State ex rel. Counsel for Dis. v. Smith

230 	275 Nebraska reports
$19,137 plus costs. the court’s findings have the effect of a
jury’s findings and will not be set aside on appeal unless clearly
wrong. see id.
CoNCLusIoN
there is no evidence that the judgment in this case was clearly
wrong. the judgment of the district court is affirmed.
A ffirmed .
S tAte of N ebrASkA ex rel . C ouNSel for diSCipliNe
of the N ebrASkA S upreme C ourt , relAtor , v .
S tepheN l. S mith , reSpoNdeNt .
745 N.W.2d 891
Filed March 7, 2008. 	No. s-07-397.
1. Disciplinary Proceedings. a proceeding to discipline an attorney is a trial de
novo on the record.
2. ____. Neb. Ct. r. of Discipline 4 (rev. 2004) provides that the following may be
considered by the Nebraska supreme Court as sanctions for attorney misconduct:
(1) disbarment; (2) suspension for a fixed period of time; (3) probation in lieu
of or subsequent to suspension, on such terms as the court may designate; (4)
censure and reprimand; or (5) temporary suspension.
3. ____. 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.
4. ____. 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.
5. ____. responding to disciplinary complaints in an untimely manner and repeat-
edly ignoring requests for information from the Counsel for Discipline indicate
disrespect for the Nebraska supreme Court’s disciplinary jurisdiction and a lack
of concern for the protection of the public, the profession, and the administration
of justice.
6. ____. an attorney’s failure to respond to inquiries and requests for information
from the office of the Counsel for Discipline is a grave matter and a threat to the
credibility of attorney disciplinary proceedings.
7. ____. the failure of a respondent to answer the formal charges subjects the
respondent to a judgment on the formal charges filed.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

8. Records: Appeal and Error. a party’s brief may not expand the eviden-
tiary record.
9. Disciplinary Proceedings. the determination of an appropriate penalty to be
imposed on an attorney requires consideration of any aggravating or mitigat-
ing factors.
original action. Judgment of disbarment.
kent 	L. 	Frobish, 	assistant 	Counsel 	for 	Discipline, 	for
relator.
stephen L. smith, pro se.
heAviCAN, 	C.J., 	W right , 	C oNNolly , 	gerrArd , 	S tephAN,
mCC ormACk , and miller -lermAN, JJ.
per C uriAm .
Nature oF Case
the office of the Counsel for Discipline of the Nebraska
supreme Court, relator, filed formal charges against respon-
dent, stephen L. smith, a member of the Nebraska state bar
association. respondent did not file an answer or otherwise
respond to the formal charges. relator moved for judgment on
the pleadings pursuant to Neb. Ct. r. of Discipline 10(I) (rev.
2005). We granted the motion in part and heard oral argument.
the sole issue before the court is the appropriate discipline to
be imposed.
stateMeNt oF FaCts
respondent was admitted to the practice of law in the state
of Nebraska on september 22, 1994. the formal charges alleged
that respondent violated certain disciplinary rules and his oath
of office as an attorney. the charges related to respondent’s
representation of thomas J. kawa.
In February 2005, kawa hired respondent to represent him
on several matters, and kawa delivered a check for $3,000 as
a deposit. the formal charges alleged that respondent did not
deposit the funds into his attorney trust account. on april 6,
2006, kawa filed a grievance against respondent with rela-
tor, alleging, in part, that respondent had failed to provide an
accounting of kawa’s advance payment. relator sent respondent
a copy of kawa’s grievance letter on april 12, and respondent
state ex reL. CouNseL For DIs. v. sMItH 	231
Cite as 275 Neb. 230

