of disbarment for misap-
propriation or commingling of client funds. Accordingly, the
referee recommended disbarment.
During the hearing, the referee overruled Carter’s objection
that he lacked jurisdiction because the TierOne trust account
was located in Iowa. This jurisdictional issue is not discussed
in the referee’s report.
III. ASSIGNMENTS OF ErrOr
Carter filed the following summarized exceptions to the
referee’s report, contending the referee (1) erroneously con-
cluded he had not cooperated and accepted responsibility; (2)
incorrectly found the sale of Charles’ house was unnecessary
due to the conservator’s receipt of money from the sale of the
property in Texas; (3) erroneously determined his explana-
tion for withdrawing the $6,300 from the trust account was
“not credible”; and (4) erroneously overruled his objection to
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jurisdiction, based on the fact that the TierOne trust account
was situated in Iowa.
IV. STANDArD OF rEVIEW
[1] A proceeding to discipline an attorney is a trial de novo
on the record, in which we reach a conclusion independent of
the findings of the referee; provided, however, that where the
credible evidence is in conflict on a material issue of fact, we
consider and may give weight to the fact that the referee heard
and observed the witnesses and accepted one version of the
facts rather than another.1
V. ANAlYSIS
[2,3] Disciplinary charges against an attorney must be estab-
lished by clear and convincing evidence.2 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
1. JuriSDiCtioN
[4] before reaching the merits, we address Carter’s conten-
tion that we lack jurisdiction over this disciplinary proceeding
because the trust account from which the dishonored checks to
Noland and rose were issued was located in Iowa. The referee
overruled Carter’s jurisdictional objection, and we conclude
that he did not err in doing so. This court has inherent author-
ity to regulate the conduct of attorneys admitted to the practice
of law in the State of Nebraska,4 and every attorney admitted
to practice in Nebraska is subject to the exclusive disciplinary
jurisdiction of this court. It is the conduct of a Nebraska law-
yer in the representation of Nebraska residents which is before
us in this case. Carter is charged with misappropriating client
1 State ex rel. Counsel for Dis. v. Herzog, 281 Neb. 816, 805 N.W.2d 632
(2011).
2 Id.
3 State ex rel. Counsel for Dis. v. Tarvin, 279 Neb. 399, 777 N.W.2d 841
(2010); State ex rel. Counsel for Dis. v. Wickenkamp, 277 Neb. 16, 759
N.W.2d 492 (2009).
4 State ex rel. NSBA v. Barnett, 248 Neb. 601, 537 N.W.2d 633 (1995).
602 	282 NEbrASkA rEpOrTS

funds deposited in a trust account in Nebraska. The fact that
he subsequently utilized another trust account in an Iowa bank
in an attempt to repay the funds does not defeat our discipli-
nary jurisdiction.
2. grouNDS for D iSCipliNe
Carter is alleged to have violated his oath of office as an
attorney and §§ 3-501.15 and 3-508.4 of the Nebraska rules of
professional Conduct.
Section 3-501.15 (safekeeping property) provides in part:
(a) A lawyer shall hold property of clients or third per-
sons that is in a lawyer’s possession in connection with a
representation separate from the lawyer’s own property.
Funds shall be kept in a separate account maintained
in the state where the lawyer’s office is situated. Other
property shall be identified as such and appropriately
safeguarded. Complete records of such account funds
and other property shall be kept by the lawyer and shall
be preserved for a period of 5 years after termination of
the representation.
Section 3-508.4 (misconduct) provides in part:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of professional
Conduct[,] knowingly assist or induce another to do so or
do so through the acts of another;
(b) commit a criminal act that reflects adversely on the
lawyer’s honesty, trustworthiness or fitness as a lawyer in
other respects;
(c) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation.
In his brief, Carter “admits to violating his oath of office
and the Nebraska Court rules of professional Conduct.”5
Accordingly, we agree with the conclusion of the referee
that there is clear and convincing evidence that Carter has
violated §§ 3-501.15(a) and 3-508.4(a) and (c). We shall con-
sider Carter’s exceptions to various factual findings by the
5 brief for respondent at 7.
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referee in the context of determining the appropriate discipli-
nary sanction.
