State ex rel. Counsel for Dis. v. Walocha

CONCLUSION
The district court erred in remanding the matter of the setoff
to the county court. Determining the City’s lien and whether
and to what amount it should be deducted from the condemna-
tion award was a judicial matter within the jurisdiction of the
district court. It was properly presented to the district court
through a timely motion by the City. We vacate the county
court’s order of setoff. We reverse, and remand to the district
court to determine the extent to which the proceeds from the
award should be given to the City in payment of its lien on the
condemned property.
Vacated in part, and in part reVersed
and remanded with directions.
state of nebraska ex rel . counsel for discipline
of the nebraska supreme court, relator , V.
daVid m. walocha , respondent.
811 N.W.2d 174
Filed March 9, 2012. 	No. S-11-422.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. ____. The basic issues in a disciplinary proceeding against an attorney are
whether the Nebraska Supreme Court should impose discipline and, if so, the
appropriate discipline under the circumstances.
3. ____. 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.
4. ____. In imposing attorney discipline, the Nebraska Supreme Court evaluates
each case in light of its particular facts and circumstances.
5. ____. In imposing attorney discipline, the Nebraska Supreme Court considers the
discipline that it has imposed in cases presenting similar circumstances.
6. ____. 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.
7. ____. When determining appropriate discipline of an attorney, the Nebraska
Supreme Court considers aggravating and mitigating factors.
474 	283 NebrASkA repOrTS
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www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

8. ____. because cumulative acts of attorney misconduct are distinguishable from
isolated incidents, they justify more serious sanctions. Cumulative acts of mis-
conduct can, and often do, lead to disbarment.
Original action. Judgment of disbarment.
kent 	L. 	Frobish, Assistant 	Counsel 	for 	Discipline, 	for
relator.
robb N. Gage for respondent.
heaVican, c.J., wright, connolly, stephan, mccormack ,
and miller-lerman, JJ.
per curiam.
The Counsel for Discipline filed formal charges against
David M. Walocha, accusing him of practicing law for over
a decade on a suspended license. The Counsel for Discipline
asks that we disbar Walocha. because we conclude that no
other sanction adequately disciplines Walocha for his years of
violations, we disbar him.
bACkGrOUND
All we have before us are the formal charges filed by the
Counsel for Discipline and Walocha’s admissions to them.
Walocha has admitted all of the formal charges that the
Counsel for Discipline has alleged against him. The Counsel
for Discipline moved for judgment on the pleadings.1 The only
issue before us is the appropriate sanction.
Walocha was admitted to the bar on September 22, 1994. On
June 21, 1996, however, we suspended his license for failure to
pay his bar dues. We never reinstated it.
Nevertheless, beginning in 1998 and continuing through
2011, Walocha engaged in the practice of law. He entered
appearances in at least 65 criminal cases in Douglas County,
Nebraska. At least one of these cases involved felony charges.
He provided legal advice and charged his clients fees for his
appearances. Further, in pleadings he filed, he represented him-
self to be a licensed attorney—which was not true.
1 See Neb. Ct. r. § 3-310(I).
STATe ex reL. COUNSeL FOr DIS. V. WALOCHA 	475
Cite as 283 Neb. 474

STANDArD OF reVIeW
[1] A proceeding to discipline an attorney is a trial de novo
on the record.2
ANALYSIS
[2,3] The basic issues in a disciplinary proceeding against
an attorney are whether we should impose discipline and, if so,
the appropriate discipline under the circumstances.3 To deter-
mine 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 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 fit-
ness to continue in the practice of law.4
[4-6] In imposing attorney discipline, we evaluate each case
in light of its particular facts and circumstances.5 but we con-
sider the discipline that we imposed in cases presenting similar
circumstances.6 And 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.7
[7,8] When determining appropriate discipline, we consider
aggravating and mitigating factors.8 because cumulative acts
of attorney misconduct are distinguishable from isolated inci-
dents, they justify more serious sanctions.9 “‘Cumulative acts
of misconduct can, and often do, lead to disbarment.’”10
2 State ex rel. Counsel for Dis. v. Switzer, 280 Neb. 815, 790 N.W.2d 433
(2010).
3 Id.
4 Id.
5 Id.
6 See id.
7 Id.
8 Id.
9 Id.
10 Id. at 822, 790 N.W.2d at 439, quoting State ex rel. Counsel for Dis. v.
Carbullido, 278 Neb. 721, 773 N.W.2d 141 (2009).
476 	283 NebrASkA repOrTS

