State ex rel. Counsel for Dis. v. Pierson

lose and much to be gained by letting a different judge examine
the parties’ motions for summary judgment.
We find it unnecessary and inappropriate in this case to
address the underlying merits of the motions. An analysis
of whether Judge Murphy’s decision was correct could not
adequately erase the taint of his bias or the appearance of such
bias. Not only for the sake of the parties, but for the public as
a whole and its faith in the judicial system, we conclude that
the Court of Appeals’ judgment must be reversed. We express
no implicit or explicit approval of the Court of Appeals’ legal
conclusions regarding the construction of the permit and con-
tract here in dispute, but hold that the Court of Appeals erred in
applying a harmless error analysis to Judge Murphy’s failure to
recuse himself from the summary judgment hearing.
CONCLUSION
We find the grounds alleged under the Nebraska Code of
Judicial Conduct sufficiently serious to warrant vacatur. We
reverse, and remand to the Court of Appeals with directions
to vacate the judgment below and remand the cause for a
new summary judgment hearing before another judge to be
appointed by this court.
R eveRsed and Remanded with diRections.
wRight, J., not participating.
StAte ex reL. COUNSeL fOr dIS. v. pIerSON 	673
Cite as 281 Neb. 673
state of nebRaska ex Rel . counsel foR discipline of
the nebRaska supReme couRt, RelatoR, v.
RobeRt J. pieRson, Respondent.
798 N.W.2d 580
filed June 3, 2011. 	No. S-10-304.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. Disciplinary Proceedings: Proof. to sustain a charge in a disciplinary proceed-
ing against an attorney, the Counsel for discipline must establish a charge by
clear and convincing evidence.
3. Disciplinary Proceedings: Appeal and Error. When no exceptions to the
referee’s findings of fact are filed, the Nebraska Supreme Court may consider the
referee’s findings final and conclusive.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

4. Disciplinary Proceedings. 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. ____. to determine whether and to what extent discipline should be imposed in
an attorney 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.
6. ____. In imposing attorney discipline, the Nebraska Supreme Court evaluates
each case in the light of its particular facts and circumstances.
7. ____. In 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.
8. ____. When determining appropriate discipline of an attorney, the Nebraska
Supreme Court considers aggravating and mitigating factors.
9. ____. In a disciplinary proceeding, an isolated incident not representing a pattern
of conduct is considered a mitigating factor.
10. ____. Cooperation during attorney disciplinary proceedings and remorse are rele-
vant mitigating factors.
Original action. Judgment of probation.
John 	W. 	Steele, 	Assistant 	Counsel 	for 	discipline, 	for
relator.
No appearance for respondent.
heavican, c.J., connolly, geRRaRd, stephan, mccoRmack ,
and milleR-leRman, JJ.
peR cuRiam.
INtrOdUCtION
relator, the Counsel for discipline of the Nebraska Supreme
Court, filed formal charges against respondent, robert J.
pierson, alleging that he violated his oath of office as an attor-
ney licensed in Nebraska, Neb. rev. Stat. § 7-104 (reissue
2007), and the following provisions of the Nebraska rules of
professional Conduct: Neb. Ct. r. of prof. Cond. §§ 3-501.15
(safekeeping property) and 3-508.4 (misconduct). the formal
charges arose out of the manner in which respondent handled
the proceeds resulting from the settlement of his clients’ per-
sonal injury lawsuit. When respondent initially distributed the
settlement funds, State farm Mutual Automobile Insurance
Company (State farm) did not receive its subrogation interest
674 	281 NebrASkA repOrtS

