State ex rel. Counsel for Dis. v. Lindmeier

be signed by Ruffin’s attorney. Jurisdiction did not vest in the
appellate courts. Therefore, on further review, we affirm the
order of the Court of Appeals which dismissed this appeal for
lack of jurisdiction.
A ffirmed.
H eAvicAn, C.J., not participating.
StAte of nebrASkA ex rel . counSel for diScipline
of tHe nebrASkA Supreme court, relAtor , v.
tHomAS J. lindmeier , reSpondent.
788 N.W.2d 555
Filed September 17, 2010. 	No. S-09-1079.
Original action. Judgment of suspension.
Kent 	L. 	Frobish, Assistant 	Counsel 	for 	Discipline, 	for
relator.
David J. Cullan for respondent.
H eAvicAn, 	c.J., 	WrigHt, 	connolly, 	gerrArd, 	StepHAn,
mccormAck , and miller-lermAn, JJ.
per curiAm.
INTRODUCTION
Respondent, Thomas J. Lindmeier, was admitted to the
practice of law in the State of Nebraska on July 2, 1976. At all
relevant times, he was engaged in the private practice of law
in Omaha, Nebraska. On October 30, 2009, the Counsel for
Discipline of the Nebraska Supreme Court filed formal charges
consisting of two counts against respondent. In the first count,
it was alleged that by his conduct in July and August 2008 with
respect to a client matter, respondent violated his oath of office
as an attorney and various provisions of the Nebraska Rules of
Professional Conduct. In the second count, it was alleged that
by his conduct in August and September 2008 with respect to
a different client matter, respondent violated his oath of office
as an attorney and two provisions of the Nebraska Rules of
620 	280 NebRASKA RePORTS
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Professional Conduct. Respondent filed an answer in which
he admitted some and denied other allegations included in the
formal charges.
This court appointed a referee, who conducted an evidentiary
hearing and issued a report including findings of fact, conclu-
sions of law, and a recommended sanction. On count I, the
referee found by clear and convincing evidence that respondent
had violated his oath of office and Neb. Ct. R. of Prof. Cond.
§§ 3-501.5(e)(2) (fees), 3-501.15(c) (safekeeping property), and
3-508.4(a) (misconduct). The referee further determined that
the evidence did not establish a violation of § 3-501.4(b) (com-
munications), as alleged in the formal charges. On count II, the
referee found by clear and convincing evidence that respondent
had violated his oath of office and §§ 3-501.15(a), (b), and
(c) (safekeeping property) and 3-508.4(a) (misconduct). As a
sanction for these violations, the referee recommended that
respondent’s license to practice law should be suspended for a
period of 6 months and that, upon reinstatement, he should be
on probation for a period of 2 years during which time he must
retain, at his expense, an accountant to audit his trust account
every 6 months, for a period of 2 years, and submit the results
of those audits to the Counsel for Discipline.
Respondent filed exceptions to the referee’s report in which
he requested that the report of the referee be amended to pro-
vide for a suspension of no more than 3 months, together with
the other terms and conditions recommended by the referee.
before the matter was argued and submitted, respondent filed
a conditional admission under Neb. Ct. R. § 3-313 in which he
stated that he knowingly did not challenge or contest the facts
as found by the referee and waived all proceedings against
him in connection therewith in exchange for a judgment of
discipline identical to that recommended by the referee. The
proposed conditional admission included a declaration by the
Counsel for Discipline stating that the sanction recommended
by the referee was appropriate and requesting this court to
enter an order of suspension and probation as recommended by
the referee and requested by the respondent. Upon due consid-
eration, the court approves the conditional admission.
STATe ex ReL. COUNSeL FOR DIS. v. LINDmeIeR 	621
Cite as 280 Neb. 620

FACTS
count i
The referee found that the following facts pertaining to
count I of the formal charges were established by clear and
convincing evidence: In July and August 2008, respondent
had a personal checking account and a client trust account
at an Omaha bank, but he had no separate business checking
account. Respondent was the only person authorized to write
checks and make withdrawals from his trust account. He wrote
checks for personal expenses on both the trust account and the
personal checking account, and he occasionally deposited his
own funds in the trust account to prevent an overdraft.
In July 2008, respondent was contacted by a couple regard-
ing possible representation of their son in a criminal matter.
Respondent testified that he told the couple that he would do
some initial research, but because he was inexperienced in
criminal law, he would refer the case to an experienced crimi-
nal defense attorney and would work with that attorney on the
case. Respondent initially requested a $10,000 fee to represent
the couple’s son, but accepted $4,000 on July 28 when the
couple signed a fee agreement. The agreement did not mention
the retention of cocounsel or address the division of the $4,000
advanced fee between respondent and the other attorney.
On the same day the $4,000 advanced fee was received,
respondent deposited $2,000 of the advanced fee into his per-
sonal account and the remaining $2,000 into his trust account.
This resulted in a trust account balance of $2,312.83 at the end
of that day. On July 29, 2008, respondent withdrew $802.98
from his trust account, leaving a balance of only $1,509.85.
And on August 3, respondent gave the attorney with whom
he said he would work on the criminal matter a $2,000 check
drawn on the trust account. At the time he received this check,
the attorney had not yet earned a fee in that amount.
Respondent testified that he deposited $2,000 of the advanced
fee into his personal account because he had already earned at
least $2,000 at the time he received the check. but this testi-
mony was refuted by respondent’s own billing statement dated
August 4, 2008. The billing statement did not reflect the $2,000
622 	280 NebRASKA RePORTS

