State ex rel. Counsel for Dis. v. Tarvin

State of NebraSka ex rel . C ouNSel for D iSCipliNe of
the NebraSka Supreme C ourt, relator , v.
DaviD r. tarviN, Jr ., reSpoNDeNt.
777 N.W.2d 841
Filed February 5, 2010. 	No. S-09-529.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. ____. 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.
3. ____. 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.
4. ____. 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.
5. ____. With respect to the imposition of attorney discipline in an individual case,
the Nebraska Supreme Court evaluates each attorney discipline case in light of its
particular facts and circumstances.
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. ____. The determination of an appropriate penalty to be imposed on an attorney
requires consideration of any aggravating or mitigating factors.
8. ____. Cumulative acts of attorney misconduct are distinguishable from isolated
incidents, therefore justifying more serious sanctions.
9. ____. Absent mitigating circumstances, the appropriate discipline in cases of
misappropriation or commingling of client funds is disbarment.
Original action. Judgment of disbarment.
John 	W. 	Steele, 	Assistant 	Counsel 	for 	Discipline, 	for
relator.
No appearance for respondent.
heaviCaN, 	C.J., 	Wright, 	C oNNolly, 	gerrarD, 	StephaN,
mCC ormaCk, and miller-lermaN, JJ.
per C uriam.
INTRODUCTION
The Counsel for Discipline of the Nebraska Supreme Court
filed formal charges and additional formal charges against
STATe ex Rel. COUNSel FOR DIS. v. TARvIN 	399
Cite as 279 Neb. 399
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

respondent, David R. Tarvin, Jr. In the charges, the Counsel for
Discipline alleged that respondent violated his oath of office as
an attorney licensed to practice law in the State of Nebraska
and various provisions of the Nebraska Rules of Professional
Conduct based on his felony convictions involving theft of cli-
ent funds and allegations that he has neglected client matters.
This court granted judgment on the pleadings as to the facts in
the formal charges and the additional formal charges and set
the matter for oral argument. After reviewing the matter, we
find that the proper sanction is disbarment.
STATeMeNT OF FACTS
This case originated through a grievance filed with the
Counsel for Discipline against respondent alleging that respond-
ent may have misused client funds. While the matter was under
investigation by the Counsel for Discipline, in January 2008,
the Douglas County Attorney filed criminal charges against
respondent for felony theft.
In March 2008, an attorney submitted a detailed report
under oath to the Counsel for Discipline describing another
instance in which respondent had allegedly misused client
funds. Based on the report, the chairperson for the Committee
on Inquiry of the Second Disciplinary District, in consulta-
tion with the Counsel for Discipline, applied for temporary
suspension of respondent. This court issued an order on April
9, 2008, for respondent to show cause why he should not be
suspended. Respondent did not respond to the show cause
order. On May 7, this court temporarily suspended respond-
ent in State ex rel. Counsel for Discipline v. Tarvin, case
No. S-08-320.
After respondent was found guilty in the criminal case,
formal charges were filed against him on May 29, 2009.
Additional formal charges were filed against respondent simul-
taneously. This court entered judgment on the pleadings as to
the facts in this case on August 26.
The facts as pled in the formal charges and additional formal
charges state as follows: The Nebraska Supreme Court admit-
ted respondent to the practice of law on September 24, 1996.
At the times relevant to this case, respondent had been engaged
400 	279 NeBRASkA RePORTS

