State ex rel. Counsel for Dis. v. Kratins

S tate of nebraSka ex reL. counSeL for diScipLine of
the nebraSka S upreme court , reLator , v .
mark d. kratina , reSpondent .
746 N.W.2d 378
Filed april 4, 2008. 	No. s-07-578.
original action. Judgment of suspension.
heavican, 	C.J., 	wright, 	connoLLy, 	gerrard, 	S tephan,
mccormack, and miLLer -L erman, JJ.
per curiam.
INtroDUCtIoN
on May 25, 2007, formal charges were filed by the office
of the Counsel for Discipline, relator, against Mark D. kratina,
respondent. 	the 	formal 	charges 	included 	allegations 	that
respondent violated the following provisions of the Code of
professional responsibility: Canon 1, Dr 1-102(a)(1) (vio-
lating disciplinary rule); Dr 1-102(a)(5) (engaging in con-
duct prejudicial to administration of justice); and Canon 5,
Dr 5-103(b) (improperly advancing or guaranteeing financial
assistance to client), as well as the following provisions of Neb.
Ct. r. of prof. Cond. (rev. 2005): rules 1.8(e) (providing finan-
cial assistance to client), 8.4(a) (violating disciplinary rule),
and 8.4(d) (engaging in conduct prejudicial to administration of
justice). the formal charges also alleged that respondent vio-
lated his oath of office as an attorney, Neb. rev. stat. § 7-104
(reissue 1997). respondent’s answer in effect disputed certain
of the allegations.
a referee was appointed who heard evidence. the referee
filed a report on December 28, 2007. With respect to the for-
mal charges, the referee concluded that respondent’s conduct
had violated Dr 1-102(a)(1) and (5), Dr 5-103(b), rule 1.8(e)
and rule 8.4(a) and (d), and his oath as an attorney. the referee
recommended that respondent be suspended from the practice
of law for 60 days.
on January 7, 2008, respondent filed a motion for judgment
on the pleadings, requesting that this court accept the referee’s
recommendation and enter judgment thereon. also on January 7,
relator filed its response to respondent’s motion, in which relator
state ex reL. CoUNseL For DIs. v. kratINa 	401
Cite as 275 Neb. 401
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

402 	275 Nebraska reports
indicated it did not object to the motion. We grant respondent’s
motion, and we impose discipline as indicated below.
FaCts
the 	referee’s 	hearing 	was 	held 	on 	october 	30, 	2007.
respondent testified during the hearing. a total of seven exhib-
its were admitted into evidence.
the substance of the referee’s findings may be summarized
as follows: respondent was admitted to the practice of law in
the state of Nebraska in 1976. He has practiced in Douglas
County, Nebraska.
With regard to the allegations in the formal charges, the
referee found that respondent represented patricia Hill in a
personal injury case arising out of a trip-and-fall accident in
June 2004. as a result of her injury, Hill sustained a signifi-
cant knee injury, and she became unemployed. she remained
unemployed for the entire time period relevant to the present
disciplinary proceeding.
the referee found that during the pendency of Hill’s personal
injury case, respondent made certain payments to or on behalf
of Hill, including sums to pay for transportation and vehicle
expenses, health insurance premiums, and rent. With regard to
the transportation and vehicle expenses, the referee specifically
found that respondent advanced sums to Hill to pay cabfare so
that Hill could attend doctor’s appointments to receive medical
treatment related to her injury, to pay certain fines so that Hill
could have her driver’s license reinstated, to pay Hill’s motor
vehicle registration and licensing, to pay for repairs to Hill’s
vehicle, to pay for Hill’s loan payment on her car, and to pay to
redeem Hill’s car from repossession. the referee found that the
total amount respondent advanced to Hill exceeded $11,000.
In December 2006, kratina was able to successfully settle
Hill’s personal injury case for the total amount of $125,000.
pursuant to his fee agreement with Hill, kratina received as his
fee one-third of the settlement proceeds, and he was also reim-
bursed for all costs and expenses he had paid to or on behalf of
Hill during the pendency of the case.
In his report, the referee noted as mitigating factors respond-
ent’s cooperation during the disciplinary proceeding and the

fact that respondent was not motivated by self-interest or per-
sonal gain in making the advancements to Hill. the referee
also noted that Hill suffered no direct harm or loss as a result
of respondent’s actions. the referee noted as aggravating fac-
tors two prior reprimands respondent had received: on March
28, 1994, respondent received a private reprimand for the
mishandling of certain funds. on January 5, 2001, respondent
received a public reprimand as a result of an imbalance in his
trust account; however, as part of that public reprimand it was
stipulated that “‘no misappropriations had been shown and the
discrepancy in the account occurred due to mere negligence.’”
based upon the evidence offered during the hearing, the
referee found that certain of respondent’s actions constituted a
violation of the following provisions of the Code of professional
responsibility: Dr 1-102(a)(1) and (5) and Dr 5-103(b). the
referee also found that certain of respondent’s actions con-
stituted a violation of rule 1.8(e) and rule 8.4(a) and (d) of
the Nebraska rules of professional Conduct. Finally, the ref-
eree found that respondent’s actions constituted a violation of
respondent’s oath of office as an attorney. With respect to the
discipline to be imposed, the referee recommended that respond-
ent be suspended from the practice of law for 60 days.
No exceptions were filed to the referee’s report. on January
7, 2008, respondent filed a motion for judgment on the plead-
ings, in which respondent moved this court to enter judgment
in conformity with the referee’s report and recommendation.
on January 7, relator filed a response to the motion, stating
that “relator does not object to respondent’s [motion] that
the Court enter judgment based upon the referee’s report and
recommended sanction.”
aNaLYsIs
We note that certain of respondent’s conduct at issue in this
case occurred prior to the september 1, 2005, effective date
of the Nebraska rules of professional Conduct and is, there-
fore, governed by the now-superseded Code of professional
responsibility. 	We 	also 	note 	that 	certain 	of 	respondent’s
conduct at issue in this case occurred on or after september
1, 2005, and is therefore governed by the Nebraska rules of
state ex reL. CoUNseL For DIs. v. kratINa 	403
Cite as 275 Neb. 401