from the claim, due to what appeared to be a lost check.
State farm contacted respondent repeatedly. After submitting a
grievance to relator, State farm received its money more than 1
year after the intended distribution.
A hearing was held on the formal charges before a referee.
the referee found that respondent violated the Nebraska
rules of professional Conduct. With respect to discipline, the
referee recommended that respondent receive 2 years’ proba-
tion with monitoring conditions. relator filed exceptions to
the referee’s report, asserting that the recommended disci-
pline was too lenient for the misconduct involved. We find
that respondent violated the Nebraska rules of professional
Conduct. However, because we conclude that the recom-
mended discipline is not too lenient, we reject relator’s excep-
tion with respect to discipline. Accordingly, we order respond-
ent to be placed on 2 years’ probation under the conditions
outlined below.
StAteMeNt Of fACtS
relator filed formal charges against respondent on March
24, 2010. In the charges, relator alleged that respondent vio-
lated his oath of office as an attorney licensed to practice law
in the State of Nebraska and §§ 3-501.15 and 3-508.4 of the
rules of professional conduct.
the allegations arose out of respondent’s settlement of a
personal injury lawsuit. respondent’s clients received settle-
ment proceeds, which respondent deposited in his trust account.
State farm had a subrogation interest in the claim. the case
was settled in december 2007, and respondent distributed the
proceeds of the settlement in february 2008. respondent testi-
fied that he wrote checks to his clients, to his firm for fees, and
to State farm to cover its subrogation interest.
In August 2008, respondent learned from State farm that it
had not received its check in the amount of $4,094.68. When
respondent learned that State farm had not received its check,
he called his bank and was erroneously told that the check
had cleared. respondent took no further action concerning
this matter.
State farm indicated that it made multiple unsuccessful
attempts to secure payment from respondent. Having exhausted
StAte ex reL. COUNSeL fOr dIS. v. pIerSON 	675
Cite as 281 Neb. 673

attempts to secure payment from respondent, State farm con-
tacted relator. respondent acknowledged that it took over a
year to resolve the matter.
In the course of the investigation, respondent provided his
trust account records to relator and relator claims that it deter-
mined that numerous times after february 25, 2008, the bal-
ance of respondent’s trust account fell below $4,094.68, the
amount that should have been in his trust account to cover the
check to State farm.
A hearing on the matter was had before a referee, at which
hearing evidence was received. respondent admitted that at
times, his trust account balance would not have covered the
State farm check had it cleared. At the hearing, respondent
acknowledged his negligence which resulted in a violation of
the Nebraska rules of professional Conduct. As an explanation
for his actions and inappropriately reacting to the fact that State
farm had not received the subrogation proceeds in february
2008, respondent stated that during the period in question, he
was experiencing various problems. respondent stated that he
was suffering from health problems and that his fiance had
died a few months before the settlement. respondent indicated
that for a year after her death, he “wasn’t thinking clearly.”
respondent also indicated that he did not have a secretary.
respondent acknowledged that during the period when the
check was missing, he “dropped the ball” and should have been
involved in counseling.
the referee issued a report on September 8, 2010. In his
report, the referee noted that respondent did not have prior dis-
ciplinary problems in either Nebraska or Iowa, where respond-
ent is also licensed to practice law. the referee found that
respondent had violated §§ 3-501.15 and 3-508.4 of the rules
of professional conduct. the referee recommended that respond-
ent be placed on probation for a period of 2 years and that the
probation include an audit of respondent’s trust account by a
certified public accountant at respondent’s expense. Such audit
would be conducted at the end of each year. further, if respond-
ent committed any further rule violations, he would be subject
to suspension or disbarment.
676 	281 NebrASkA repOrtS

On September 17, 2010, relator filed exceptions to the ref-
eree’s report, asserting that the recommended sanction was too
lenient. respondent did not file exceptions.
ANALYSIS
[1-4] A proceeding to discipline an attorney is a trial de
novo on the record. State ex rel. Counsel for Dis. v. Switzer,
280 Neb. 815, 790 N.W.2d 433 (2010). to sustain a charge in
a disciplinary proceeding against an attorney, the Counsel for
discipline must establish a charge by clear and convincing evi-
dence. Id. When no exceptions to the referee’s findings of fact
are filed, we may consider the referee’s findings final and con-
clusive. Id. We have stated that “the basic issues in a discipli-
nary proceeding 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. Petersen,
272 Neb. 975, 981-82, 725 N.W.2d 845, 850 (2007).
In this case, neither respondent nor relator takes exception
to the referee’s findings that he violated the rules of profes-
sional conduct; rather, relator takes exception to the referee’s
recommended discipline, which relator asserts is too lenient.
When no exceptions to the findings of fact are filed, we may
consider the referee’s findings final and conclusive, which we
do in the present case. based on the foregoing evidence, we
conclude that by virtue of respondent’s conduct, respondent has
violated §§ 3-501.15 and 3-508.4 of the rules of professional
conduct. the record also supports a finding by clear and con-
vincing evidence that respondent violated his oath of office as
an attorney, § 7-104, and we find that respondent has violated
said oath. Having found violations of the rules of professional
conduct, we will limit the remainder of our discussion to the
appropriate discipline.
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
StAte ex reL. COUNSeL fOr dIS. v. pIerSON 	677
Cite as 281 Neb. 673