in the private practice of law with an office located in Douglas
County, Nebraska.
On January 17, 2008, respondent was charged in the district
court for Douglas County with one count of theft by unlaw-
ful taking (an amount exceeding $1,500), a felony. The theft
involved client funds held by respondent. On May 12, respond-
ent was charged in the district court for Douglas County with
an additional count of theft by unlawful taking (an amount
exceeding $1,500), a felony. The second charge involved funds
of another client. On December 11, respondent entered a
no contest plea to two counts of attempted felony theft. On
February 19, 2009, respondent was found guilty of both counts
and sentenced to, inter alia, 180 days in the Douglas County
Correctional Center, placed on 5 years’ probation, and ordered
to make restitution in the amount of $15,264.43.
The Counsel for Discipline alleges in the formal charges
that the foregoing acts of respondent constitute a violation
of his oath of office as an attorney licensed to practice law
in the State of Nebraska, as provided by Neb. Rev. Stat.
§ 7-104 (Reissue 2007), and a violation of the Nebraska
Rules of Professional Conduct, Neb. Ct. R. of Prof. Cond.
§ 3-508.4 (misconduct).
Pursuant to Neb. Ct. R. § 3-310(F), the Counsel for Discipline
filed additional formal charges against respondent. The addi-
tional charges allege that on January 30, 2007, respondent was
retained by Melissa laChapelle to prosecute a stepparent adop-
tion. The biological father had agreed to relinquish his parental
rights and agreed to the adoption. Respondent and laChapelle
entered into a written fee agreement, and laChapelle paid the
agreed-upon fee of $750 at the time of signing the agreement.
Thereafter, laChapelle answered a form questionnaire pro-
vided to her by respondent regarding the biological father so
that the necessary pleadings could be prepared and service had
on the biological father.
For over a year, laChapelle and her family members made
repeated attempts to contact respondent to find out the status of
the case with little to no success. When laChapelle was able
to contact respondent, he explained that he was having trouble
obtaining service on the biological father. By February 1,
STATe ex Rel. COUNSel FOR DIS. v. TARvIN 	401
Cite as 279 Neb. 399

2008, respondent still had not obtained service on the biologi-
cal father, and again laChapelle provided respondent with the
contact information for the biological father, including his
Social Security number, his cellular telephone number, and
his address.
On or about April 2, 2008, respondent advised laChapelle
that he received a faxed copy of the signed relinquishment
papers from the biological father. The biological father advised
laChapelle that he had sent the signed original to respondent by
certified mail. laChapelle never heard from respondent again,
despite her attempts to contact him. laChapelle’s mother spoke
with respondent on the telephone on May 9. Respondent advised
her that he was sending a letter to laChapelle. laChapelle has
not received any communication from respondent since she
spoke with him on April 2.
Respondent has not refunded any of the $750 that laChapelle
paid to him to prosecute her case. Respondent failed to file
any pleadings on behalf of laChapelle to effect the step-
parent adoption.
In a separate matter, respondent was retained by Julie
Alfaro, formerly known as Julie Hoffa, to represent her in an
action to dissolve her marriage. She was referred to respondent
by her therapist, respondent’s mother-in-law. Alfaro decided
to retain respondent because he had returned her calls and
seemed anxious to take the case. Alfaro met with and retained
respondent on October 25, 2006, paying him $1,000, and
she provided him with the necessary information to file the
divorce. Respondent did file a complaint for the dissolution
within 2 weeks of meeting with Alfaro, but thereafter did little
work on the case.
Almost 	immediately 	after 	retaining 	respondent, 	Alfaro
experienced difficulty communicating with respondent. When
Alfaro was unable to contact respondent, she retained another
attorney, who took over the case and saw it to conclusion.
The Counsel for Discipline alleges that this conduct by
respondent constitutes a violation of his oath of office as an
attorney licensed to practice law in the State of Nebraska, as
provided by § 7-104, and violations of the following provisions
of the Nebraska Rules of Professional Conduct: Neb. Ct. R. of
402 	279 NeBRASkA RePORTS