232 	275 Nebraska reports
was asked to provide a written response. When no response had
been received by May 15, relator sent a second request. again,
relator received no response from respondent, and a third letter
was sent on June 9.
respondent provided his initial response to kawa’s griev-
ance on June 19, 2006. In it, respondent provided an account-
ing of payments from his trust account purportedly related to
kawa’s cases. However, two of the payments allegedly made
from respondent’s trust account were dated prior to the time
he received any funds from kawa: a check dated December
21, 2003, and a check dated May 12, 2004. respondent’s
accounting showed that a total of $3,289.37 had been with-
drawn from his trust account purportedly for expenses related
to kawa’s cases.
on July 13, 2006, relator sent respondent a letter asking him
to provide evidence of the date on which he deposited kawa’s
advance payment into respondent’s trust account and to explain
the withdrawal of $289.73 in excess of the $3,000 paid by
kawa. respondent was asked to respond by July 21.
No response was received, and relator filed a formal griev-
ance pursuant to Neb. Ct. r. of Discipline 9(D) (rev. 2001) on
september 1, 2006. Notice was sent to respondent by certified
mail. respondent provided a written response on september
20, but it did not answer the questions raised by relator, includ-
ing the date on which respondent deposited the $3,000 paid by
kawa into his trust account, the withdrawal of $472.28 from
the trust account before respondent received any funds from
kawa, and the withdrawal from the trust account of $289.37 in
excess of the $3,000 paid by kawa.
relator again wrote to respondent on september 22, october
11, and November 2, 2006. respondent was informed that if he
failed to respond, relator would seek temporary suspension of
respondent’s license to practice law. on November 8, respon-
dent provided copies of his monthly bank statements related to
the attorney trust account. the records showed no deposit that
corresponded with the $3,000 payment made by kawa. the
statements indicated that the balance was at various times below
the amount that should have remained from kawa’s funds.

according to relator, the review of the bank statements
showed that respondent was improperly using the trust account
as a business account or as his personal checking account by
leaving personal funds in the account and using the account to
pay personal expenses.
on November 14, 2006, relator wrote to respondent to request
additional information about kawa’s funds and the use of
respondent’s trust account. respondent was directed to respond
by November 22. He did not respond until January 24, 2007.
upon the recommendation of the Committee on Inquiry of
the second Disciplinary District, formal charges were filed
against respondent on april 16, 2007. the charges stated
that respondent’s acts and omissions that occurred prior to
september 1, 2005, constituted violations of his oath of office
as an attorney and the following provisions of the Code of
professional responsibility: Canon 1, Dr 1-102(a)(1), and
Canon 9, Dr 9-102(a)(1) and (2). those acts and omissions
that occurred after september 1, 2005, constituted violations
of respondent’s oath of office as an attorney and Neb. Ct. r.
of prof. Cond. 8.4 (rev. 2005). on May 22, 2007, respondent
was personally served with a summons and formal charges.
respondent did not file an answer to the charges. on august
29, this court granted in part relator’s motion for judgment on
the pleadings, finding that “respondent has violated Code as
alleged in formal charges.”
staNDarD oF reVIeW
[1] a proceeding to discipline an attorney is a trial de novo
on the record. State ex rel. Counsel for Dis. v. Petersen, 272
Neb. 975, 725 N.W.2d 845 (2007).
aNaLYsIs
the basic issues in a disciplinary proceeding against a law-
yer are whether discipline should be imposed and, if so, the
type of discipline appropriate under the circumstances. State ex
rel. Counsel for Dis. v. Dortch, 273 Neb. 667, 731 N.W.2d 594
(2007). 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. State ex rel. Counsel for Dis. v. Jones,
state ex reL. CouNseL For DIs. v. sMItH 	233
Cite as 275 Neb. 230