404 	275 Nebraska reports
professional Conduct. We are guided by the principles previ-
ously announced in our prior decisions under the Code of
professional responsibility. see State ex rel. Counsel for Dis. v.
Dortch, 273 Neb. 667, 731 N.W.2d 594 (2007).
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). to sustain a charge in a
disciplinary proceeding against an attorney, a charge must be
supported by clear and convincing evidence. Id. Violation of a
disciplinary rule concerning the practice of law is a ground for
discipline. Id.
as noted above, neither party filed written exceptions to the
referee’s report. pursuant to Neb. Ct. r. of Discipline 10(L)
(rev. 2005), respondent filed a motion for judgment on the
pleadings. When no exceptions to the referee’s findings of
fact are filed by either party in an attorney discipline proceed-
ing, the Nebraska supreme Court may, in its discretion, con-
sider the referee’s findings final and conclusive. State ex rel.
Counsel for Dis. v. Wickenkamp, 272 Neb. 889, 725 N.W.2d
811 (2007).
respondent is charged with advancing sums to his client
for such things as transportation and vehicle expenses, insur-
ance premiums, and rent. We note that the disciplinary rules
were mandatory before september 1, 2005, that a lawyer
“shall not advance or guarantee financial assistance to the cli-
ent” in connection with contemplated or pending litigation.
Dr 5-103(b). the disciplinary rules remained mandatory on
and after september 1, 2005, that a lawyer “shall not provide
financial assistance to a client in connection with pending
or contemplated litigation.” rule 1.8(e). both rules provide
exceptions for the advancement of litigation expenses, such
as court costs. However, we conclude that neither rule permits
an attorney to make advances to his or her client to pay for
the transportation and vehicle-related expenses, health insur-
ance premiums, and rent payments that were advanced in the
instant case. Compare, Attorney Griev. Comm’n v. Eisenstein,
333 Md. 464, 635 a.2d 1327 (1994) (stating that rule 1.8(e)
contains exceptions for court costs and litigation expense but
not for humanitarian acts); Rubenstein v. Statewide Grievance

Committee, No. CV020516965s, 2003 WL 21499265 (Conn.
super. June 10, 2003) (unpublished opinion) (discussing rule
1.8(e) and stating that lawyer must not advance money for rent
even under threat of eviction).
based upon the undisputed findings of fact in the referee’s
report, which we consider to be final and conclusive, we con-
clude the formal charges are supported by clear and convinc-
ing evidence, and the motion for judgment on the pleadings
is granted. specifically, based upon the foregoing evidence,
we conclude that by virtue of respondent’s conduct occurring
before september 1, 2005, respondent has violated the fol-
lowing provisions of the Code of professional responsibility:
Dr 1-102(a)(1) and (5) and Dr 5-103(b). We also conclude
that by virtue of respondent’s conduct occurring on or after
september 1, 2005, respondent has violated the following pro-
visions of the Nebraska rules of professional Conduct: rule
1.8(e) and rule 8.4(a) and (d). Finally, we conclude that by vir-
tue of respondent’s conduct, respondent has violated his oath
of office as an attorney, § 7-104.
We have stated that the basic issues in a disciplinary pro-
ceeding 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. Dortch, 273
Neb. 667, 731 N.W.2d 594 (2007). Neb. Ct. r. of Discipline 4
(rev. 2004) 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 desig-
nate; 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, rule 10(N).
state ex reL. CoUNseL For DIs. v. kratINa 	405
Cite as 275 Neb. 401

406 	275 Nebraska reports
With respect to the imposition of attorney discipline in an
individual case, we have stated that each attorney discipline
case must be evaluated individually in light of its particular
facts and circumstances. State ex rel. Counsel for Dis. v. Dortch,
supra. 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.
the determination of an appropriate penalty to be imposed on
an attorney in a disciplinary proceeding also requires the con-
sideration of any aggravating or mitigating factors. Id.
We have considered the referee’s report and recommenda-
tion, the findings of which have been established by clear
and convincing evidence, and the applicable law. Upon due
consideration of the record, the court finds that respondent
should be and hereby is suspended from the practice of law
for a period of 60 days, effective immediately. respondent
shall comply with Neb. Ct. r. of Discipline 16 (rev. 2004),
and upon failure to do so, he shall be subject to punishment
for contempt of this court. at the end of the 60-day suspension
period, respondent may apply to be reinstated to the practice of
law, provided that respondent has demonstrated his compliance
with rule 16, and further provided that relator has not notified
this court that respondent has violated any disciplinary rule
during his suspension.
CoNCLUsIoN
We find by clear and convincing evidence that respondent
violated Dr 1-102(a)(1) and (5), Dr 5-103(b), rule 1.8(e) and
rule 8.4(a) and (d), and his oath as an attorney. It is the judg-
ment of this court that respondent be suspended from the prac-
tice of law for a period of 60 days. respondent shall comply
with disciplinary rule 16, and upon failure to do so, he shall be
subject to punishment for contempt of this court. Furthermore,
respondent is directed to pay costs and expenses in accordance
with Neb. rev. stat. §§ 7-114 and 7-115 (reissue 1997), disci-
plinary rule 10(p), and Neb. Ct. r. of Discipline 23 (rev. 2001)
within 60 days after an order imposing costs and expenses, if
any, is entered by this court.
J udgment of SuSpenSion .