payment to the other attorney and indicated that $986.60 of the
advanced fee remained in the trust account. On the date of the
statement, however, only $331.97 remained in respondent’s
trust account.
The referee found that (1) respondent did not obtain the
clients’ written consent to the fee-division agreement with
the other attorney; (2) respondent failed to deposit the entire
$4,000 advanced fee into the client trust account and withdraw
funds only as fees were earned; and (3) respondent paid the
other attorney $2,000 before he had earned that amount in
fees. From these facts, the referee concluded that respondent
violated §§ 3-501.5(e)(2), 3-501.15(c), and 3-508.4(a) and (c).
The referee found that the evidence did not establish a viola-
tion of § 3-501.4(b), as alleged in count I of the formal charges,
because respondent sufficiently explained to his clients his lack
of experience in criminal law and the role the other attorney
would play in the criminal case.
count ii
In 2007 and 2008, respondent was separately retained by
a husband and wife to represent them with respect to per-
sonal injury and property damage claims arising from a motor
vehicle accident. both clients signed fee agreements stating
that respondent would receive a 331⁄3-percent contingency fee
on all moneys received from settlement before filing suit.
Respondent negotiated a settlement of the wife’s claim for
$1,222. Of this amount, a $158 subrogation claim was paid
directly by the settling party, and the remaining $1,064 was
paid by a check dated August 7, 2008, payable to respondent
and his client. Pursuant to the fee agreement, respondent was
entitled to $407.33 of this amount and his client was entitled
to the remaining $656.67.
At various times during August and September 2008, respond-
ent’s trust account balance fell below the amount due his cli-
ent from the settlement. During this same period, respondent
deposited personal funds in his trust account and paid personal
expenses from that account. From these facts, the referee con-
cluded that respondent violated §§ 3-501.15(a), (b), and (c),
and 3-508.4(a).
STATe ex ReL. COUNSeL FOR DIS. v. LINDmeIeR 	623
Cite as 280 Neb. 620

ANALYSIS
Section 3-313, which is a component of our rules governing
attorney disciplinary proceedings, provides in pertinent part:
(b) At any time after the Clerk has entered a Formal
Charge against a Respondent on the docket of the Court,
the Respondent may file with the Clerk a conditional
admission of the Formal Charge in exchange for a stated
form of consent judgment of discipline as to all or part of
the Formal Charge pending against him or her as deter-
mined to be appropriate by the Counsel for Discipline
or any member appointed to prosecute on behalf of the
Counsel for Discipline; such conditional admission is
subject to approval by the Court. The conditional admis-
sion shall include a written statement that the Respondent
knowingly admits or knowingly does not challenge or
contest the truth of the matter or matters conditionally
admitted and waives all proceedings against him or her in
connection therewith. If a tendered conditional admission
is not finally approved as above provided, it may not be
used as evidence against the Respondent in any way.
Pursuant to § 3-313, and given the conditional admission, we
find that respondent knowingly does not challenge or contest
the findings of the referee with respect to the formal charges,
which we now deem to be established facts. We further deter-
mine that by his conduct with respect to count I of the formal
charges, respondent violated §§ 3-501.5(e)(2), 3-501.15(c), and
3-508.4(a) and (c), as well as his oath of office as an attorney
licensed to practice law in the State of Nebraska. Further, we
determine that by his conduct with respect to count II of the
formal charges, respondent violated §§ 3-501.15(a), (b), and
(c) and 3-508.4(a), as well as his oath of office as an attorney
licensed to practice law in the State of Nebraska. Respondent
has waived all additional proceedings against him in connec-
tion herewith, and upon due consideration, the court approves
the conditional admission.
CONCLUSION
Respondent is suspended from the practice of law for
a period of 6 months, effective 30 days after the filing of
624 	280 NebRASKA RePORTS

this opinion. Should respondent apply for reinstatement, his
reinstatement shall be conditioned upon respondent’s being
on probation for a period of 2 years following reinstate-
ment, subject to the terms agreed to by respondent in the
conditional admission and outlined above. 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.
Respondent is also 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(b) within 60
days after the order imposing costs and expenses, if any, is
entered by the court.
Judgment of SuSpenSion.
STATe ex ReL. COUNSeL FOR DIS. v. HOWeLL 	625
Cite as 280 Neb. 625
StAte of nebrASkA ex rel . counSel for diScipline
of tHe nebrASkA Supreme court, relAtor , v.
W. crAig HoWell , reSpondent.
788 N.W.2d 559
Filed September 17, 2010. 	No. S-10-627.
Original action. Judgment of disbarment.
H eAvicAn, 	c.J., 	WrigHt, 	connolly, 	gerrArd, 	StepHAn,
mccormAck , and miller-lermAn, JJ.
per curiAm.
INTRODUCTION
This case is before the court on the voluntary surrender
of license filed by respondent, W. Craig Howell. The court
accepts respondent’s surrender of his license and enters an
order of disbarment.
STATemeNT OF FACTS
Respondent was admitted to the practice of law in the State
of Nebraska.
Respondent is currently under investigation by the office
of the Counsel for Discipline of the Nebraska Supreme Court