234 	275 Nebraska reports
270 Neb. 471, 704 N.W.2d 216 (2005). 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 argument is given before disbarment is
ordered. see id., citing disciplinary rule 10(I).
the formal charges alleged that respondent violated the fol-
lowing provisions of the Code of professional responsibility:
Dr 1-102 Misconduct.
(a) a lawyer shall not:
(1) Violate a Disciplinary rule.
. . . .
Dr 9-102 preserving Identity of Funds and property of
a Client.
(a) all funds of clients paid to a lawyer or law firm
shall be deposited in an identifiable account or accounts
maintained in the state in which the law office is situated
in one or more state or federally chartered banks, sav-
ings banks, savings and loan associations, or building and
loan associations insured by the Federal Deposit Insurance
Corporation, and no funds belonging to the lawyer or law
firm shall be deposited therein except as follows:
(1) Funds reasonably sufficient to pay account charges
may be deposited therein.
(2) Funds belonging in part to a client and in part pres-
ently or potentially to the lawyer or law firm must be
deposited therein, but the portion belonging to the lawyer
or law firm may be withdrawn when due unless the right
of the lawyer or law firm to receive it is disputed by the
client, in which event the disputed portion shall not be
withdrawn until the dispute is finally resolved.
the formal charges also alleged that respondent violated
rule 	8.4 	of 	the 	Nebraska 	rules 	of 	professional 	Conduct,
which states:
ruLe 8.4 MIsCoNDuCt
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;
. . . .

(d) engage in conduct that is prejudicial to the admin-
istration of justice.
[2] Neb. Ct. r. of Discipline 4 (rev. 2004) provides that
the following may be considered by the court as sanctions for
attorney misconduct: (1) disbarment; (2) suspension for a fixed
period of time; (3) probation in lieu of or subsequent to suspen-
sion, on such terms as the court may designate; (4) censure and
reprimand; or (5) temporary suspension. State ex rel. Counsel
for Dis. v. Dortch, 273 Neb. 667, 731 N.W.2d 594 (2007).
[3,4] 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. Id.
to determine whether and to what extent discipline should be
imposed in a lawyer discipline proceeding, this court consid-
ers 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. Id.
relator suggests that the appropriate sanction in this case is
disbarment. respondent did not respond to the initial requests
by relator until more than 2 months had passed and after relator
had sent three letters asking for a response to kawa’s grievance.
respondent’s first response indicated he had made payments
out of his trust account prior to the date he received funds from
kawa. relator asked for additional information about the trust
account, and again, respondent did not respond. respondent
was sent notice that the grievance letter had been upgraded to a
formal grievance on september 1, 2006, and he did not respond
until september 20. the response did not answer relator’s ques-
tions about the deposit of kawa’s funds into the trust account,
about the withdrawal of funds prior to the receipt of kawa’s
deposit, or about the withdrawal of an amount in excess of
kawa’s deposit.
relator sought additional records on september 22, 2006,
and again, respondent did not respond until three requests had
been made. When respondent provided copies of his monthly
bank statements on November 8, a review showed that there
was no record of the $3,000 deposit from kawa and that the
state ex reL. CouNseL For DIs. v. sMItH 	235
Cite as 275 Neb. 230

236 	275 Nebraska reports
trust account had fallen below the balance it should have had
on more than one occasion. on November 14, relator asked
respondent to address concerns that arose from the review
of the trust account bank statements. respondent did not
answer until January 24, 2007. and respondent did not file an
answer to the formal charges or to the motion for judgment on
the pleadings.
[5,6] this court has stated that responding to disciplinary
complaints in an untimely manner and repeatedly ignoring
requests for information from the Counsel for Discipline indi-
cate disrespect for this court’s disciplinary jurisdiction and a
lack of concern for the protection of the public, the profes-
sion, and the administration of justice. State ex rel. Counsel
for Dis. v. Jones, 270 Neb. 471, 704 N.W.2d 216 (2005). We
have also held that an attorney’s failure to respond to inquiries
and requests for information from the office of the Counsel
for Discipline is a grave matter and a threat to the credibility
of attorney disciplinary proceedings. State ex rel. NSBA v.
Rothery, 260 Neb. 762, 619 N.W.2d 590 (2000).
Disciplinary rule 9(e) provides in part:
upon receipt of notice of a Grievance from the Counsel
for Discipline, the member against whom the Grievance
is directed shall prepare and submit to the Counsel for
Discipline, in writing, within fifteen working days of
receipt of such notice, an appropriate response to the
Grievance, or a response stating that the member refuses
to answer substantively and explicitly asserting constitu-
tional or other grounds therefor.
In addition, Neb. Ct. r. of Discipline 3(b) (rev. 2005) provides
that acts or omissions by a member which violate the Nebraska
rules of professional Conduct (or the Code of professional
responsibility if the act or omission occurred prior to september
1, 2005) shall be grounds for discipline.
[7] thus, respondent is subject to discipline for his failure
to timely and adequately respond to requests for information
from relator. the failure of a respondent to answer the formal
charges subjects the respondent to a judgment on the formal
charges filed. State ex rel. Counsel for Dis. v. Dortch, 273 Neb.
667, 731 N.W.2d 594 (2007).