(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, Neb. Ct. r. § 3-310(N) of the disciplinary rules.
[5] to determine whether and to what extent discipline
should be imposed in an attorney discipline proceeding, we
consider the following factors: (1) the nature of the offense, (2)
the need for deterring others, (3) the maintenance of the repu-
tation 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. State
ex rel. Counsel for Dis. v. Switzer, supra.
[6,7] In imposing attorney discipline, we evaluate each case
in the light of its particular facts and circumstances. Id. In
determining the proper discipline of an attorney, we consider
the attorney’s acts both underlying the events of the case and
throughout the proceeding. Id.
[8] When determining appropriate discipline of an attorney,
we consider aggravating and mitigating factors. Id.
[9,10] regarding mitigation, we have stated that an isolated
incident not representing a pattern of conduct is considered
a mitigating factor. Id. Cooperation during attorney discipli-
nary proceedings and remorse are also relevant mitigating fac-
tors. Id.
the evidence in the present case establishes, among other
facts, that respondent failed to properly maintain his office
records and the funds in his trust account. the referee indi-
cated, and we agree, that there are several mitigating factors
weighing in respondent’s favor, including that respondent has
had no prior complaints and was cooperative and responsive
throughout the proceedings. further in favor of mitigation, we
note that the exact amount of money which respondent’s trust
account would have been “out of trust” during the period that
State farm had not been paid was not in evidence, the evidence
678 	281 NebrASkA repOrtS

did not show willful misconduct, there was no dispute that
respondent initially sent a check that was not received, and
respondent was dealing with the death of his fiance and health
issues at the time of the conduct at issue.
relator asserts that the referee’s recommended discipline
of 2 years’ probation is too lenient. Upon due consideration
of the facts of this case, and giving consideration to the sev-
eral mitigating factors weighing in respondent’s favor, we
disagree. Accordingly, we determine that the proper sanction
in this case is probation with the conditions outlined below.
repondent’s probation shall start on the date this opinion is
filed. respondent is directed to submit a probation plan for
approval by this court within 30 days after this opinion is filed.
the probation plan shall provide for supervision by an identi-
fied monitoring lawyer licensed in the State of Nebraska who
shall agree to supervise respondent’s office management and
compliance with the rules of professional conduct and shall
further agree to report any violation of the rules of professional
conduct to relator. the monitoring lawyer shall sign a separate
declaration reflecting agreement to the foregoing terms, and
respondent shall attach such declaration as an exhibit to his
probation plan. respondent’s probation shall be completed 2
years after this court approves respondent’s probation plan.
further, respondent shall submit compliance reports quarterly
to relator. the quarterly reports shall be approved by the moni-
toring lawyer and shall show compliance with trust account
requirements and show that respondent is adhering to practices
which demonstrate his periodic review of his trust account bal-
ance. further, respondent must submit to an audit of his trust
account by a certified public accountant at his own expense, to
be conducted at the end of each year during respondent’s term
of probation. If respondent commits further violations of the
Nebraska rules of professional Conduct, he shall be subject to
revocation of his probation and the imposition of other disci-
pline as outlined in disciplinary rule § 3-304.
CONCLUSION
the court finds that respondent violated §§ 3-501.15 and
3-508.4 of the rules of professional conduct and his oath as
StAte ex reL. COUNSeL fOr dIS. v. pIerSON 	679
Cite as 281 Neb. 673

an attorney, Neb. rev. Stat. § 7-104. It is the judgment of this
court that respondent should be and is hereby placed on proba-
tion commencing on the filing of this opinion and that respond-
ent is ordered to submit a probation plan for approval by this
court within 30 days of the date of filing of this opinion. the
probation plan must show supervision of respondent by a moni-
toring lawyer licensed in the State of Nebraska on the terms
listed previously in this opinion, with compliance reports to be
submitted quarterly to relator by respondent and approved by
the monitoring lawyer. respondent’s probation shall terminate
2 years after this court approves the submitted probation plan.
further, respondent must submit to an audit of his trust account
by a certified public accountant at his own expense, to be con-
ducted at the end of each year during respondent’s term of pro-
bation. We also direct respondent to pay costs and expenses in
accordance with Neb. rev. Stat. § 7-115(2) (reissue 2007) and
§ 3-310(p) and Neb. Ct. r. § 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 pRobation.
wRight, J., not participating.
state of nebRaska , appellee , v.
teRence w. neRo, appellant.
798 N.W.2d 597
filed June 3, 2011. 	No. S-10-457.
1. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision of the court below.
2. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact.
3. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
680 	281 NebrASkA repOrtS