Prof. Cond. §§ 3-501.3 (diligence), 3-501.4 (communications),
and 3-501.16 (declining or terminating representation).
The Counsel for Discipline asks that this court disbar
respondent.
ANAlYSIS
[1-3] A proceeding to discipline an attorney is a trial de
novo on the record. State ex rel. Counsel for Dis. v. Smith, 275
Neb. 230, 745 N.W.2d 891 (2008). 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. Id. 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. State ex rel. Counsel for Dis. v.
Wickenkamp, 277 Neb. 16, 759 N.W.2d 492 (2009).
[4] 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. Id.
In the instant case, on August 26, 2009, this court granted the
Counsel for Discipline’s motion for judgment on the pleadings
as to the facts; therefore, the only issue before us is the type of
discipline to be imposed.
Neb. Ct. R. § 3-304 provides that the following may be con-
sidered 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.
See, also, § 3-310(N).
[5] With respect to the imposition of attorney discipline in
an individual case, we evaluate each attorney discipline case
STATe ex Rel. COUNSel FOR DIS. v. TARvIN 	403
Cite as 279 Neb. 399

in light of its particular facts and circumstances. See State ex
rel. Counsel for Dis. v. Wintroub, 277 Neb. 787, 765 N.W.2d
482 (2009).
In its brief and at oral argument, the Counsel for Discipline
asked that this court disbar respondent. At oral argument,
the Counsel for Discipline entered into evidence two prior
private reprimands against respondent issued in January and
February 2008.
[6,7] To determine whether and to what extent discipline
should be imposed in a lawyer discipline proceeding, this
court considers 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. We have also noted that the determination of an
appropriate penalty to be imposed on an attorney requires con-
sideration of any aggravating or mitigating factors. State ex rel.
Counsel for Dis. v. Wickenkamp, supra. We have considered
prior reprimands as aggravators. Id.
[8,9] Furthermore, cumulative acts of attorney misconduct
are distinguishable from isolated incidents, therefore justifying
more serious sanctions. State ex rel. Counsel for Discipline v.
Wintroub, supra. Absent mitigating circumstances, the appro-
priate discipline in cases of misappropriation or commingling
of client funds is disbarment. State ex rel. NSBA v. Malcom,
252 Neb. 263, 561 N.W.2d 237 (1997).
As in Wintroub, where we imposed the sanction of disbar-
ment, the record in this case reflects a pattern of misconduct
by respondent involving both neglect and deceit for personal
gain. The facts alleged in the formal charges, which stand
as established in this case, demonstrate respondent was con-
victed of two felonies involving theft of client funds. The
facts in the amended formal complaint demonstrate a pattern
by respondent of improperly handling the cases entrusted to
him. The two prior private reprimands further support the
imposition of the Counsel for Discipline’s suggested discipline
of disbarment.
404 	279 NeBRASkA RePORTS

Respondent did not respond to the charges filed against
him and has failed to present any evidence of mitigating
circumstances.
Upon due consideration of the facts of this case, based on
respondent’s cumulative acts of misconduct, including conduct
that involved deceit for personal gain, the court finds that the
proper sanction is disbarment.
CONClUSION
The judgment on the pleadings is granted in its entirety. It
is the judgment of this court that respondent should be and
is hereby disbarred from the practice of law, effective imme-
diately. Respondent is directed to pay costs and expenses in
accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue
2007) and § 3-310(P) and Neb. Ct. R. § 3-323(B) within 60
days after an order imposing costs and expenses, if any, is
entered by the court.
JuDgmeNt of DiSbarmeNt.
State of NebraSka , appellee , v.
germai r. moliNa , appellaNt.
778 N.W.2d 713
Filed February 5, 2010. 	No. S-09-619.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
2. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
3. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective assistance of counsel, an appellate court reviews the factual findings of
the lower court for clear error. With regard to the questions of counsel’s perform-
ance or prejudice to the defendant as part of the two-pronged test articulated in
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 l. ed. 2d 674 (1984),
an appellate court reviews such legal determinations independently of the lower
court’s decision.
4. Postconviction: Judgments: Appeal and Error. Whether a claim raised in a
postconviction proceeding is procedurally barred is a question of law. When
reviewing a question of law, an appellate court resolves the question indepen-
dently of the lower court’s conclusion.
STATe v. MOlINA 	405
Cite as 279 Neb. 405