3. SaNCtioN
(a) Exceptions to Factual Findings
(i) Sale of Texas Property
Carter takes exception to the referee’s finding with respect to
a sale of property in Texas and its relationship to preventing the
sale of Charles’ Omaha home by her conservator. The referee
found: “The house was not sold. . . . It is unclear exactly how
the sale of the house was avoided. . . . Noland testified that the
conservatorship received money from the sale of property in
Texas, which allowed the conservator to pay . . . Charles’ debts
thereby making a sale of the house unnecessary.” This is an
accurate summary of Noland’s testimony, and it is clear from
the context that the referee did not make any specific finding as
to whether Noland’s account was correct. Carter asserts that it
was incorrect, but does not point to any evidence in the record
specifically refuting Noland’s testimony on this point. He also
challenges the relevance of this evidence. We agree with the
referee’s finding that “[i]t is unclear exactly how the sale of the
house was avoided.”
(ii) Documentation of Claimed Fees
Carter takes exception to the referee’s characterization of
a document that he prepared during the investigation of the
disciplinary charges as an “after-the-fact accounting” for fees.
This document reflects the deposit in the amount of $7,334.61,
representing the conservatorship funds paid to the Charles
estate, and the subsequent withdrawals of $1,800 and $4,500,
which Carter claimed were earned fees. Carter testified he
reconstructed this from bank records in an attempt to satisfy
a request from the Counsel for Discipline. We accept it as
such, and we do not regard the fact that this document was
admittedly reconstructed by Carter as evidence of deception
on his part.
but the referee correctly noted that the amounts of the
claimed fees reflected on this document were inconsistent with
billing statements subsequently produced by Carter. The billing
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statements were also inconsistent with each other, and one
of the statements contained entries which Carter admitted he
made after the purported date of the statement. From this and
other evidence in the record, the referee determined Carter’s
explanation that he withdrew $6,300 from the trust account to
pay himself fees which Noland and rose authorized was “not
credible.” After a thorough review of all the evidence concern-
ing Carter’s explanations for the trust account withdrawals, the
referee concluded Carter “paid himself fees before they were
earned, attempted to conceal the withdrawal by repaying the
money and characterizing it as a ‘distribution’ from the estate,
and, when that ruse failed, created after-the-fact billing state-
ments to make it appear he had fully earned the money before
it was withdrawn.” This conclusion is supported by clear and
convincing evidence.
(iii) Cooperation and Acceptance
of Responsibility
Carter assigns and argues that the referee erred in finding
that “[Carter] did not cooperate or accept responsibility,”6 but
he does not direct us to a specific portion of the record reflect-
ing such finding. The referee stated in his report, “relator has
stipulated that [Carter] was fully cooperative with his office
during his investigation of the grievance, except for the fact
that he changed his explanation for why the clients’ funds were
not in his trust account. . . . And [Carter’s] attitude was coop-
erative and agreeable during the hearing.” based upon our de
novo review, we determine that this finding is fully supported
by the record.
(b) Determination of Appropriate Sanction
[5-9] The purpose of a disciplinary proceeding against an
attorney is not so much to punish the attorney as it is to deter-
mine whether in the public interest an attorney should be per-
mitted to practice.7 To determine whether and to what extent
6 Id. at 9.
7 State ex rel. Counsel for Dis. v. Orr, 277 Neb. 102, 759 N.W.2d 702
(2009); State ex rel. NSBA v. Hogan, 272 Neb. 19, 717 N.W.2d 470
(2006).
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Cite as 282 Neb. 596

discipline should be imposed in a lawyer discipline proceed-
ing, 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.8 For purposes of determining the proper discipline of an
attorney, we will consider the attorney’s acts both underlying
the alleged misconduct and throughout the proceeding.9 The
determination of an appropriate penalty to be imposed on an
attorney in a disciplinary proceeding also requires the consid-
eration of any aggravating or mitigating factors.10 Each attorney
discipline case must be evaluated individually in light of its
particular facts and circumstances.11 In addition, the propriety
of a sanction must be considered with reference to the sanc-
tions imposed in prior similar cases.12
[10-13] In the context of attorney discipline proceedings,
misappropriation 	is 	any 	unauthorized 	use 	of 	client 	funds
entrusted to an attorney, including not only stealing, but also
unauthorized temporary use for the attorney’s own purpose,
whether or not the attorney derives any personal gain or bene-
fit therefrom.13 This latter form of misappropriation clearly
occurred here. We have consistently held that absent miti-
gating circumstances, the appropriate discipline in cases of
misappropriation or commingling of client funds is typically
8 State ex rel. Counsel for Dis. v. Thew, 281 Neb. 171, 794 N.W.2d 412
(2011); State ex rel. Counsel for Dis. v. Hutchinson, 280 Neb. 158, 784
N.W.2d 893 (2010).