As mentioned, Walocha’s misconduct spans over a decade.
In fact, his violations occurred under two separate codes of
ethics. His violations before September 1, 2005, constituted
violations of his oath of office as an attorney; Neb. rev. Stat.
§ 7-101 (reissue 2007), which is a statute imposing a criminal
sanction for the unauthorized practice of law; and the following
provisions of the Code of professional responsibility: Canon
1, Dr 1-102 (attorney misconduct), Canon 3, Dr 3-101 (unau-
thorized practice of law), and Canon 7, Dr 7-102.
His violations after September 1, 2005, again constituted
violations of his oath of office; § 7-101; and certain provisions
of the Nebraska rules of professional Conduct we adopted
in 2005,11 namely, Neb. Ct. r. of prof. Cond. §§ 3-505.5
(rev. 2012) (unauthorized practice of law) and 3-508.4 (attor-
ney misconduct).
The only allegations the Counsel for Discipline alleges
against Walocha are that he practiced law during suspension.
As mentioned, an important part of determining what discipline
to impose is to consider the discipline we have imposed in sim-
ilar circumstances. We generally, but not always, disbar attor-
neys who continue to practice law despite their suspensions.12
Walocha argues that some of these cited cases involved other
unethical conduct in addition to practicing on a suspended
license. His stress on the particular facts of each case is well
placed, as we evaluate each case in light of its particular facts
and circumstances.13
Nonetheless, we do not think the differences between this
case and our earlier cases are sufficient to lead to a different
11 See State ex rel. Counsel for Dis. v. Thew, 281 Neb. 171, 794 N.W.2d 412
(2011).
12 See, Switzer, supra note 2; Carbullido, supra note 10; State ex rel. Counsel
for Dis. v. Villarreal, 267 Neb. 353, 673 N.W.2d 889 (2004); State ex rel.
NSBA v. Stansel, 248 Neb. 63, 531 N.W.2d 927 (1995); State ex rel. NSBA
v. Schafer, 234 Neb. 862, 453 N.W.2d 389 (1990); State ex rel. NSBA
v. Frank, 219 Neb. 271, 363 N.W.2d 139 (1985); State ex rel. NSBA v.
Thierstein, 218 Neb. 603, 357 N.W.2d 442 (1984). but see, State ex rel.
Counsel for Dis. v. Frye, 278 Neb. 527, 771 N.W.2d 571 (2009); State ex
rel. NSBA v. Garvey, 235 Neb. 737, 457 N.W.2d 297 (1990); State ex rel.
NSBA v. Schafer, 227 Neb. 449, 418 N.W.2d 228 (1988).
13 See Switzer, supra note 2.
STATe ex reL. COUNSeL FOr DIS. V. WALOCHA 	477
Cite as 283 Neb. 474

result. 	Walocha’s 	(at 	least) 	65 	instances 	of 	misconduct
spanned over a decade. every pleading, every court appear-
ance, every meeting with a client constituted a separate act
of dishonesty. He continuously lied to clients, to other attor-
neys, and to courts. “‘Cumulative acts of misconduct can, and
often do, lead to disbarment.’”14 His misconduct is egregious
and unacceptable.
Under Neb. Ct. r. § 3-304, we may impose the following
sanctions for misconduct: disbarment, suspension, probation,
or censure and reprimand. We conclude that of these possible
sanctions, disbarment is the only sanction that reflects the seri-
ousness of Walocha’s deceitful misconduct.
Given the quantity of serious violations, a censure, rep-
rimand, or suspension is inadequate discipline. Walocha’s
license has been suspended since June 1996, which, at this
point, is almost 16 years ago. If we were to continue to sus-
pend his license, we would be returning Walocha to the status
quo, which is really no sanction at all. Further, suspending
Walocha was not enough to keep him from engaging in mis-
conduct and putting the interests of his clients at risk in the
past. We see no reason to assume that this has changed. Our
attorney disciplinary system is, in large part, based on self-
reporting and honesty. Walocha’s conduct made a mockery of
such concepts.
Accordingly, no sanction less than disbarment adequately
reflects the seriousness of Walocha’s misconduct. Walocha
willfully flew under the radar for over a decade. We conclude
that disbarment is the appropriate sanction for Walocha’s trans-
gressions. Walocha shall comply with all the terms of Neb.
Ct. r. § 3-316, and upon failure to do so, shall be subject to
punishment for contempt of this court. Further, Walocha is
ordered to pay the costs and expenses of this proceeding in
accordance with Neb. rev. Stat. §§ 7-114 and 7-115 (reissue
2007) and Neb. Ct. r. §§ 3-310(p) and 3-323 within 60 days
after an order imposing costs and expenses, if any, is entered
by the court.
Judgment of disbarment.
14 Id. at 822, 790 N.W.2d at 439, quoting Carbullido, supra note 10.
478 	283 NebrASkA repOrTS