State ex rel. Counsel for Dis. v. Underhill

STATE EX REL. COUNSEL FOR DIS. v. UNDERHILL 	85
Cite as 285 Neb. 85
State of NebraSka ex rel. C ouNSel for D iSCipliNe
of the NebraSka Supreme C ourt, relator,
v. JameS C. uNDerhill, reSpoNDeNt.
825 N.W.2d 423
Filed January 18, 2013. 	No. S-12-987.
Original action. Judgment of suspension.
heaviCaN, C.J., Wright, C oNNolly, StephaN, mCC ormaCk,
miller-lermaN, and CaSSel, JJ.
per C uriam.
INTRODUCTION
The Counsel for Discipline of the Nebraska Supreme Court,
relator, has filed a motion for reciprocal discipline against
James C. Underhill, respondent. We grant the motion for recip-
rocal discipline and impose the same discipline as the Colorado
Supreme Court, which we understand to be 9 months of sus-
pension effective November 5, 2012, followed by 2 years of
probation, followed by 3 months 1 day of suspension if proba-
tion is not successful.
FACTS
Respondent was admitted to the practice of law in the
State of Nebraska on December 21, 1982. Respondent was
also admitted to the practice of law in the State of Colorado.
Respondent’s conditional admission filed on September 28,
2012, with the Colorado Supreme Court and accepted on
October 1, generally stipulates to trust account violations
and neglect of client matters. On October 1, the Colorado
Supreme Court entered an order, which stated that respondent
is “SUSPENDED from the practice of law for a period of
ONE YEAR AND ONE DAY, WITH NINE MONTHS TO
BE SERVED AND THREE MONTHS AND ONE DAY
TO BE STAYED upon the successful completion of a TWO-
YEAR period of probation . . . .” The order stated that
the effective date of the suspension was November 5, 2012.
On October 15, respondent reported the suspension by the
Colorado Supreme Court to the Nebraska Supreme Court’s
Counsel for Discipline.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

86 	285 NEBRASKA REPORTS
On October 23, 2012, the Counsel for Discipline filed a
motion for reciprocal discipline pursuant to Neb. Ct. R. § 3-321
of the disciplinary rules. On October 31, we entered an order
to show cause as to why we should not impose reciprocal dis-
cipline. On November 8, respondent responded to the order to
show cause in which he requested that we enter an order with
the same conclusion date as set forth in the suspension order
by the Colorado Supreme Court. The Counsel for Discipline
did not respond to the order to show cause.
ANALYSIS
The basic issues in a disciplinary proceeding against an
attorney are whether discipline should be imposed and, if so,
the type of discipline appropriate under the circumstances.
State ex rel. Counsel for Dis. v. Murphy, 283 Neb. 982, 814
N.W.2d 107 (2012). In a reciprocal discipline proceeding, a
judicial determination of attorney misconduct in one jurisdic-
tion is generally conclusive proof of guilt and is not subject to
relitigation in the second jurisdiction. Id. Based on the record
before us, we find that respondent is guilty of misconduct.
Neb. Ct. R. § 3-304 of the disciplinary rules provides that
the following may be considered 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.
Section 3-321 of the disciplinary rules provides in part:
(A) Upon being disciplined in another jurisdiction, a
member shall promptly inform the Counsel for Discipline
of the discipline imposed. Upon receipt by the Court of
appropriate notice that a member has been disciplined in

STATE EX REL. COUNSEL FOR DIS. v. UNDERHILL 	87
Cite as 285 Neb. 85
another jurisdiction, the Court may enter an order impos-
ing the identical discipline, or greater or lesser discipline
as the Court deems appropriate, or, in its discretion, sus-
pend the member pending the imposition of final disci-
pline in such other jurisdiction.
In imposing attorney discipline, we evaluate each case in
light of its particular facts and circumstances. State ex rel.
Counsel for Dis. v. Walocha, 283 Neb. 474, 811 N.W.2d 174
(2012). In his response to our order to show cause, respond-
ent requests that we enter an order with the same conclu-
sion date as set forth in the Colorado suspension order. The
October 1, 2012, order of the Colorado Supreme Court stated
that respondent is “SUSPENDED from the practice of law
for a period of ONE YEAR AND ONE DAY, WITH NINE
MONTHS TO BE SERVED AND THREE MONTHS AND
ONE DAY TO BE STAYED upon the successful comple-
tion of a TWO-YEAR period of probation . . . .” The order
further stated that the effective date of the suspension was
November 5, 2012. We understand this to mean respondent
is disciplined to 9 months of suspension to be served from
November 5, 2012, followed by 2 years of probation, followed
by 3 months 1 day of suspension if probation is not success-
ful. Our understanding controls the discipline imposed in this
case. Therefore, we grant the motion for reciprocal discipline
and impose the same discipline as imposed by the Colorado
Supreme Court, according to our understanding as set forth
above, to run concurrently with the discipline imposed by the
Colorado Supreme Court.
CONCLUSION
The motion for reciprocal discipline is granted. It is the judg-
ment of this court that respondent should be and is disciplined
to 9 months of suspension to be served from November 5,
2012, followed by 2 years of probation, followed by 3 months
1 day of suspension if probation is not successful. Respondent
shall comply with Neb. Ct. R. § 3-316, and upon failure to do
so, he shall be subject to punishment for contempt of this court.
He is also directed to pay costs and expenses in accordance
with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2007) and

88 	285 NEBRASKA REPORTS
Neb. Ct. R. §§ 3-310(P) and 3-323(B) of the disciplinary rules
within 60 days after an order imposing costs and expenses, if
any, is entered by this court.
JuDgmeNt of SuSpeNSioN.