[8] the only information we have before us from respondent
is his brief. In it, he attempts to provide an explanation for the
problems with his trust account. the majority of respondent’s
brief blames kawa for respondent’s difficulties. the two appar-
ently had a business arrangement that ended in litigation which
is still pending. However, we have held on numerous occasions
that a party’s brief may not expand the evidentiary record.
In re Estate of Baer, 273 Neb. 969, 735 N.W.2d 394 (2007).
respondent did not provide any of this information prior to the
filing of formal charges.
the formal charges alleged that respondent violated the
disciplinary rules related to preserving the identity of funds
and property of a client and engaged in conduct that is preju-
dicial to the administration of justice. respondent was unable
to provide an adequate explanation of how he disbursed funds
from his trust account prior to receiving a deposit from kawa
and of how he disbursed more than $3,000 from the account.
In fact, his bank records did not show a corresponding deposit
of $3,000.
Issues related to trust accounts are serious matters, and this
court has ordered the disbarment of attorneys who violated
disciplinary rules regarding trust accounts, mishandled client
funds, and failed to cooperate with the Counsel for Discipline
during disciplinary proceedings. see, State ex rel. Counsel for
Dis. v. Watts, 270 Neb. 749, 708 N.W.2d 231 (2005); State ex
rel. Counsel for Dis. v. Lechner, 266 Neb. 948, 670 N.W.2d 457
(2003); State ex rel. Special Counsel for Dis. v. Brinker, 264
Neb. 478, 648 N.W.2d 302 (2002); State ex rel. NSBA v. Howze,
260 Neb. 547, 618 N.W.2d 663 (2000).
[9] the determination of an appropriate penalty to be imposed
on an attorney requires consideration of any aggravating or miti-
gating factors. State ex rel. Counsel for Dis. v. Dortch, supra.
the record in this case does not allow us to consider any of
respondent’s allegations related to kawa as mitigating factors,
and we find no evidence of any such factors in the record. this
is the result, in part, of respondent’s failure to answer requests
for information from relator.
respondent failed to provide an adequate explanation for the
discrepancies in his trust account related to the representation
state ex reL. CouNseL For DIs. v. sMItH 	237
Cite as 275 Neb. 230

238 	275 Nebraska reports
of kawa. respondent’s actions demonstrate disrespect for this
court’s disciplinary jurisdiction. these actions also indicate a
lack of concern for the protection of the public, the profession,
and the administration of justice.
We have considered the undisputed allegations of the formal
charges and the applicable law. upon due consideration, the
court finds that respondent should be disbarred from the prac-
tice of law in the state of Nebraska.
CoNCLusIoN
the court finds that respondent violated Dr 1-102(a)(1), Dr
9-102(a)(1) and (2), rule 8.4, and his oath of office as an attor-
ney. We conclude that disbarment is the appropriate sanction.
It is therefore the judgment of this court that respondent be
disbarred from the practice of law in the state of Nebraska,
effective immediately. respondent is directed to comply with
Neb. Ct. r. of Discipline 16 (rev. 2004), and upon failure to do
so, respondent shall be subject to punishment for contempt of
this court. respondent is directed to pay costs and expenses in
accordance with Neb. rev. stat. §§ 7-114 and 7-115 (reissue
1997), disciplinary rule 10(p), and Neb. Ct. r. of Discipline 23
(rev. 2001) within 60 days after an order imposing costs and
expenses has been entered by this court.
J udgmeNt of diSbArmeNt .