9 Herzog, supra note 1; Orr, supra note 7.
10 State ex rel. Counsel for Dis. v. Samuelson, 280 Neb. 125, 783 N.W.2d 779
(2010).
11 State ex rel. Counsel for Dis. v. Beach, 272 Neb. 337, 722 N.W.2d 30
(2006); State ex rel. Counsel for Dis. v. Widtfeldt, 271 Neb. 851, 716
N.W.2d 68 (2006).
12 Id.
13 State ex rel. Counsel for Dis. v. Jones, 270 Neb. 471, 704 N.W.2d 216
(2005).
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disbarment.14 The fact that the client did not suffer any finan-
cial loss does not excuse an attorney’s misappropriation of
client funds and does not provide a reason for imposing a less
severe sanction.15 Mitigating factors overcome the presumption
of disbarment in misappropriation and commingling cases only
if they are extraordinary.16
The Counsel for Discipline argues that mitigating circum-
stances were insufficient in this case to overcome the presump-
tion of disbarment. Carter concedes that his trust account fell
below the required balance on several occasions and that disci-
pline should be imposed, but he argues for a lesser sanction to
include a suspension followed by a period of probation.
We agree with the referee that the mitigating factors in this
case include the absence of a prior disciplinary record, no
pattern of misconduct over an extended period of time, and
Carter’s generally cooperative dealings with the Counsel for
Discipline. but on the other side of the balance, we cannot
ignore the fact that misappropriation of client funds occurred.
And, like the referee, we are troubled by Carter’s conflicting
and inconsistent explanations for his actions during the course
of the disciplinary investigation.
In his initial correspondence with the Counsel for Discipline
in September 2009, Carter stated that as the attorney for the
Charles estate, he would be making a final distribution to
Noland and rose in the amount of $3,300 each by the end of
the month. That could not have been true, because by that date,
Carter had already withdrawn most of the estate funds from his
trust account. Carter’s letter did not mention that fact or assert
any entitlement to the funds as payment for legal fees. Several
months later, one of Carter’s attorneys informed the Counsel
for Discipline that Carter retained estate funds in the amount
of $6,600 in the Wells Fargo trust account from February 2009
until June or July 2009, when he withdrew the funds in order
to make payment to Noland and rose. That statement conflicts
14 Samuelson, supra note 10; Jones, supra note 13.
15 State ex rel. NSBA v. Howze, 260 Neb. 547, 618 N.W.2d 663 (2000).
16 Id.
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with Carter’s reconstructed records that show he withdrew
$6,300 of the estate funds from his trust account by April 2009.
It further conflicts with Carter’s testimony that by the summer
of 2009, the money which he agreed to pay to Noland and rose
was no longer in his trust account, but was to come from his
own funds. At the hearing before the referee, Carter claimed
for the first time that the entire $6,300 he withdrew from the
trust account was payment for fees he earned in representing
Noland and rose. but as noted above, he produced conflict-
ing and contradictory documentation which did not support
this claim.
Misappropriation alone is presumptive grounds for disbar-
ment, but here it is aggravated by an apparent attempt to con-
ceal what had occurred from the clients and from the Counsel
for Discipline. Viewed in its entirety, Carter’s conduct indicates
a lack of concern for the protection of the public, the profes-
sion, and the administration of justice.17 On this record, we
cannot conclude that there are extraordinary mitigating circum-
stances which would justify departure from the general rule
that a lawyer’s misappropriation of client funds should result in
disbarment. Upon due consideration, we conclude that disbar-
ment is the appropriate sanction.
VI. CONClUSION
It is therefore the judgment of this court that Carter be
disbarred from the practice of law in the State of Nebraska,
effective immediately. Carter is directed to comply with Neb.
Ct. r. § 3-316, and upon failure to do so, Carter shall be
subject to punishment for contempt of this court. Carter 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 has been entered by this court.
JuDgmeNt of DiSbarmeNt.
17 See State ex rel. Counsel for Dis. v. Smith, 275 Neb. 230, 745 N.W.2d 891
(2008).
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